Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 52 (HP)

Joginder Rao v. State of Himachal Pradesh

2020-01-03

ANOOP CHITKARA, DHARAM CHAND CHAUDHARY

body2020
JUDGMENT : Anoop Chitkara, J. Challenging the notification dated Sep 13, 2019 (Annexure P-3), passed by the Principal Secretary (Education) to the Government of Himachal Pradesh, the 1st respondent herein, transferring the petitioner to the post of Principal at Government Senior Secondary School Bhalar Bhalona, District Sirmour, Himachal Pradesh, within three years from his previous transfer made in January 2017, the petitioner has come up before this Court, under Article 226 of the Constitution of India, seeking quashing of his transfer, and in the alternative to direct the 1st respondent to transfer him to Government Senior Secondary School, Jaddu Kuljiar, District Bilaspur, H.P. 2. The State has filed a response to this petition. It clarifies that the reason for the transfer was to maintain harmonious working conditions in school. It further explains that one female teacher posted in the same school had filed a complaint (Annexure R-1 colly.), dated Aug 28, 2019, against the petitioner before the State Woman Commission and also the Superintendent of Police, Bilaspur District at Bilaspur. The inquiry report with respect to inquiry conducted by the Additional Superintendent of Police Bilaspur, is Annexure P-6 to the supplementary affidavit filed by the petitioner. The recommendation of the State Commission for Women to transfer the petitioner out of the District till completion of the inquiry against him is Annexure R-1 to reply filed by the respondent-State. 3. We have heard Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioner, and Mr. Ashok Sharma learned Advocate General for the State. We have also waded through the entire record, including the file leading to the transfer of the petitioner. 4. In January 2017, the petitioner was transferred and posted as Principal in Government Senior Secondary School (Boys) Ghumarwin, District Bilaspur, H.P. The petitioner contends that during his posting at Ghumarwin the strength of the students in the School increased from 398 to 510. He further alleges that one female, posted as a Language Teacher in the school has political links. On the issue of assigning duties to teach students and also on account of allocation of periods, the said Language Teacher took it to her heart, and threw venom on him, by filing a false and concocted complaint leveling allegation of her harassment at the hands of the petitioner. 5. On the issue of assigning duties to teach students and also on account of allocation of periods, the said Language Teacher took it to her heart, and threw venom on him, by filing a false and concocted complaint leveling allegation of her harassment at the hands of the petitioner. 5. The respondent/State, in its reply though confirms that it issued the orders for transfer, based upon a request received from the HP State Commission for Women, the record, however, depicts altogether a different picture as the Office of the Hon’ble Chief Minister has issued D.O. Note No. Secy/CME0315/ 2017-DEP-C-163090, dated Sep 3, 2019 and accorded approval thereby to transfer the petitioner from Government Senior Secondary School (Boys) Ghumarwin, District Bilaspur to out of station in relaxation of ban on transfers. 6. Consequently, the petitioner has been transferred to Government Sr. Secondary School Bhalar Bhalona in District Sirmaur vide impugned order Annexure P-3. When the recommendation (Annexure R-1 colly.) of the State Commission for Women is dated Sep 9, 2019, it is difficult to believe that the petitioner was transferred out of the District pursuant to Annexure R-1 and rather on the basis of D.O. note dated Sep 3, 2019 (supra) issued prior in time. Even the D.O. note has been dealt with on Sep 6, 2019 vide notes 104 to 106 and ultimately it is on the basis of the D.O. note the petitioner was transferred from Government Senior Secondary School (Boys), Ghumarwin to Government Senior Secondary School Bhalar Bhalona, District Sirmour, as is apparent from note No. 107 in the record. The State further explained that the Director of Higher Education had recommended the transfer of the petitioner to maintain a congenial atmosphere in the school. 7. Otherwise also, the H.P. State Commission for Women is an outsider to the affairs of Administration, and has no business to request the transfers or other measures, because this amounts to an interference in the working of the Executive. It is better for the H.P. State Commission for Women to confine to its own job. 8. Mr. Sanjeev Bhushan, learned Senior Counsel, for the petitioner contends that the First respondent had transferred the petitioner, on the basis of UO/DO note. 9. The record about the transfer reveals that the 1st respondent had transferred the petitioner based on DO/UO Note No. Secy/CM-E0315/2017-DEP-C-163090, dated Sep 3, 2019. 