Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 8 (HP)

Rikhi Ram Kaundal v. State of HP.

2013-01-01

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT Dharam Chand Chaudhary, J. Aggrieved by his transfer from Government College, Bilaspur to Government College, Kullu vide order dated 2.5.2012 (Annexure P-5), the petitioner has filed this writ petition for quashing the same. 2. The challenge to the impugned order is on the grounds, inter alia, that he being an Associate NCC Officer, holding the rank of Lieutenant and having undergone three refresher courses at Southern Naval Command, Cochin, Eastern Naval Command, Vishakhapatnam and again at Eastern Naval Command, Vishakhapatnam on Government expenses and while on duty, in view of the decisions Annexures P-1 to P-4 taken by the respondent-State at various levels, he could have not been transferred to a station where Naval Wing of NCC does not exist. However, in violation of the decisions so taken in respect of the posting of the Lecturers who are holding the position as Associate NCC Officer also, the petitioner has been transferred to Government College, Kullu, where NCC (Naval Wing) does not exist. Also that the impugned order of transfer has been issued to accommodate three Lecturers who one after the other came to be transferred to Government College, Kullu, however, at the instance of few politically strong and influential persons dictate terms to the Government, managed their adjustment at the places of their choice and the petitioner to the contrary transferred to Kullu in an illegal and arbitrary manner. 3. Annexed to the writ petition was an application registered as CMP No.4763 of 2012 for issuance of a direction in the interim to stay the implementation and execution of impugned order, Annexure P-5 during the pendency of the writ petition. On 7.5.2012, following order came to be passed in this writ petition:- “Dasti notice to the 2nd respondent. In case the petitioner has not been relieved as on today, further proceedings in that regard shall be deferred for the time being. However, we make it clear that this order shall not come in the way of the petitioner, being shifted to any college where there is NCC. Reply within two weeks.” 4. The respondent-State on entering appearance has contested the writ petition. In a nut shell, it is pleaded that the petitioner basically is Lecturer, Economics (College Cadre) and his primary job is to teach the students in the college, whereas NCC activities in Educational Institutions are extra curriculum activities, hence, secondary in nature. Reply within two weeks.” 4. The respondent-State on entering appearance has contested the writ petition. In a nut shell, it is pleaded that the petitioner basically is Lecturer, Economics (College Cadre) and his primary job is to teach the students in the college, whereas NCC activities in Educational Institutions are extra curriculum activities, hence, secondary in nature. The decision qua posting of a teacher, who is NCC Officer also, referred to in the writ petition are stated to be in the nature of executive instructions and do not confer any enforceable right upon the claimant nor on the basis thereof he is entitled to be posted at a place of his choice. 5. As said hereinabove that in the interim, the implementation of the impugned order was stayed with clarification that such order shall not come in the way of the petitioner being shifted to any college where there exists NCC (Naval Wing), therefore, vide order passed in this writ petition on 1.11.2012, the respondent-State was directed to file a supplementary affidavit pointing out the names of other Lecturers, NCC (Naval) Officer, posted in Government College, Bilaspur and that if the petitioner is transferred to any other college, their capability to take care of NCC (Naval) activities in the college. 6. The supplementary affidavit so filed reveals that except for the petitioner, one more teacher, namely, P.S. Chauhan, Associate Professor (Zoology), duly trained in Naval Wing of NCC, is also posted in Government College, Bilaspur and capable of taking care of NCC activities there. In counter affidavit, the petitioner, however, has pointed out that Shri P.S. Chauhan, aforesaid is to retire on attaining the age of 55 years in February, 2013 and as such, none will be available thereafter to take care of NCC activities in the college. Also that the respondent-State has taken a decision to introduce NCC as an elective subject in two government colleges, i.e. Dharamshala and Bilaspur. In view of huge strength of NCC cadets in Government College, Bilaspur, there will be demand of two NCC Officers in the said college. This has led in passing order dated 3.12.2012 in this writ petition, which reads as follows:- “Heard for some time. 1st Counter affidavit to the affidavit filed by respondent is stated to be filed, however, not on record. Be put up for further arguments therewith on 7th December, 2012. This has led in passing order dated 3.12.2012 in this writ petition, which reads as follows:- “Heard for some time. 1st Counter affidavit to the affidavit filed by respondent is stated to be filed, however, not on record. Be put up for further arguments therewith on 7th December, 2012. In the meanwhile, learned Additional Advocate General also to seek instructions as to in how many Government Colleges in the State, NCC (Naval Wing) exists and the status of posting of NCC (Naval) trained Lecturers/Teachers in those colleges.” 