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2021 DIGILAW 227 (HP)

Charan Jit Kumar v. State of H. P.

2021-04-09

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The instant is yet another case of political patronage over an employee, which resulted in transfers of the petitioner and respondent No. 2. The petitioner, working and posted as Assistant Engineer (Civil), HPPWD Sub-Division Dhaneta, District Hamirpur, was transferred vide impugned notification dated 15.02.2021 (Annexure P-2), from District Hamirpur to HPPWD Sub-Division NH Chamba, after short stay of one year and eight months at Dhaneta, hence he filed the instant petition. 2. It is contended in the petition that on 19.05.2020, respondent No. 1 wrote to the petitioner, seeking his willingness for transfer on mutual basis from HPPWD Sub-Division Dhaneta to HPPWD Sub-Division Barsar. The petitioner, vide letter dated 02.06.2020, conveyed that he has only eleven months stay at Dhaneta and he is at the verge of retirement, therefore, requested that he may be permitted to complete his normal tenure at Dhaneta. However, the petitioner was transferred, ignoring his short stay at Dhaneta, only to accommodate the private respondent, who only completed nine months at Chamba, thus, as per the petitioner, the impugned transfer order is politically motivated, in violation of Transfer Policy and issued on the basis of DU/UO note. 3. In reply, respondent No. 1/State averred that since the petitioner is holding Class-I (Gazetted) State cadre post, he is liable to be posted anywhere in the State at any time, in exigency of service and he cannot seek the benefit of Transfer Policy. The reply, which is high in details and low in substance, only revolves around the above-mentioned averment. Lastly, it is averred that impugned transfer order, issued by the competent authority, is in accordance with law, so the same does not require any interference. 4. The private respondent, in his reply, denied that impugned transfer order is politically motivated. He has averred that the petitioner has been transferred in public interest. Lastly, it is prayed that the instant writ petition, being devoid of merits, be dismissed. 5. In rejoinders, the petitioner averred that transfer of an employee is to be made as per the Transfer Policy, but instant is a case where transfer has been effected only to accommodate the private respondent. The petitioner reiterated his rest of the contentions, as made in the writ petition. 5. In rejoinders, the petitioner averred that transfer of an employee is to be made as per the Transfer Policy, but instant is a case where transfer has been effected only to accommodate the private respondent. The petitioner reiterated his rest of the contentions, as made in the writ petition. Lastly, he has prayed that since the impugned transfer order is illegal, passed on the basis of DU/UO note and in violation of Transfer Policy, the same deserves to be quashed and set aside. 6. We have heard the learned counsel for the petitioner, learned Additional Advocate General for respondent No. 1/State, learned counsel for respondent No. 2 and gone through the records carefully. 7. Learned counsel for the petitioner has argued that the petitioner has been transferred, as private respondent got his adjustment at the place of posting of the petitioner by way of political interference, i.e. by procuring DU/UO note. He has further argued that petitioner had short stay at his present place of posting and he has not been allowed to complete his normal tenure even when he has less than two years to retire. On the other hand, learned Additional Advocate General has argued that the petitioner is a Class-1 Officer, so the Transfer Policy does not apply in his case and moreover, he has been transferred in exigency of service and public interest, so the impugned transfer order is not politically motivated. 8. Learned counsel for the private respondent has argued that respondent No. 2 has been transferred by the competent authority after application of mind, so the instant petition is not maintainable. 9. Indisputably, the petitioner is superannuating on 31.05.2022, he has not completed his normal stint at the present place of posting and even the private respondent, who has short stay at his place of posting, has been transferred, replacing the petitioner. Avowedly, Transfer Policy does not apply in the instant case, as both the petitioner and the private respondent hold Class 1 Gazetted posts. However, considering twin-fold aspects, viz., the petitioner has less than fourteen months to superannuate and on being asked by respondent No. 1, for his mutual transfer from Dhaneta to Barsar, he had requested that he may be permitted to complete his normal tenure at the present place of posting, his transfer has no justification. However, considering twin-fold aspects, viz., the petitioner has less than fourteen months to superannuate and on being asked by respondent No. 1, for his mutual transfer from Dhaneta to Barsar, he had requested that he may be permitted to complete his normal tenure at the present place of posting, his transfer has no justification. At the same time, also considering auxiliary aspects that petitioner has been transferred only after completion of 11 months’ stint at Dhaneta and the fact that the private respondent, who replaced the petitioner, also not completed his normal tenure at his present place of posting. 10. Needless to say that present case does not fall under the ambit of Transfer Policy, but object of transfer should not punitive to an employee and rehabilitative to another. Employer has only one yardstick for its employees, however, instant is a case where petitioner has been treated apathetically, especially when he has only completed 11 months’ stint at Dhaneta, he is superannuating in less than fourteen months, so certainly, when he is retiring, he has an edge over the private respondent and he should not be disturbed. 11. Unarguably, a Class-1 Officer can be transferred anywhere at any time in the State and the Transfer Policy is not applicable in case of Class-1 Officers, but the records demonstrate that the petitioner has been transferred upon intervention of the private respondent, who himself is willing to be posted at petitioner’s place. Moreover, vide Annexure PR-1, consent for transfer on mutual basis was ordered to be obtained from the petitioner, to which, he has refused. Thus, it is clear that the petitioner has been transferred against his consent, he has not been allowed to completed his normal stint at Dhaneta and ignoring the fact that he has less than fourteen months to retire. The records nowhere reflects plausible reasons why the petitioner and respondent No. 2 have been transferred, rather it seems that there is no application of mind by the competent authority and the impugned transfer order (Annexure P-2) is nothing, but a result of political patronage over respondent No. 2. The transfers of the petitioner and respondent No. 2 are without exigency of service or without any good administrative reason, so the same are bad in law and only effected upon DO/UO note issued in favour of respondent No. 2. 12. The transfers of the petitioner and respondent No. 2 are without exigency of service or without any good administrative reason, so the same are bad in law and only effected upon DO/UO note issued in favour of respondent No. 2. 12. In the instant case, the transferring authority has passed the impugned order without application of mind and without taking into consideration the facts that both the petitioner and the private respondent have short stints at their respective places of posting. The petitioner, on being asked by respondent No. 1, refused to be transferred from his present place of posting and most importantly the fact that the petitioner is superannuating in less than fourteen months. Likewise, there was no exigency of service or reason that petitioner’s services are required at Chamba and respondent No. 2 is most suitable to be transferred at the petitioner’s place. 13. In view of the above discussion, the impugned transfer order dated 15.02.2021 (Annexure P-2) is not sustainable in the eyes of law and we deem it proper to quash the same. Accordingly, the instant petition is allowed and impugned transfer order dated 15.02.2021 is quashed and set-aside. The petition, so also pending application(s), if any, stand(s) disposed of accordingly.