10. 8. Mr. Sanjeev Bhushan, learned Senior Counsel, for the petitioner contends that the First respondent had transferred the petitioner, on the basis of UO/DO note. 9. The record about the transfer reveals that the 1st respondent had transferred the petitioner based on DO/UO Note No. Secy/CM-E0315/2017-DEP-C-163090, dated Sep 3, 2019. 10. The first respondent did not dispute the position, and preferably very categorically contended in Para 1 of its reply that the reason for transfer was to maintain congenial atmosphere in the Educational Institution. This Court is in agreement with the stand so taken by the respondent-State. Even this Court while finding that the allegations in the complaint are not much serious and rather confined only to the internal matter of the school has further observed that one i.e. out of the petitioner and the lady teacher is required to be transferred to maintain congenial atmosphere in the school vide order dated Oct. 3, 2019. It is in this backdrop the respondent- Department was directed to explore the possibility of the adjustment of the petitioner in Government Senior Secondary School Jaddu Kuljiar, District Bilaspur from where his substitute was transferred to Government Senior Secondary School (Boys) Ghumarwin, Distt. Bilaspur in the event of the lady teacher was to be retained in the same school. This order reads as follows: “We have perused the record produced by the respondent-State, which reveal that the petitioner has been transferred on the complaint of a female teacher posted in that very school. The allegations in the complaint are not much serious and it seems to be internal matter of the school. We are in agreement with the submissions made by learned Advocate General that one i.e. out of the petitioner and the lady teacher is required to be transferred to maintain congenial atmosphere in the school. In case the lady teacher is to be retained, the possibility of the adjustment of the petitioner in Government Senior Secondary School, Jaddu Kuljiar (Bilaspur) from where his substitute has been transferred should have been explored. Even this is also the relief sought in alternative by the petitioner. Let the matter be examined in the light of this order and the instructions placed on the record on the next date. List on 18.10.2019.” 11. Even this is also the relief sought in alternative by the petitioner. Let the matter be examined in the light of this order and the instructions placed on the record on the next date. List on 18.10.2019.” 11. Otherwise also, on the basis of the complaint, a Government servant cannot be transferred without holding inquiry as per the Rules and in order to find out as to whether the allegations leveled against him are correct or false and fabricated. A Division Bench of this Court has held so in CWP No. 8590 of 2014, titled as Raj Kumar vs. State of Himachal Pradesh & others, decided on 31.12.2014, [2014 Law Suit (HP) 1331]. This judgment reads as follows: “23. We are afraid that this submission cannot be countenanced because it only leads to one inference that order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on irrelevant ground i.e. on the allegations made against the petitioner in the complaints. It is one thing to say that employer is entitled to pass an order of transfer in administrative exigency but it is another thing to say that order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set-aside being wholly illegal. (Ref: Somesh Tiwari vs. Union of India & others, (2009) 2 SCC 592 ). 24. There is yet another reason why the aforesaid submission of the respondents cannot be accepted. In terms of the judgment passed by this Court in Amir Chand's case (supra) [2013 (2) Him.L.R.(DB) 648], the complaints as alleged to have been received against the petitioner by the respondents from various representatives were required to be sent to the head of the administrative department, who in turn was required to verify the same and if after associating the petitioner, the complaints were found to be true then alone could the petitioner have been ordered to be transferred. Admittedly, this exercise has not been undertaken by the administrative department i.e. the respondents herein. Therefore also the order of transfer cannot be sustained having been passed capriciously and arbitrarily. 25. Admittedly, this exercise has not been undertaken by the administrative department i.e. the respondents herein. Therefore also the order of transfer cannot be sustained having been passed capriciously and arbitrarily. 25. If the petitioner has been indulging in any conduct not befitting his office and contrary to public interest, the respondents authority should have conducted an inquiry and imposed appropriate penalty as would be permissible under the rules. But then the transfer at the behest of the members of the public without any inquiry is not only against the interest of the concerned government servant but is also against public interest. It tends to destroy the morale of government servant and the same is otherwise illegal. Such a transfer cannot get the seal of approval from this Court.” 