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Himachal Pradesh High Court · body

2020 DIGILAW 846 (HP)

Parvesh Kumar v. HP State Electricity Board Ltd

2020-11-24

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

body2020
JUDGMENT Chander Bhusan Barowalia, J. - By medium of the extant writ petition, the petitioner is seeking the following substantive reliefs: "1. To kindly allow the present petition and quash the order of transfer dated 01.09.2020 (Annexure P-I) and relieving order dated 02.09.2020 (Annexure P-II) in the interest of justice and fair play. 2. To direct the respondents to provide the petitioner sufficient time of at least 15 days to handing over the charge." 2. Precisely, the facts of the case, as encapsulated in the writ petition, are that the petitioner, in the year 1998 was appointed, on contractual basis, as Junior Engineer (Electrical) in the Himachal Pradesh State Electricity Board (respondent No. 1), hereinafter referred to as "the respondents-Board". On 16.10.2018, he was transferred to Electrical Division-1, SDA Complex, Kasumpati, Shimla. Through impugned transfer order (Annexure P-1), dated 01.09.2020, the respondents-Board transferred the petitioner in the Office of Chief Engineer (System Planning) HPSEB Ltd. Shimla, and through Annexure P-II, dated 02.09.2020, he was relieved. As per the petitioner, he has neither completed his normal stint nor there is any complaint against him. The action of the respondents-Board is arbitrary, illegal and the transfer is without any reasonable ground or basis. It is further contended that the petitioner has been relieved in a hasty manner on the next day of impugned order of transfer and he was not even given opportunity to handover the charge. The petitioner has further contended that the impugned order of transfer has been issued during the ban on transfers and thus in violation of the rules. In view of the above backdrop, the petitioner, by maintaining the extant petition, seeks the relief that impugned transfer order, dated 01.09.2020 (Annexure P-I) and consequent relieving order, dated 02.09.2020 (Annexure P-II) be quashed and set-aside in the interest of justice. 3. Per contra, the respondents-Board, by filing an elaborative and detailed reply, resisted and refuted the contentions raised by the petitioner. As per the respondents, transfer is an 'incidence of service' and to accommodate an employee, considering the exigencies of service and public interest, is within the domain of employer/competent authority. It is further contended that the petitioner served in the office of Superintending Engineer (Interstate), HPSEB Ltd., Totu, Shimla-11 on and w.e.f. 29.11.2016 to 16.10.2018, i.e., within the precincts of Municipal Corporation, Shimla. It is further contended that the petitioner served in the office of Superintending Engineer (Interstate), HPSEB Ltd., Totu, Shimla-11 on and w.e.f. 29.11.2016 to 16.10.2018, i.e., within the precincts of Municipal Corporation, Shimla. Thereafter, he was adjusted in Electrical Section, HPSEB Ltd. New Shimla, that is also within the precincts of Municipal Corporation, Shimla and till the issuance of impugned transfer order (Annexure P-I), dated 01.09.2020, the petitioner is serving there. As per the respondents, the area, where the petitioner was posted prior to issuance of impugned transfer order (Annexure P-I), is an important area, where peak load demand goes upto 7MVA and the area is suffering due to the poor working of the petitioner, as he is not even performing basic functions of Junior Engineer. The petitioner has no control over operational/technical staff and he even did not respond when main 11KV feeders were down. Thus, the competent authority found him unfit to remain posted in front office of the respondents. It is averred that in view of the aforesaid dereliction in duty, competent authority recommended to transfer the petitioner and provide a suitable substitute to the general public/consumers. Since no improvement was observed in the working of the petitioner, so, after due deliberations, he was transferred and consequently relieved. Therefore, the transfer of the petitioner cannot be given color of arbitrariness and the same is within the confines of law. The petitioner is transferred within Shimla and not outside Shimla, even then, he, instead of joining his duties at the transferred station, indulged in litigation, so the public work is eventually suffering. As per the respondents, indeed, there is ban on transfers, however, transfer and posting in the rarest of the rare cases, i.e., only on extreme medical grounds or on administrative exigencies is permitted. The reports submitted before the Supervisory authorities against the petitioner, which eventually formed basis for his transfer, upon consideration by the Management Board fall within the category of administrative exigencies and in public interest, as the working of the petitioner became prejudicial to general public/consumers. Lastly, it is prayed that the extant writ petition be dismissed, as the petitioner has been transferred in the foregoing background, considering administrative exigencies and in public interest after approval of the competent authority with no tinges of malafide, arbitrariness and the same is not in violation of statutory provisions. 