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2013 DIGILAW 722 (HP)

SWARNA DEVI v. STATE OF H. P.

2013-08-08

A.M.KHANWILKAR, KULDIP SINGH

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JUDGEMENT A.M.KHANWILKAR, J. - 1. HEARD counsel for the parties. 2. THIS petition takes exception to the transfer order passed qua the petitioner, dated 21st May, 2013, transferring the petitioner from GPS, Anupali (Balh) to GPS, Shivakuthehar (Seraj-I). Only three grounds have been urged before us. The first ground is that the Model Code of Conduct came into force on 21st May, 2013 and as a result of which, the impugned transfer order could not have been passed by the Authority. Taking this point first, we have no hesitation in holding that the same is untenable and ill-advised. In the first place, the transfer order has been approved and conveyed by the Director of Elementary Education, Himachal Pradesh, Shimla, on 20th May, 2013 and not on 21st May, 2013, as is sought to be contended. The impugned office order is only a ministerial act undertaken by the Deputy Director (Elementary Education), Mandi, on 21st May, 2013. In any case, we fail to understand as to how, because of issuance of the Model Code of Conduct on 21st May, 2013, the transfer order would get vitiated by itself. 3. RELIANCE is placed on the condition specified in the compendium issued by the Election Commission of India. That, however, authorizes the Election Commission of India to reverse the position or any action taken by the Authority after the coming into force of the Model Code of Conduct. It is possible that the Election Commission of India may reject the request for reverting the position in a given case. It is not as if every transfer order will be reversed by the Election Commission of India as a matter of course. In any case, the provision contained in the compendium issued by the Election Commission of India cannot be the basis to assume that the office order, dated 21st May, 2013, issued by the Deputy Director (Elementary Education), Mandi is nullity and nonest in the eyes of law. As a result, we reject the first ground urged before us. 4. THE second contention of the petitioner is that the petitioner had spent only one year and one month in the present post and, therefore, the transfer was before the due period of three years, as specified by the Policy. This grievance has been refuted by the respondents by filing reply-affidavit. 4. THE second contention of the petitioner is that the petitioner had spent only one year and one month in the present post and, therefore, the transfer was before the due period of three years, as specified by the Policy. This grievance has been refuted by the respondents by filing reply-affidavit. In paragraph 2 of the reply-affidavit filed by the Director of Elementary Education, Government of Himachal Pradesh, it is stated as follows: "2. That in reply to this para it is submitted that as per information received from the Deputy Director of Elementary Education Mandi, District Mandi, the petitioner remained posted at Government Primary School, Lunapani (Balh) from 05-10-2009 to 02-04-2012 and thereafter the petitioner was transferred to Government Primary School, Anupali (Balh) and remained posted there w.e.f. 03-04-2012 to 22-05-2013. The distance between these schools is about 14 K.M. As such the petitioner has completed more than 03 years and 7 months within the radius of 14 K.M. It is further submitted that the transfer of the petitioner from Government Primary School-Anupali (Balh) to Government Primary School, Shivakuther (Seraj-I) has . been made with the prior approval of the competent authority by clubbing her stay in the radius of 15 K.M. with TTA/JT vice respondent No.4 i.e. Shakuntala Devi who was under transfer from Government Primary School, Kandhi (Balh) to Government Primary School, Shivakuther (Seraj-I) and vice-versa." The argument of the petitioner is that the factual position stated in this reply-affidavit is not accurate, but misleading. We are not inclined to accept this grievance of the petitioner. There is no reason to doubt the correctness of the factual position stated on affidavit by the officer, no less than the Director of Elementary Education. Considering the stand taken in paragraph 2 of the reply-affidavit, this ground urged before us also deserves to be stated to be rejected. 5. THAT takes us to the last argument canvassed before us, namely, that the impugned order has been passed qua the petitioner only to favour respondent No.4. Although this contention has been taken, the person who favoured respondent No.4 has not been named as party respondent in this petition. The allegation of malafide, being vague and without any specifics, cannot be taken forward. 6. Although this contention has been taken, the person who favoured respondent No.4 has not been named as party respondent in this petition. The allegation of malafide, being vague and without any specifics, cannot be taken forward. 6. ON perusal of the transfer order, it is noticed that the same is a routine transfer order passed by the office concerning 57 officers and not only qua the petitioner and respondent No.4 as such. Assuming that the Authority has accepted the representation made by respondent No.4 for some reason, that cannot be the basis to assume that the petitioner has been transferred with malafide intention. That being administrative exigency and keeping in mind Clause 22 of the Transfer Policy specifically dealing with the cause of teachers, no interference with regard to that approach of the Authority can also be countenanced. . As no other contention is raised, the petition is dismissed.