12. Although Mr. Sanjeev Bhushan, learned Senior Advocate has canvassed that the transfer of the petitioner having been made on the basis of D.O. note is not legally sustainable and as such, according to him the impugned order Annexure P-3 should be quashed and set aside and as this Court has held in Sanjay Kumar vs. State of Himachal Pradesh and others, 2013(3) Shimla Law Cases 1373 and also Amir Chand vs. State of Himachal Pradesh 2013(2) Him. L.R. 648 and in its recent judgment rendered in CWP No.2490 of 2019, titled Dalip Singh versus State of H.P. & Others that the Chief Minister and Ministers/elected representatives cannot order the transfer of an employee from one place to other and may recommend the transfer of an employee, however, the transfer order has ultimately to be issued by the Administrative Head on application of mind and uninfluenced by the recommendations so made by the elected representative. We find the present a fit case where it may not be in the interest of the teaching atmosphere in the school to again allow the petitioner to continue in the same school as we have already observed in our order dated Oct. 3, 2019, referred to hereinabove. Still we feel that his transfer to Government Senior Secondary School Bhalar Bhalona, District Sirmour is punitive in nature which without holding inquiry against him could have not been ordered. 3, 2019, referred to hereinabove. Still we feel that his transfer to Government Senior Secondary School Bhalar Bhalona, District Sirmour is punitive in nature which without holding inquiry against him could have not been ordered. Such an action is even harsh and humiliating also to the petitioner who, to our considered opinion has been transferred out of District Bilaspur on the basis of the complaint made by the lady teacher, that too when in the fact finding inquiry conducted by the Addl. Superintendent of Police, District Sirmour at Nahan, the allegations leveled by her were not established. 13. Anyhow, the alternative prayer of the petitioner is that he may be transferred to Government Senior Secondary School Jaddu Kuljiar, District Bilaspur from where his substitute has been transferred to Government Senior Secondary School (Boys) Ghumarwin. 14. Be that as it may, the petitioner himself offers a solution to the problem, in its alternative prayer. 15. This Court has already directed the respondents vide its order dated Oct 3, 2019, to explore the possibility of adjustment of the petitioner in this school in the event of the lady teacher was to be retained there. Vide order dated Nov. 28, 2019, this Court taking into consideration that the post of Principal was lying vacant in Government Senior Secondary School, Jaddu Kuljiar, District Bilaspur as on Oct. 3, 2019, has issued the direction not to fill up the same till judgment is pronounced. This order reads as follows: “Arguments heard. Judgment reserved. The post of Principal, which as per the order dated 3.10.2019, is lying vacant in Government Senior Secondary School, Jaddu Kuljiar, District Bilaspur and as a direction to the respondent to adjust the petitioner against the said vacancy is one of the relief’s sought in this writ petition, the same shall not be filled up till the judgment is pronounced.” 16. It is an unfortunate case where a female teacher, prima facie, has exploited the laws made to protect the vulnerable females. Be that as it may, because the inquiry is still pending, as such, this Court refrains itself to express any opinion qua that. Needless to say, that it is the petitioner who is ready to sacrifice by clearly mentioning in his second prayer that he be posted at some other school in case this Court does not quash his transfer order. 17. Needless to say, that it is the petitioner who is ready to sacrifice by clearly mentioning in his second prayer that he be posted at some other school in case this Court does not quash his transfer order. 17. Resultantly, this petition is allowed and disposed of in terms of the second prayer clause. Consequently, the impugned order Annexure P-3 qua the transfer of the petitioner to Government Senior Secondary School Bhalar Bhalona, District Sirmour is quashed and he is ordered to be adjusted in Government Senior Secondary School Jaddu Kuljiar, District Bilaspur. This Court further directs the first respondent to consider the transfer and posting of the petitioner against the post of the Principal at Government Senior Secondary School, Jaddu Kuljiar, District Bilaspur, HP, at the earliest, but not later than Jan 10, 2020. 18. The Writ Petition is allowed in the terms mentioned above. Applications, if pending stand closed.