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2017 DIGILAW 1278 (HP)

Prem Thakur v. State Of Himachal Pradesh

2017-11-21

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

body2017
JUDGMENT Dharam Chand Chaudhary, J. (Oral) - The order dated 27.06.2017, Annexure P-2, passed by the Single Bench of Himachal Pradesh State Administrative Tribunal, Shimla (hereinafter referred to as the "Tribunal" in short), in Original Application No. 2977 of 2017, is under challenge in this writ petition. The relevant portion of this judgment reads as follows:- "3. Learned Senior Counsel for the applicant under instructions states that the applicant is apprehensive that in the event of representation, he may not get justice. 4. The facts and circumstances of the case are such that it requires a decision by an authority higher to 2nd respondent. Therefore, keeping in view the facts and circumstances of the case, the original application is disposed of with a direction that the applicant may file a comprehensive representation alongwith a certified copy of this order with a request for cancellation of his transfer to 1st respondent, through the Additional Chief Secretary (Economics & Planning) to the Government of Himachal Pradesh, within a week. 1st respondent shall decide the same after affording an opportunity of being heard to the applicant fairly and impartially by 15th July, 2017." 2. The complaint is that learned Tribunal despite the objection raised that the respondents are biased to the petitioner (original applicant), has ignored the same and to the contrary disposed of the original application with a direction to the petitioner to make representation to 1st respondent. It is averred that the Hon''ble Apex Court in a case titled State of West Bengal vs. Subhas Kumar Chatterjee, (20l0) 11 SCC 694, has categorically held that the power vested in the Administrative Tribunal under Article 323-A of the Constitution of India, cannot be relegated to anyone, including the Secretary to the department concerned. Also that when the allegations were levelled by the petitioner-original applicant against the superior officer, no useful purpose is likely to be served by way of making a representation to 1st respondent by him. The impugned order, as such, has been sought to be quashed and set aside. 3. The grouse of the petitioner-original applicant, as has been brought to learned Tribunal in the original application, in a nut shell, is that as per the settled legal principles he could have not been transferred on the basis of D.O. Note that too to accommodate 4th respondent, Nikka Ram. 4. 3. The grouse of the petitioner-original applicant, as has been brought to learned Tribunal in the original application, in a nut shell, is that as per the settled legal principles he could have not been transferred on the basis of D.O. Note that too to accommodate 4th respondent, Nikka Ram. 4. Admittedly, the transfer of the petitioner vide impugned order dated 21.06.2017, Annexure A-4, is originated on the basis of D.O. Note of the Chief Minister, Himachal Pradesh. The record now requisitioned by this Court, make it crystal clear that Shri Anirudh Singh, Member Legislative Assembly, Kasumpti Assembly Constituency, had submitted the U.O. Note dated 14.05.2017 to the Chief Minister of Himachal Pradesh and thereby requested the transfer of respondent No. 4 from the office of District Statistical Office Kullu to the office of Economic & Statistical Office Kasumpti, Shimla-9, either against a vacant post or person having longer stay. The request so made was approved by the Chief Minister. Consequently, the same was conveyed to 2nd respondent by the Chief Minister''s Secretariat vide U.O. No. Secy/CM-07062/2012-VIP-B-456776, dated 23.05.2017. As a matter of fact, the Chief Minister has ordered the transfer of respondent No. 4 from Kullu to Shimla, as desired by Shri Anirudh Singh, Member of Legislative Assembly. The 2nd respondent was asked to take necessary action and also to report compliance. Being so, the second respondent was left with no option except to report compliance to the direction of the Chief Minister. Though the matter when dealt with in the office of 2nd respondent, an effort was made to show that the transfer of the petitioner-original applicant from Shimla to Kullu, was in the public interest, but unsuccessfully for the reason that such efforts were made to give colour to the whole exercise with a view to justify the transfer of the petitioner-original applicant, because when the Chief Minister has approved the transfer of respondent No. 4 to Shimla and respondent No. 2 was asked to report compliance, no contrary decision could have been taken by the said respondent. The present, to our mind, therefore, is