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Himachal Pradesh High Court · body

2013 DIGILAW 57 (HP)

Satya Prakash v. State of H. P.

2013-01-09

R.B.MISRA, SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J: By means of the present writ petition, the petitioner, who is a Lecturer (History) in the Education Department, has challenged his transfer order dated 29.9.2012 (Annexure P-2) from Government Senior Secondary School (Girls) Rampur, District Shimla to Government Senior Secondary School Bahali (Shimla) within 7 months and seeks mandamus to allow him to continue at the same station and to cancel the transfer of 3rd respondent a Para-teacher (not regularly appointed), in his place circumventing the various judgments passed by this Court. 2. This Court has already expressed its clear cut view in various judgments that regularly appointed lecturers/teachers should not be shifted only with a view to accommodate Para-teachers/ lecturers, who have been appointed without following the regular recruitment process provided under the R & P Rules. Thus, finding a prima-facie case in favour of the petitioner, this Court vide order dated 27.9.2012 passed in CMP No.12150 of 2012 had stayed the impugned order and the petitioner was permitted to continue at Government Senior Secondary School (Girls), Rampur and the 3rd respondent to function at Government Senior Secondary School, Luhri, i.e. the same station. 3. We called for the reply of the respondents. Respondents No.1 and 2 in their reply besides taking usual pleas of exigency of service and it being a transferable post, they took up the plea that the petitioner was appointed as Lecturer on 17.5.2000 and remained posted at Taklech, Jhakri, Dutt Nagar and Rampur within a radius of 15 Kilometers since the year 2009 and the orders of competent authority were taken. The private respondent submitted that on account of the transfer of the petitioner, the post of Lecturer fell vacant, thus he was transferred in place of the petitioner against vacancy in public interest and he did not manipulate the transfer of the petitioner in any manner. 4. We have also called for the Departmental record for its examination. On its perusal, we find that there is great force in the submissions made by the learned Counsel for the petitioner that sporadic transfer was only made to accommodate the private respondent, a Para-teacher after creating vacancy on the same day. 5. 4. We have also called for the Departmental record for its examination. On its perusal, we find that there is great force in the submissions made by the learned Counsel for the petitioner that sporadic transfer was only made to accommodate the private respondent, a Para-teacher after creating vacancy on the same day. 5. In CWP No.3437 of 2010: titled Anuradha Garg v. State of HP & Others, decided on 28.6.2010, the Principal Bench while dealing with the eligibility in the matter of transfer was posed with the question whether the question of normal tenure can be examined at the instance of a Para-teacher who had been appointed on contract basis in a particular school. It was observed that it is not in dispute that originally it was not permissible as far as contract employees were concerned. But in that judgment it was noted that the Government had issued Office Memorandum dated 13.8.2009 in this regard which reads as follows:- “ The undersigned is directed to invite a reference to this Department Office Memorandum of even number dated 10th April, 2008 vide which Guiding Principles for effecting transfers of State Government employees have been circulated. The matter with regard to extending the provisions of these Guiding Principles to the employees as are appointed on contract basis by various Departments and Para Teachers and Gramin Vidya Upasak of Education Department was under consideration of the Government. Now it has been decided by the government that the Contract appointees of all the Departments and Para Teachers and Gramin Vidya Upasak in Education Department, who have completed ‘five’ years tenure at one place of posting will be eligible for transfer on need based basis where ever required on administrative grounds.” 6. Thus it was clear from the Office Memorandum extracted above that the contract employees become eligible to make a request for transfer on completion of five years tenure at the present place of posting. Equally, the department on administrative grounds is entitled to transfer a contract employee after five years of tenure at one place. In Anuradha Garg’s case supra, this Court held that the contract employees are not entitled for transfer as of right, so as to disturb the regularly appointed employees, even when the regularly appointed employee has completed the normal tenure. Equally, the department on administrative grounds is entitled to transfer a contract employee after five years of tenure at one place. In Anuradha Garg’s case supra, this Court held that the contract employees are not entitled for transfer as of right, so as to disturb the regularly appointed employees, even when the regularly appointed employee has completed the normal tenure. It is thus clear from the Office Memorandum extracted above that the eligibility of a contract employee for transfer will depend on two conditions; (i) the same will be considered only on need basis; and (ii) the same will be done only on administrative grounds. These are to be read, understood and applied qua the contract employees and not qua a regular employee to be transferred so as to accommodate a contract employee. It was also clarified that in case a regularly appointed employee has to be transferred on any administrative grounds and in case there is a vacancy available on account of such transfer, it would certainly be open to the contract employee to point out such vacancy remaining unfilled and in that situation that request has to be considered. In other words, the norms do not entitle a contract employee to make a request for transfer by transferring a regular employee. Therefore, it was made clear that the eligibility of the contract employee to request for transfer and consideration of that request would depend only on availability of the vacancy. 7. In the instant case, on the perusal of the relevant file maintained by the Director of the Higher Education, it is revealed that the sporadic proposal for the transfer of the petitioner and request of the private respondent a Para-teacher for his adjustment at the place of the petitioner both were received on 10.9.2012. In fact, the Department had proposed that the petitioner was working in GSSS (G) Rampur with effect from 18.2.2012 and was having a short stay in the present place of posting by clubbing his previous. Therefore, permission was sought from the Hon’ble Chief Minister on the ground that the distance between Government Senior Secondary School, Duttnagar and Government Senior Secondary School (G) Rampur had been only 14 kilometers and the post of Lecturer (History) was lying vacant in GSSS, Bahali (Shimla). Therefore, permission was sought from the Hon’ble Chief Minister on the ground that the distance between Government Senior Secondary School, Duttnagar and Government Senior Secondary School (G) Rampur had been only 14 kilometers and the post of Lecturer (History) was lying vacant in GSSS, Bahali (Shimla). In case the request of the Department is allowed, in that event the condonation of short stay at the present place of the petitioner was sought in relaxation to transfer policy. 8. The second respondent had processed both the proposals on 10.9.2012, but the case of petitioner was sent to the Hon’ble Chief Minister on 17.9.2012 which was approved, then on 18.9.2012 the case of the private respondent was sent to the Hon’ble Chief Minister for approval, which was done. The perusal of the record shows that it was the private respondent who manipulated the transfer of petitioner. This, we gather from the facts that both the proposals were processed by the Department on 10.9.2012. How the private respondent could know that the petitioner is likely to be transferred and he made his request for his adjustment at his place. The second respondent instead of sending both the requests together, firstly created the post for the private respondent a Para-teacher and then sent his case for approval of the Hon’ble Chief Minister. Consequently, the impugned order Annexure P-2 dated 20.9.2012 transferring the petitioner to Government Senior Secondary School, Bahali and on the same day the private respondent vide Annexure R-3/1 was ordered to be transferred at his place against the vacancy created in the above manner only to circumvent the judgments passed by this Court including in Anuradha Garg’s case supra, which is impermissible. The settled principles of law cannot be allowed to be circumvented in such a manner. 9. Therefore, for the aforesaid reasons, the petition is allowed, the impugned orders of transfer of the petitioner Annexure P-2 and that of private respondent Annexure R-3/1 are hereby quashed and set aside, being not in accordance with law and in pubic interest. Pending application(s), if any, shall also stand disposed of and interim orders shall also stand vacated. 10. Record of the Director of Higher Education is hereby returned to Shri J.S. Rana, learned Assistant Advocate General.