Asha Kiran Sharma v. State Of Himachal Pradesh & Ors.
2021-03-31
AJAY MOHAN GOEL
body2021
DigiLaw.ai
JUDGMENT Ajay Mohan Goel, J. - By way of this writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following substantive relief:- "(a) Writ in the nature of certiorari may kindly be issued and the transfer order dated 05.10.20 i.e. Annexure P-2, whereby the respondent No. 6 has been transferred to Government Senior Secondary School Manjyat, Tehsil Arki (Solan), may kindly be quashed and set aside in the interest of justice." 2. Brief facts necessary for the adjudication of the present petition are as under:- The petitioner before this Court was appointed as a Drawing Master, by the School Management Committee of Government Senior Secondary School, Manjyat, Tehsil Arki, District Solan, H.P. The petitioner is stated to be working as such since December, 2018. Her grievance is with regard to the transfer of respondent No. 6 vide Annexure P-2, dated 6th November, 2020, vide which, said respondent has been transferred and posted in place of the petitioner in condonation of short stay and without TTA/JT. 3. Mr. Suneel Awasthi, learned Counsel for the petitioner has argued that since the appointment of the petitioner in the school concerned on 4th of December, 2018, she has worked with great devotion and sincerity and the transfer of respondent No. 6 in her place is an act of colourable exercise of power on the part of the respondents, as neither there was any administrative exigency nor any public interest was involved in the transfer of respondent No. 6 to Government Senior Secondary School, Manjyat, Tehsil Arki, District Solan. He has further argued that arbitrariness of the decision of the respondents can be inferred from the fact that there are many posts of Drawing Master lying vacant in various schools in District Solan, yet, respondent No. 6 has been transferred to Government Senior Secondary School, Manjyat. Learned Counsel has further submitted that though the petitioner has been appointed by the School Management Committee, yet, if with the passage of time, government takes a policy decision to confer certain benefits upon the incumbents appointed through SMC, then, if the impugned transfer is given effect to, the petitioner will suffer irreparable loss. On these bases, he submits that the petition be allowed and impugned transfer order be set aside. 4.
On these bases, he submits that the petition be allowed and impugned transfer order be set aside. 4. The stand of the State is that appointment to the post of Drawing Master in Government Senior Secondary School, Manjyat, Tehsil Arki, by the School Management Committee has not conferred upon the petitioner any indefeasible right and Clause 9 of policy vide which the School Management Committees are appointing the teachers, itself is crystal clear that such appointment does not confers any right of permanent appointment against the post to the persons so appointed and his/her services can be put to an end either on account of fresh appointment or transfer. Learned Additional Advocate General has further submitted that posting of an employee is the prerogative of the employer and the government in its wisdom has appointed respondent No. 6 in the school where the petitioner was serving, after having been appointed by the School Management Committee and as the transfer of respondent No. 6 is a conscious decision taken by the government to ensure that regular incumbent is posted in the school concerned, the petitioner has no right to assail the same by alleging arbitrariness because except bald assertions of the petitioner with respect to arbitrariness, no material has been produced on record to the effect that transfer of respondent No. 6 is on account of some ulterior motive. 5. Learned Counsel for the private respondent have also adopted the stand of the State. 6. I have heard learned Counsel for the parties and gone through the pleadings as well as record of the case. 7. As it is not in dispute that the appointment of the petitioner as Drawing Master in Government Senior Secondary School, Manjyat, was through School Management Committee and no procedure, as envisaged in the Recruitment and Promotion Rules for appointment to the post of Drawing Master, was followed at the relevant time, the Court concurs with the submissions of learned Additional Advocate General that appointment of an incumbent as a teacher in the school by the School Management Committee does not confers upon the incumbent an indefeasible right to be permanently posted in that particular school because the government does has a right to make appointment on regular basis, may be by transfer or by making fresh posting against the post.
The very fact that the government has decided to do away with the services of a teacher appointed through SMC by sending a regular incumbent demonstrates that the act of the government is in public interest, and therefore, this Court does not finds any force in the contention of learned Counsel for the petitioner that transfer of respondent No. 6 is without any public interest. As far as contention of learned Counsel for the petitioner that if the impugned transfer order is given effect to, then it may adversely affect the rights of the petitioner, if in future, the government comes up with a policy conferring benefits upon the incumbents appointed through School Management Committee, is concerned, all that this Court can observe is that the rights of the parties are to be adjudicated upon by the policies etc. of the government in vogue at the time when the issues are decided and same cannot be decided on the basis of future contemplations of the party(s). 8. In view of the observations made hereinabove, as this Court does not finds any merit in this petition, the same is accordingly dismissed. Pending miscellaneous application, if any, also stand dismissed.