a clear-cut case of the transfer of the petitioner original applicant at the behest of political executive and on the basis of D.O. Note of Chief Minister, whose decision to transfer the petitioner-original applicant vice respondent No. 4, is influenced by U.O. Note of Shri Anirudh Singh, Member Legislative Assembly, Kasumpti Assembly Constituency, hence, not in the public interest but politically motivated. This Court in catena of judgments has deprecated the practice of transfer of an employee on the recommendation of the political executive. A reference in this regard can be made to the judgment of a Division Bench of this Court in Sanjay Kumar vs. State of Himachal Pradesh & Ors., 2013(3), Shimla Law Cases 1373. In an another judgment dated 09.01.2013, again rendered by a Division Bench of this Court, in CWP No. 5351 of 2012, titled Amir Chand vs. State of Himachal Pradesh & Ors., in Para 81, the following principles were laid down:- "81. In Addition to the directions issued in the individual writ petitions, we are of the considered view that certain general directions are required to be issued. We have collated the various directions issued by us in different cases which have not been complied till today. After taking into consideration the entire scenario, we issue the following directions: 1. x x x x x x x x x x x x x x x x x x x x x x x x x x 2. x x x x x x x x x x x x x x x x x x x x x x x x x x 3. x x x x x x x x x x x x x x x x x x x x x x x x x x 4. x x x x x x x x x x x x x x x x x x x x x x x x x x 5. We are, however, the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. We are, however, the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officer to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted. 6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments. 7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister-in-Charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers." 5. The judgment in Sanjay Kumars case (supra), has even been upheld by the Hon''ble Apex Court. 6. True it is that as per the facts having emerged on record, the petitioner-original applicant remained posted throughout at Shimla, except for his posting in Solan in two spells, i.e. 15.07.1999 to 10.06.2001 and thereafter, from 01.11.2003 to 05.11.2006. Being so, the respondent-department is well within its right to consider his transfer from Shimla to any other place within the State because the cadre of Senior Assistants in the department is a State cadre. However, his transfer should have not been originated on the basis of D.O. Note and at the behest of political executive. Such issue should have been taken by the competent authority, i.e. the 2nd respondent independent of any outside influence, including un-influenced by the D.O. Note of the Chief Minister. However, his transfer should have not been originated on the basis of D.O. Note and at the behest of political executive. Such issue should have been taken by the competent authority, i.e. the 2nd respondent independent of any outside influence, including un-influenced by the D.O. Note of the Chief Minister. The power so exercised by the 2nd respondent to transfer the petitioner-original applicant from Shimla to Kullu is, therefore, not in the public interest and rather colourable exercise of powers. Being so, the impugned order in all fairness and in the ends of justice, should have been quashed and set aside. 7. In similar circumstances, another Division Bench of this Court, has quashed the transfer of the petitioner in a case titled Chander Shekhar vs. State of Himachal Pradesh and Ors., 2013(3), Shimla Law Cases 1227, leaving it open to the respondents-department to transfer the petitioner to any other place, however, in the public interest and in the exigency of service and not on the basis of D.O. Note. The relevant portion of this judgment, also reads as follows:- "7. From the perusal of the written instructions placed on record by the learned Additional Advocate General, we are satisfied that the distance between Bilaspur and Ghumarwin is now only 13 Kms. And in no case more than 25 Kms. On this score also, he cannot be treated to have been transferred from Bilaspur to Ghumarwin vide Annexure P-2 and rather a case of local adjustment. Therefore, it does lie ill in his mouth to say that he has been transferred after twenty days in violation of the Transfer Policy. The ailment of his mother, if any, and he being the only son to look after her, also does not weigh with us for the reason that the petitioner being a public servant, can be transferred and posted at any place in the State and cannot be heard to have any complaint of this nature against his transfer. However, our concern in the case in hand is that