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2019 DIGILAW 1249 (HP)

Surinder Kumar v. State Of H. P.

2019-08-29

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Dharam Chand Chaudhary, J. As reported by the Registry, notice to respondent No. 3 has not been issued for want of steps. 2. In the given facts and circumstances when the transfer of the petitioner vide order under challenge has been ordered on the basis of D.O. note which as per the law laid down by this court is not legally permissible, the writ petition can be disposed of effectively and judiciously in the absence of the said respondent. 3. The petitioner, a Post Graduate Teacher/Lecturer (Chemistry), presently posted as such at Government Senior Secondary School, Arloo, District Una has approached this Court by filing the present writ petition for quashing the order dated 11.07.2019, Annexure P-1, whereby he has been transferred from the said school to Government Senior Secondary School, Jowar, District Una (H.P.) vice Sunil Kumar, respondent No.3 herein. 4. On 20.08.2019, following order came to be passed in this writ petition:- "Notice. Mr. Vikas Rathore, learned Additional Advocate General appears and accepts service of notice on behalf of respondents No. 1 and 2. Notice through speed post to respondent No.3 on filing process fee during the course of the day for 28.08.2019 through Principal, Government Senior Secondary School, Jowar, District Una, H.P. The appearing respondents to file short affidavit in reply and also produce the record leading to issuance of impugned order of transfer, Annexure P-1. In the meanwhile, the petitioner be not relieved from his present place of posting, if still working there." 5. Yesterday i.e. 28.8.2019, the returnable date, affidavit in reply as directed though was not filed, however, the record leading to the transfer of petitioner produced. The record being not complete as one of its page found missing, therefore, while passing the order to retain the record by learned Deputy Advocate General, respondent No.2 was directed to remain present in person to assist the Court. The order passed yesterday on 28.08.2019 reads as follows:- "Affidavit in reply has not been filed. Learned Deputy Advocate General has produced the record which, prima- facie, reveal that the transfer of the petitioner has been ordered on the D.O. note of Rural Development and Panchayati Raj Minister. The order passed yesterday on 28.08.2019 reads as follows:- "Affidavit in reply has not been filed. Learned Deputy Advocate General has produced the record which, prima- facie, reveal that the transfer of the petitioner has been ordered on the D.O. note of Rural Development and Panchayati Raj Minister. In the name of the record only a photostat page of the list of the teachers sought to be transferred prepared by the office of Minister, Rural Development is available in the file in which the name of petitioner figures at serial No.8. The next page incontinuation is missing may be to withheld something from this Court. Let learned Deputy Advocate General to retain this record. List tomorrow on 29.08.2019. We direct respondent No.2 to remain present in person to assist the Court." 6. Consequently, the 2nd respondent, Director, Higher Education, Himachal Pradesh is present in person. He has produced the record, which is now complete. It is seen that the Rural Development and Panchayati Raj Minister to the Government of Himachal Pradesh submitted two D.O notes bearing U.O. No.PS/RDM(Tfr)2019-10249 dated 24.06.2019 and U.O No.PS/RDM/(Tfr)/2019-10384 dated 25.06.2019 to the Education Minister, Himachal Pradesh for transfer of Teachers named therein from one place to other. The same were forwarded to the Director, Higher Education, the 2nd respondent after obtaining the approval of Education Minister for needful. The office of respondent No.2 has accordingly ordered the transfer of the petitioner one of the teachers sought to be transferred vide U.O. Note referred to hereinabove from Government Senior Secondary School, Arloo, District Una to Government Senior Secondary School, Jowar, District Una without TTA/joining time vice respondent No.3, who was transferred with TTA/joining time vide order under challenge in this writ petition. The order of transfer of petitioner without TTA/joining time gives an impression that it is he who has requested for his tansfer from Government Senior Secondray School, Arloo, whereas, it is not so, as according to learned counsel, the petitioner never made any such request. 7. Whether the order of transfer of the petitioner in view of the law laid down by this Court in Sanjay Kumar vs. Sate of Himachal Pradesh and others, (2013) 3 ShimLC 1373 and Amir Chand vs. State of Himachal Pradesh, 2013 (2) HimLR 648(DB) is legally sustainable or not is a question which has engaged our attention in this case. Whether the order of transfer of the petitioner in view of the law laid down by this Court in Sanjay Kumar vs. Sate of Himachal Pradesh and others, (2013) 3 ShimLC 1373 and Amir Chand vs. State of Himachal Pradesh, 2013 (2) HimLR 648(DB) is legally sustainable or not is a question which has engaged our attention in this case. The answer thereto in the given facts and circumstances, however, would be in negative for the reason that as per the legal principles settled in the judgments supra, an elected representative has no right to claim that a particular employee is transferred to a particular station. Such choice has been left to be exercised by the Administrative Head(s) i.e. the executive and not by the legislators. Whether an employee has to be transferred and posted out, as per the ratio of the law laid down in these judgments has to be decided by the administration. This Court has also expected from the Administrative Head(s) to apply their mind and take a decision to issue order of transfer of the employees independently and uninfluenced by the recommendations, if any, made by the political executive i.e. merely on asking by MLA or Minister. Not only this but in the event of any recommendation is received from the political executive, the Administrative Department can always make a back reference stating therein as to why the recommendations so made cannot be accepted. In Amir Chand's judgment cited supra, it has further been held that whenever transfer of an employee is not ordered by the departments but on the recommendations of Minister or MLA, in that event also, before the order of transfer is issued, views of Administrative Department should be obtained. Only thereafter the transfer can be ordered, if approved by the Administrative Head(s). The law so laid down is reproduced as under:- [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. