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2020 DIGILAW 721 (HP)

Sushil Kumar v. State of Himachal Pradesh

2020-10-12

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The impugned transfer order, borne in Annexure P-1, becomes challenged by the writ petitioner, and, therethrough, the writ petitioner becomes transferred from Tehsil Office, Indora, to, the office of Divisional Commissioner, Kangra at Dharamshala, District Kangra, H.P., and, also therethrough, corespondent No.3, one Onkar Singh, becomes posted in substitution, of, the writ petitioner, hence at, Tehsil Office, Indora, District Kangra, Himachal Pradesh The writ petitioner casts a challenge, upon, the impugned transfer order, on, the ground, (a) vis-a-vis, it per se, being incapricious, and, arbitrary, inasmuch, as, evidently his transfer being done without, the, prior approval of the competent authority, (b) and, more so, no joining time, and, TTA becoming granted, to, the writ petitioner, (c) and, despite the petitioner not completing, his normal period of three years at Tehsil Office, Indora, and, yet his being transferred much prior thereto, to, the Office of Divisional Com missioner, Kangra at Dharamshala, District Kangra, H.P., (d) the petitioner despite being left with only eight months of service, hence, the respondents, breaching the relevant echoing, as, borne in the Transfer Policy, inasmuch, as, it carrying a diktat against any public servant, who has the afore outstanding period, in, service, his being not amenable, for, becoming transferred. 2. Respondent No.3, one Onkar Singh, alike the petitioner has disclosed, in his reply-affidavit, instituted by him to the writ petition, qua his retiring in the month of January, 2021, and, also it is apparent on a reading of the afore reply, meted to the writ petition by co-respondent No.3, vis-a-vis, his joining at Tehsil Office, Indora, and, whereas, the petitioner suppressing, the afore material fact, from this Court, (i) and, his yet obtaining a stay order from this Court, against the implementation, of, the impugned transfer order, borne in Annexure P-1, (ii) thereupon, equities becoming loaded against him, and, whereupon, his writ petition becoming amenable, for, dismissal. 3. Even though, the factum of the writ petitioner, suppressing the afore factum of co-respondent No.3, joining at the transferred station, in pursuance to the making of Annexure p-1, does prima facie stand, against the petitioner, and, also estops him to contest, the, validity of making, of, the impugned transfer order, borne in Annexure P-1. 3. Even though, the factum of the writ petitioner, suppressing the afore factum of co-respondent No.3, joining at the transferred station, in pursuance to the making of Annexure p-1, does prima facie stand, against the petitioner, and, also estops him to contest, the, validity of making, of, the impugned transfer order, borne in Annexure P-1. However, if from a perusal of the entire record, it appears that the impugned transfer order, is, yet ingrained with a vice of arbitrariness, and, capriciousness, thereupon, the afore suppressed material fact may yet not work adversarially against the writ petitioner. 4. Be that as it may, both the writ petitioner, and, respondent No.3 are left with a minimal time to serve, the, government. Their competing claims for hence, theirs becoming unamenable to suffer transfer orders, more especially, vis-a-vis, un-amenability of the petitioner, to, suffer an order of transfer, is, to be tested on the strength of applicability, upon, each, vis-a-vis, the guiding principles, embodied in the Rule 5.5, of, the Comprehensive Guiding Principles-2013, Rule whereof stands extracted hereinafter:- "Rule 5.5. Concession to officials likely to retire: in case of Class-III and Class-IV officials likely to retire within two years, as far as possible, should be posted in the convenient places/station, subject to vacancy." However, a reading thereof, makes it patently clear, vis-a-vis, the afore rule becoming inapplicable, to transfers, of, gazetted officers, as both, the petitioner, and, co-respondent No.3 are. Consequently, the mere factum of the petitioner, being left with, a, minimal span, of, time to serve the government, cannot carry forward, his espousal qua hence his suffering, a, transfer, through, the impugned order, rather begetting any ill consequence(s) of his/its, becoming encumbered, with vices of capriciousness, and, arbitrariness. 5. The writ petitioner, is, a public servant, and, he under the salient tenets of service of jurisprudence, is not entitled to claim, any indefeasible right, for his being posted at a station, of his choice, and/or of his being continuously posted at a particular station, (i) yet with an exception, vis-a-vis, the transfer order demonstrably emanating, from sheer malafides, becoming perpetrated, upon, him, by the appropriate government, or upon evidently, therethrough, theirs striving to wreak vendetta, upon, him. Since, only through the afore valid projection being made, and, also theirs becoming proven, through adequate material becoming placed on record, thereupon, the order of transfer can become construed, to, arise from or its becoming ingrained, with constitutionally forbidden vices, of, arbitrariness, and, capriciousness, (ii) and, whereupon, the challenge as cast against the afore transfer order, can become countenanced. However, the petitioner cannot contend, that, the impugned transfer order, is, stained with any vice, of, arbitrariness, and/or, of, capriciousness, conspicuously, and, more so, when no material in support thereof exists on record, nor hence, any bald pleadings qua therewith, also do not carry any tinge, of, the afore constitutionally barred vices. In aftermath, the petitioner cannot claim, an, indefeasible right for his being, even at the end of his carrier, hence, retained at Tehsil Officer, Indora, (iii) as, thereupon, the norms of service jurisprudence, casting a diktat, upon him to accept, during the phase of his serving the government, the orders of transfer made upon him, unless they are not suffering from any vices of discrimination or arbitrariness or rather are bereft of any vice of sheer vendetta becoming therethrough hence wreaked upon him. Reiteratedly, since the afore transfer orders are not suffering, from, any of the afore vices, of, arbitrariness or discrimination, thereupon, the endeavour of the writ petitioner, to contest, the impugned transfer order, is, grossly unmeritworthy. 6. The writ petitioner, has, even challenged the validity of making of the impugned transfer order, upon, the factum of, its occurring, during the phase of Covid-19, and, also its occurring during the phase, whereat, a ban being imposed, upon, transfers being made, (a) yet the validity of the afore espousal, is wholly blunted, from the trite factum, vis-a-vis, there occurring, trite unrebutted contentions, in, the reply supported by an affidavit, hence, meted by co-respondent No.2, to the writ petition, with, a clear disclosure therein, vis-a-vis, his transfer order, (b) through, occurring during the ban period, yet it being made within the domain, of, an exception thereto, inasmuch, as it emanating, upon, an approval thereto, being granted, by, the competent authority. 7. For the foregoing reasons, there is no merit, in the extant petition, and, it is dismissed accordingly. All pending applications also stand disposed of.