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2019 DIGILAW 1445 (HP)

Kanta Devi v. State of Himachal Pradesh

2019-09-25

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Challenge in the instant writ petition is to transfer order dated 06.09.2019 (Annexure P-1), whereby petitioner, PGT (English), has been transferred from Government Sr. Secondary School, Kutiara, District Kangra, to Government Sr. Secondary School, Baneta, District Chamba. The order dated 07.09.2019 (Annexure P-2), whereby she has been relieved, is also under challenge in this writ petition. 2. Facts: 2(i). It is averred that petitioner was appointed as PGT (English) on contract basis and was posted in Government Sr. Secondary School, Sari, Tehsil Chopal, District Shimla, on 06.06.2013. 2(ii). On 24.02.2014, petitioner was transferred to Government Sr. Secondary School, Kutiara, Tehsil Jawalamukhi, District Kangra, where she was regularized on 18.05.2017. She was transferred vide impugned order dated 06.09.2019 (Annexure P-1) to Government Sr. Secondary School, Baneta, District Chamba. 2(iii). Petitioner has challenged her transfer on the grounds that:- the same has been issued on the basis of D.O. Note to accommodate respondent No.4, who has served in and around Kathog for the last 20 years; petitioner's husband is serving as Deputy Commandant in BSF and is posted at Bagha Boarder at Amritsar (Punjab); petitioner is mother of two minor daughters aged 7 years and 18 months, respectively. 3. Record: 3(i). Since the impugned transfer order was alleged to have been issued on the basis of D.O. Note, therefore, we had called for and perused the record pertaining to the transfer of petitioner. 3(ii). Record reveals that initially respondent No.4 was transferred on 27.08.2019 (not part of writ record) from Government Sr. Secondary School, Kathog, District Kangra, to Government Sr. Secondary School, Baneta, District Chamba. 3(iii). The office of Hon'ble the Chief Minister approved the proposal of adjustment of respondent No.4 at Government Sr. Secondary School, Kutiara (Jawalamukhi) vice petitioner and also approved the consequent transfer of the petitioner from Government Sr. Secondary School, Kutiara (Jawalamukhi) to Government Sr. Secondary School, Baneta, District Chamba. This approval was straightway acted upon by the Department merely on the basis of the stay of the petitioner. This proposal was not examined by the Competent Authority, i.e. the Director of Higher Education/respondent No.2. 3(iv). Secondary School, Kutiara (Jawalamukhi) to Government Sr. Secondary School, Baneta, District Chamba. This approval was straightway acted upon by the Department merely on the basis of the stay of the petitioner. This proposal was not examined by the Competent Authority, i.e. the Director of Higher Education/respondent No.2. 3(iv). In CWP No.1919 of 2019, titled Surinder Kumar versus State of H.P. & others, this Court relying upon Sanjay Kumar versus State of Himachal Pradesh and others, (2013) 3 ShimLC 1373 ; Amir Chand versus State of Himachal Pradesh,2013 2 HimLR 648; and Ashok Kumar Attri versus Himachal Pradesh Power Corporation Limited, (2013) 3 ShimLC 1594 , held that it is prerogative of the Administrative Head to transfer the employees, but, in accordance with law, in the interest of justice and not merely on the basis of U.O./D.O./request Notes, issued at the behest of elected representatives. The Administrative Head/Competent Authority, having the power to transfer the employee, has to apply its own uninfluenced mind to the request/ recommendation, if any, made by the elected representatives and has to take an impartial decision in respect of the transfer of any employee, in accordance with Transfer Policy. 4. Applying the above law to the facts of instant case, it cannot be said that the Competent Authority/Head of Department has applied its independent uninfluenced mind in issuing order dated 06.09.2019 (Annexure P-1). The transfer order has been issued on the dotted lines of the elected representatives. Since in the instant case, the transfer order has been issued merely towards implementation of the proposal of the elected representative, without applying uninfluenced and independent mind by the Competent Authority, therefore, the writ petition is allowed. Accordingly, impugned transfer order dated 06.09.2019 (Annexure P-1) and relieving order dated 07.09.2019 (Annexure P-2, are quashed and set aside. We, however, leave it open to the Competent Authority to consider the matter of transfer of petitioner afresh strictly in accordance with law and as per Transfer Policy. With the aforesaid observations, the writ petition stands disposed of, so also the pending miscellaneous applications, if any.