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are only two categories, i.e. tribal/hard areas and other areas. After taking into consideration the entire scenario, we issue the following directions: 1. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are only two categories, i.e. tribal/hard areas and other areas. We have increasingly found that people who are sent to the hard/tribal areas find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C, D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A and the lowest category will be of the most difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in Category A. 2. After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every employee serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted from category A to any of the other three categories, but should not be again transferred to category A station. An effort should be made to ensure that every employee serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted from category A to any of the other three categories, but should not be again transferred to category A station. If after category A he is transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope for adjusting the favourites and all employees will be treated equally and there will be no heart burning between the employees. 3. We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but whenever such exception is made, a reasoned order must be passed why policy is not being followed. 4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred. 5. We are, however, of 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 officers to shows 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. 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." 8. In the case in hand, as noticed supra, no doubt, on the recommendations of the Rural Development and Panchayati Raj Minister, the Education Minister, Himachal Pradesh has approved the transfers of various Post Graduate Teachers including the petitioner and the matter was forwarded to the 2nd respondent. Nothing is there in the record produced before us that in the office of 2nd respondent, the matter was examined to ascertain the justification of the transfer of the petitioner approved by the political Executive. Again nothing is there on record to show that the office of respondent No. 2 has examined the matter and the said respondent recorded its satisfaction qua the desirability of the transfers including that of the petitioner approved by the political Executive are in the interest of administration or larger public interest. Therefore, obviously, the respondent No. 2 has issued the order of transfer merely o the D.O. note of the Rural Development and Panchayati Raj Minister which is not legally permissible as the law laid down by this Court deprecate such practice of transfer of an employee. 9. True it is that the petitioner was transferred and posted at the present place of his posting on 24.08.2017. As per note of the Superintendent (Transfer Cell) of the office of 2nd respondent available in record, previously, he remained posted at Government Senior Secondary School Loharli (HMR) w.e.f. 19.07.2013 to 14.07.2015 and in Government Senior Secondary School, Jowar (Una) w.e.f. 15.07.2015 to 23.08.2017. As per note of the Superintendent (Transfer Cell) of the office of 2nd respondent available in record, previously, he remained posted at Government Senior Secondary School Loharli (HMR) w.e.f. 19.07.2013 to 14.07.2015 and in Government Senior Secondary School, Jowar (Una) w.e.f. 15.07.2015 to 23.08.2017. Now, he has again been transferred to Government Senior Secondary School, Jowar (Una) vide order under challenge. What is the distance between Government Senior Secondary School, Jowar and Government Senior Secondary School, Arloo (Una), nothing has come on record. The Administration Heard i.e. respondent No. 2 may transfer the petitioner, however, strictly in accordance with law and in the interest of Administration and on the basis of D.O. note and at the behest of political executive. 10. The competent authority i.e. the 2nd respondent on receipt of approval for transfer of the petitioner should have examined the same independently and uninfluenced by the recommendation, if any, of the elected representative and issued the order of transfer thereafter. The issuance of order of transfer of the petitioner by the 2nd respondent, therefore, is not in the interest of administration or public interest and rather colourable exercise of power. Being so, the impugned order, in all fairness and in the ends of justice, is not legally sustainable. The same, as such, deserves to be quashed and set aside. A Co-ordinate Bench of this Court in Ashok Kumar Attri vs. Himachal Pradesh Power Corporation Limited, (2013) 3 ShimLC 1594 , in similar set of facts and circumstances has held as under:- "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 aspects 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 form 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." 11. In view of the legal principles settled in the judgment supra, we are in agreement with the submissions made by Ms. Sheetal Vyas, learned counsel representing the petitioner that order of transfer, Annexure P-1 is not legally sustainable. 12. In view of the legal principles settled in the judgment supra, we are in agreement with the submissions made by Ms. Sheetal Vyas, learned counsel representing the petitioner that order of transfer, Annexure P-1 is not legally sustainable. 12. 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-1 is quashed and set aside. We, however, leave it open to the respondent-State to consider the transfer of the petitioner from the present place of posting to any other station strictly in the light of the law discussed hereinabove and our observations in this judgment. Pending applications, if any, shall also stand disposed of.