7. On the next date, i.e. 12.12.2012, this Court was informed by learned Additional Advocate General that there exists a post of Lecturer NCC (Naval Wing) in Government College Sarkaghat, and as such, the following order came to be passed on that day:- “Learned Additional Advocate General on written instructions, placed on record, has informed that there exists a post of Lecturer, NCC (Naval Wing) in Government Degree College, Sarkaghat (Mandi). The petitioner basically is Lecturer, Economics. If the post of Lecturer, Economics is also lying vacant in Government Degree College, Sarkaghat or the petitioner otherwise can be transferred in accordance with the transfer policy, the respondent-State may take appropriate decision accordingly, as vide interim order dated 7.5.2012, the petitioner can be transferred to any college where there is NCC. After taking decision, if any, instructions be passed on to the learned Additional Advocate General for being brought to the notice of this Court on the next date. Post on 24th December, 2012. Authenticated copy to the learned Additional Advocate General.” 8. Consequently, learned Additional Advocate General has placed on record written instructions, which reveal that there exist four sanctioned posts of Lecturer (Economics) in Government Degree College, Sarkaghat and out of which one post is lying vacant. Although in terms of the order supra, passed on the previous date, in the event of there being a post of Lecturer, Economics lying vacant in Government College, Sarkaghat, it was left open for the respondent-State to take an appropriate decision in the matter in the light of interim order dated 7.5.2012 referred to hereinabove, yet, vide written instructions, placed on record only the vacancy position has been disclosed. 9. 9. It is pertinent to note that the petitioner on his transfer in September, 2007 to Government College, Bilaspur is continuing till date and as such, he has completed more than his normal tenure at this station. He has no legal right to remain posted at a particular station beyond the normal tenure provided under the transfer policy. This Court finds force in his case that in Government College, Kullu, where he has been transferred, NCC (Naval Wing) does not exist and as per the decision taken by the respondent-State from time to time, a Lecturer who happens to be a NCC Officer also, deserves to be posted in a college where NCC activities exist. It is this aspect of the case of the petitioner which had weighed in the mind of this Court while passing interim order to defer further proceedings pursuant to impugned order, Annexure P-5, however, with the clarification that the order so passed shall not come in the way of the petitioner being shifted to any college where there exists NCC (Naval Wing). Meaning thereby that in the interim itself, this Court has clarified that the petitioner can be transferred to a college where the NCC activities exist. Now when the post of Lecturer (Economics) is lying vacant in Government College, Sarkaghat, where Naval Wing of NCC also exists, and no teacher to take care of NCC there is presently posted there, it is for the respondent-State to take a conscious decision in the matter and if deemed proper to transfer the petitioner to Sarkaghat. So far as this writ petition is concerned, no other and further order is warranted in the given facts and circumstances as highlighted supra. 10. No doubt, learned counsel has brought to the notice of this Court that the children of petitioner are studying in 8th and 10th class at Bilaspur and that the respondent-State may be directed to defer his transfer till 31st March, 2013. It is not deemed appropriate to issue any such direction to the respondent-State, more particularly, when the issue of transfer of the petitioner to a college where Naval Wing of NCC is also in existence to be considered by the respondent-State, however, this Court can reasonably expect from the respondent-State to consider any such request, if made by the petitioner to the competent authority, sympathetically and on humanitarian grounds. 11. 11. With the above discussion, this writ petition shall stand disposed of with a direction to the 1st respondent to take a decision in the matter of transfer of the petitioner in the light of the observations made hereinabove and till such decision is taken, the petitioner be allowed to continue in Government College, Bilaspur. Pending application(s), if any, also shall stand disposed of. No order as to costs.