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2014 DIGILAW 29 (HP)

Rajender Singh Chandel v. State of H. P.

2014-01-04

DHARAM CHAND CHAUDHARY, SANJAY KAROL

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JUDGMENT Sanjay Karol, Judge (Oral) Vide order dated 16.09.2013 (Annexure P-3), One Shri Suresh Chand, Assistant Professor (Maths), was transferred from Government Degree College, Palampur, District Kangra to Government Degree College, Dehri, District Kangra, vice Shri Rajesh Kumar, present respondent No.3, who undisputedly is engaged as Assistant Professor (Maths), on contract basis. This order of transfer was quashed by this Court vide judgment dated 28.11.2013, passed in CWP No.7684 of 2013, titled as Suresh Chand v. State of H.P. and others. Relevant portion of the judgment, on which petitioner herein seeks reliance, is reproduced herein under: “5. That apart, we notice that private respondent, who is engaged on contract basis, has displaced a regular employee. Whether a person engaged on contract basis can replace a regularly appointed person, is a question which, in our considered view, needs to be examined by the respondents-State at their own level. Prima facie, we have doubt with regard to the same. However, we do not express any definite opinion about the same. 6. But what we find is that respondents have not been able to explain as to why only petitioner was chosen to be shifted out of Baijnath, whereas record reveals that one Shri R.S. Chandel (not a party to the present lis) has remained posted in and around Dharamshala, Palampur and Baijnath since 25.4.2003. Tenure of this person at Baijnath is more than that of the present petitioner. 7. We notice that there is no complaint against the petitioner, which prompted his transfer. It is also not the case of the State that petitioner’s services are better required at Dehri. Request was made by private respondent Shri Rajesh Kumar for his adjustment at a place which is closer to the Medical College and Hospital at Tanda, where he is undertaking medical treatment. This alone is the reason for transfer. 8. In our considered view, action of the respondents in choosing the petitioner alone, while considering adjustment of private respondent, cannot be said to be in consonance with the provisions of law. Arbitrariness, in the given facts, in our considered view, is writ large. State has also not explained as to why private respondent cannot be allowed to continue to discharge his duties at Nagrota Bagwan. 9. Action of the respondents-State, in our considered view, cannot be said to be legal, reasonable or justified in the given facts and circumstances. Arbitrariness, in the given facts, in our considered view, is writ large. State has also not explained as to why private respondent cannot be allowed to continue to discharge his duties at Nagrota Bagwan. 9. Action of the respondents-State, in our considered view, cannot be said to be legal, reasonable or justified in the given facts and circumstances. As such, we quash the impugned order of transfer dated 16.9.2013 (Annexure P-1), leaving it open for the private respondent to approach the authorities for his adjustment at a suitable place, in accordance with law.” 2. Pursuant to directions issued by this court, respondent No.1 issued the impugned order dated 16.12.2013 (Annexure P-1), cancelling transfer of Shri Suresh Chand. Vide same order, present petitioner Shri R.S. Chandel stands transferred from Government Degree College, Palampur, District Kangra to Government Degree College, Dehri, District Kangra, where respondent Sh.Rajesh Kumar now stands adjusted. 3. Having heard learned counsel for the parties as also perused the record, we are of the considered view that there is no merit in the present petition. It cannot be said that action of the respondents-State is arbitrary, illegal, capricious, whimsical or unreasonable. 4. While contending that an employee engaged on contractual basis cannot replace a regularly appointed employee, Mr. Vinay Kuthiala, Senior Advocate, learned counsel appearing for the petitioner, has invited our attention to the instructions dated 22.8.2012 and 20.9.2012 and the judgment dated 28.6.2010, delivered by Coordinate Bench of this Court in CWP No.3437 of 2010, titled as Anuradha Garg v. State of H.P. and others. 5. It be only observed that Policy under consideration in Anuradha (supra), now stands superseded vide Office Memorandum dated 10.7.2013. No doubt, vide instructions dated 22.8.2012, a contract employee could be transferred after completion of a period of three years, on need basis, only against a vacant post or a contract employee, but new Policy does not postulate such restriction. Even a contract employee can be transferred, based on administrative exigency. There is no bar that a regularly appointed employee cannot be replaced by a contract employee. 6. It would be beneficial to observe that new Policy dated 10.7.2013, captioned as “Comprehensive Guiding Principles-2013” for regulating the transfer of State Government employees, was framed pursuant to directions issued by this Court in CWP No.2387 of 2012, titled as Alka Chakor v. State of H.P. and others. 7. 6. It would be beneficial to observe that new Policy dated 10.7.2013, captioned as “Comprehensive Guiding Principles-2013” for regulating the transfer of State Government employees, was framed pursuant to directions issued by this Court in CWP No.2387 of 2012, titled as Alka Chakor v. State of H.P. and others. 7. Perhaps, Office Memorandum dated 12.7.2013 was not brought to the notice of the Bench, at the time of pronouncement of judgment in Suresh Chand (supra). In any event, there is no positive finding in para-5 of the said judgment, on which much emphasis is laid, that a contract employee cannot replace a regularly appointed employee. 8. Learned Advocate General, ably assisted by Mr. Anup Rattan, learned Additional Advocate General, in a painstaking manner has taken us through the record, from which we find that petitioner remained posted in and around the place of his residence, within a radius of 20 kms, for more than 11 years. We find that private respondent has also remained posted in and around his place of residence for more than six years, but then there is a reason for the authorities to have accommodated him. He is suffering from chronic liver disease. 9. Noticeably, petitioner has been transferred only to Palampur, which is just at a distance of 35 kms from his place of residence. He has never served in a hard/tribal/difficult area, where unfortunately children are suffering from lack of posting of adequate teachers. But then, whom to post where and when, is the sole prerogative of the State, but of course within the settled parameters of law. 10. In the instant case, action of the respondents-State is justified; transfer of the petitioner is based on administrative exigency and in public interest. In view of the observations made herein above, the present writ petition, without any merit, is dismissed. Pending application(s), if any, also stands disposed of.