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2020 DIGILAW 715 (HP)

Smt Savita v. State of Himachal Pradesh

2020-10-12

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - As common facts are involved in these petitions, they are being disposed of by a common judgment. 2. Petitioners before the Court are serving TGTs (Non-Medical) with the respondent-Department. Vide office order dated 20th July, 2020, petitioner, Savita Kumari, who was serving as TGT (Non-Medical) at GHS Lanjiana, District Hamirpur, Himachal Pradesh was ordered to be transferred to GHS Jiwani, District Hamirpur, Himachal Pradesh and petitioner, Anil Jamwal, was ordered to be transferred vice-versa from GHS Jiwani to GHS Lanjiana. A perusal of office order dated 20th July, 2020, demonstrates that these transfers were effected by condoning short stay, without TTA/JT, meaning thereby that the transfers were affected by the competent authority on request of the incumbents therein. 3. Common grievance of the petitioners is that subsequently vide impugned order dated 21st July, 2020, office order dated 20th July, 2020, vide which the transfers of petitioners vice-versa to each other, stands cancelled in the following terms:- "Transfer orders of Sh. Anil Jamwal, TGT (NM) from GHS, Jiwani, Distt. Hamirpur to GHS, Lanjiana, Distt. Hamirpur issued vide this Directorate Office order of even No. dated 20.07.2020, appearing at Sr. No.22-21 are hereby cancelled, if the incumbents have not joined, with immediate effect." 4. Learned counsel for the petitioners have argued that the impugned office order dated 21st July, 2020, vide which the transfers of the petitioners vice-versa to each other, has been cancelled, is nothing, but an act of colourable exercise of powers, because the impugned order is silent as to why the transfers of petitioners were being recalled. This has been done neither on account of administrative exigency nor in public interest, but for extraneous reasons. Accordingly, they have prayed for quashing of the impugned order dated 21st July, 2020, with further direction to the respondents to give effect to the transfer order dated 20th July, 2020, qua the petitioners. Learned counsel for the petitioners have also relied upon the judgment of the Hon'ble Division Bench of this Court in CWP No.1811 of 2020, titled as Surinder Singh Versus State of Himachal Pradesh & others, decided on June 29, 2020. 5. Learned counsel for the petitioners have also relied upon the judgment of the Hon'ble Division Bench of this Court in CWP No.1811 of 2020, titled as Surinder Singh Versus State of Himachal Pradesh & others, decided on June 29, 2020. 5. On the other hand, learned Additional Advocate General has supported the impugned office order dated 21st July, 2020, by arguing that the respondent-Department is well within its right to cancel the earlier transfer orders of the petitioners and the petitioners have no right to be posted at a particular station. Accordingly, he has prayed that as the transfer is in exigency of service, therefore, as the petitions are without any merit, same be dismissed. 6. I have heard learned counsel for the parties and have gone through the pleadings as well as documents appended therewith. 7. In my considered view, the impugned office order dated 21st July, 2020, vide which the transfers of petitioners have been cancelled, are not sustainable in the eyes of law. This, I say so for the reason that though it is the prerogative of the employer as to where an incumbent has to be posted, yet, this prerogative cannot be used arbitrarily by the employer. In the present case, office order dated 20th July, 2020, demonstrates that it was on the request of both the petitioners that they were transferred vice-versa to each other, meaning thereby that once the request was so made by the petitioners for their mutual transfers, the competent authority after due application of mind acceded to the same and vide office order dated 20th July, 2020, posted them by way of transfers vice-versa to each other. In these circumstances, it defies logic as to what prompted the same authority to rescind this order just after one day by passing the earlier order. The impugned order is completely nonspeaking as reasons which led to cancellation of the transfers of petitioners are not spelt out in the same. This demonstrates that issuance of office order dated 21st July, 2020, has nothing, but an act of colourable exercise of powers. 8. The impugned order is completely nonspeaking as reasons which led to cancellation of the transfers of petitioners are not spelt out in the same. This demonstrates that issuance of office order dated 21st July, 2020, has nothing, but an act of colourable exercise of powers. 8. The Hon'ble Division Bench of this Court in CWP No.1811 of 2020, titled as Surinder Singh Versus State of Himachal Pradesh & others (supra), vide para-4 of the said judgment, has been pleased to hold as under:- "This transfer was cancelled vide order dated 15.6.2020, Annexure P-4, which is silent about the reasons for which it was cancelled. Once the petitioner has been transferred vide order dated 12.6.2020, after that in case the respondents wanted to cancel it, then they should have explained the reasons before passing any rescinding order. The previous order was passed by the prior approval of the competent authority whereas it is not the case with Annexure P-4. This is another reason to interfere with the impugned order." 9. In view of the observations made hereinabove, both these petitions are allowed and the impugned office order dated 21st July, 2020, is quashed and set aside and the respondents are directed to give effect to transfer order dated 20th July, 2020, qua the petitioners, vide which they have been posted at GHS Jiwani and GHS Lanjiana, District Hamirpur, H.P., respectively. Pending miscellaneous application(s), if any, also stand disposed of.