4. Lastly, it is prayed that the extant writ petition be dismissed, as the petitioner has been transferred in the foregoing background, considering administrative exigencies and in public interest after approval of the competent authority with no tinges of malafide, arbitrariness and the same is not in violation of statutory provisions. 4. The petitioner, by filing rejoinder to the reply filed by the respondents, refuted the contentions made therein and reiterated and reasserted the stand taken in the writ petition. The petitioner asserted some auxiliary facts, which were not earlier taken in the writ petition, and are trifling in nature, thus, being unimportant, consciously not mentioned here. 5. We have heard the learned Counsels for the parties and also gone through the records. 6. Learned Counsel for the petitioner has argued that the petitioner, who has not completed his normal tenure at the present place of posting, is transferred during the ban on transfers, thus his transfer is not only illegal, but also arbitrary and discriminatory action of the respondents. He has further argued that the impugned transfer order and consequent impugned relieving order, in the wake of the facts and circumstances of the case, need to be quashed and set-aside by allowing the extant writ petition. Conversely, the learned Counsel for the respondents-Board, has argued that it is the prerogative of the employer to post/transfer any employee anywhere in the State, considering the administrative exigencies and public interest. He has further argued that after due deliberations, the petitioner was found unsuitable for being posted at the place where he was, prior to his transfer, was posted, due to his poor performance, so he was transferred. The petitioner is transferred within the radius of not more than 8 kilometers and that too within District Shimla and only for the reason that where the petitioner was earlier posted, he was not performing well, pendency mounded and the area is also important. Lastly, he has prayed that the petition sans merits and be dismissed. 7. After perusal of the records, Annexures RA-1, RA-2 and RA-3, appended with the reply of the respondents, it is clear that area, over which the petitioner had charge, and working as Junior Engineer, is thickly populated and the petitioner was not performing his basic duties of Junior Engineer, which resulted into pendency of new connections and virtually consumers are affected. After perusal of the records, Annexures RA-1, RA-2 and RA-3, appended with the reply of the respondents, it is clear that area, over which the petitioner had charge, and working as Junior Engineer, is thickly populated and the petitioner was not performing his basic duties of Junior Engineer, which resulted into pendency of new connections and virtually consumers are affected. The above annexures also demonstrate that the petitioner, being Junior Engineer of the area concerned, does not bother about the electricity supply position and when main 11 KV feeder were down, he did not respond. Thus, despite the fact that the petitioner is posted in an area, which is thickly populated, he was found careless in his official duties, rendering him unfit for being posted in such an area. 8. Now, this Court has to see whether the careless attitude of the petitioner towards his official duties makes a valid ground for his transfer? Every government employee is under obligation/duty to accomplish the tasks/duties assigned to him/her and if the employer finds an employee unsuitable for a particular seat, the employer can always transfer the unsuited employee and such an action cannot be termed arbitrary, illegal and unsustainable in the eyes of law. However, if the action of the employer, in transferring the employee, has some occult motive and byproduct of any other orphic exercise, then the Courts can rescue the employee by apt intervention(s). After intensive examination of the records, it is more than safe to hold that the transfer of the petitioner is not tainted with arbitrariness, illegality and discriminatory, rather, the same can be said to be an outcome of petitioner's callous attitude towards his official work. So, the petitioner, being uncaring about his official duties, now, cannot agitate his transfer, which, in fact, is substitution, and expect direction from this Court to the respondents-Board not to transfer him. 9. In view of what has been discussed hereinabove, we are of the considered opinion that the transfer of the petitioner is in administrative exigencies and also in public interest, and the same does not warrant intervention of this Court. Moreover, the petitioner has been transferred to a place, which is only 5-6 kilometers from his earlier place of posting, thus no hardship can be caused to the petitioner. Moreover, the petitioner has been transferred to a place, which is only 5-6 kilometers from his earlier place of posting, thus no hardship can be caused to the petitioner. The transfer of the petitioner also can not be said to be in violation of the Transfer Policy, as the same is given effect to owing to administrative exigencies and in public interest. Further as the petitioner has been transferred within 6 kilometers and it cannot be said to be a transfer in stricter sense, so the petition is nothing but misuse of judicial machinery. 10. In view of the discussion made hereinabove, this petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand(s) disposed of.