the transfer order of the petitioner is not a case of exigency of service or in the larger public interest and rather politically motivated for all the reasons hereinabove. Therefore, only on this short ground also, in our opinion, the impugned order dated 30.03.2013 Annexure P-6 is vitiated and as such deserves to be quashed and set aside. Therefore, only on this short ground also, in our opinion, the impugned order dated 30.03.2013 Annexure P-6 is vitiated and as such deserves to be quashed and set aside. There should, however, be no misunderstanding that the petitioner cannot be transferred. The respondents may transfer the petitioner to any other place, however, in the public interest or in the exigency of service." 8. If coming to the case titled Ashok Kumar Attri vs. Himachal Pradesh Power Corporation Limited, 2013(3) Shimla Law Cases 1594, the Principal Bench of this Court, has again held in Paras 4, 5, 6 & 7, as under:- "4. Having considered the rival submissions, we have no hesitation in taking the view that the Appropriate Authority of respondent No. 1 has clearly abdicated its authority and was swayed away by the D.O. letter received from the office of the Chief Minister pursuant to which, respondent No. 3 came to be posted at Sarabai, District Kullu and transferring the petitioner to Hatkoti (Rohru), District Shimla. The Action of the Appropriate Authority of respondent No. 1 cannot be countenanced in view of the exposition of this Court in the case of Sanjay Kumar (supra). Moreover, respondent No. 1 has completely glossed over the mandate specified in the extent transfer policy that if the employee is to retire in less than two years, he should be posted at a convenient place of his choice. 5. During the course of hearing, Counsel for respondent No. 1 pointed out that the petitioner has succeeded in getting D.O. letter from the office of the Chief Minister to favour him with his posting at Sarabai, District Kullu and to reverse the transfer order. 6. Taking overall view of the matter, therefore, we not only quash and set aside the office order, dated 31st August, 2013, but also direct respondent No. 1 to reconsider the issue of posting of petitioner and respondent No. 3 afresh, taking into account all aspect of the matter and that decision should be taken in accordance with the extant transfer policy and not under dictation or influence of the D.O. letters received from the office of the Chief Minister, which has no value and if that is taken into account, it would be nothing short of extraneous consideration by the Appropriate Authority of respondent No. 1. Respondent No. 1 shall decide the matter afresh within 10 days from today and issue appropriate orders posting petitioner and respondent No. 3 to suitable places, as may be advised. All questions in that behalf are left open. 7. We make it clear that in view of the order, respondent No. 1 will be free to take independent decision and comply with the direction contained in this order without requiring anything to do further, which would be only a paper formality to be complied by respondent No. 1." 9. In the light of the legal principles discussed hereinabove, we are in agreement with the submissions made by Ms. Ranjana Parmar, learned Senior Advocate, that instead of relegating the petitioner-original applicant to the respondents-department for redressal of his grievances, the points in issue should have been considered by learned Tribunal itself and the original application is decided on merits for the reason that no useful purpose is likely to be served by way of making a representation by the petitioner-original applicant to respondent No. 1, in view of the allegations levelled by him against the respondents in the original application. Therefore, the impugned order is not legally and factually sustainable and the same is likely to be quashed and set-aside. 10. For all the reasons hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, the order under challenge in this writ petition (Annexure P-2), is quashed and set aside. The order dated 21st June, 2017, Annexure A-4, to the writ petition whereby the petitioner-original applicant has been transferred from the office of District Statistical Office Shimla to that of District Statistical Office Kullu, shall also stands quashed. 11. Before parting with this judgment, we make it clear that the competent authority, if so advised, may consider the transfer of the petitioner from Shimla to any other place, however, strictly in the light of the law discussed hereinabove and our observations in this judgment. The writ petition is accordingly disposed of, so also the pending application(s), if any. The record requisitioned be returned through special messenger, forthwith.