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2023 DIGILAW 483 (HP)

Subhash Chand v. State of H. P.

2023-12-04

RANJAN SHARMA

body2023
JUDGMENT : RANJAN SHARMA, J. 1. Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No. 1 and 2. 2. With the consent of the appearing parties, the instant writ petition is taken up for disposal, at this stage, in view of the orders intended to be passed herein. 3. The petitioner has filed the instant writ petition with the following prayers: “(i) That writ in the nature of certiorari may kindly be issued and the impugned office order dated 28.11.2023 (Annexure P-1), may kindly be quashed and set aside, since the same has been issued in gross and palpable violation of clause of clause 8 & 16.1 of the transfer policy framed by the State Government as well as on the basis of D.O. Note No. 85344 dated 21.10.2023 issued by Respondent No. 3, without there being any public interest or administrative exigency involved, with a view to unnecessary harass the petitioner without any lawful justification and to adjust/accommodate the near and dear to Respondent No. 3 at a later point of time after the transfer of the petitioner from the present place. (ii) That writ of mandamus may kindly be issued, directing the respondents to allow the petitioner to continue to work as Senior Assistant in District Rural Development Agency, Kinnaur at Reckong Peo, District Kinnaur, H.P. or in the alternative, to adjust the petitioner in one of the stations as mentioned in Para 5 (h) supra, since the petitioner is presently serving in tribal/most difficult area and as per Clause 16.1 of the transfer policy, he is entitled to get station of his choice.” 4. The case of the petitioner is that he was appointed as Clerk in the year 2001. He was promoted as Senior Assistant in April, 2022. Admittedly, the petitioner had served as Clerk and now as Senior Assistant at one place, i.e. Reckong Peo (the tribal area). 5. Now, the grievance of the petitioner is that as per office order dated 28th November, 2023, Annexure P-1, he has been transferred as Senior Assistant, from District Rural Development Agency, Kinnaur to Development Block, Nankhari, District Shimla, against vacancy with immediate effect with TTA/Joining Time. 6. 5. Now, the grievance of the petitioner is that as per office order dated 28th November, 2023, Annexure P-1, he has been transferred as Senior Assistant, from District Rural Development Agency, Kinnaur to Development Block, Nankhari, District Shimla, against vacancy with immediate effect with TTA/Joining Time. 6. The petitioner has assailed this office order dated 28.11.2023, Annexure P-1, on the ground (i) that the transfer has been ordered on the basis of a D.O. Note No. 85344, dated 21.10.2023 in view of the averments made in Para-5(b) of the writ petition; (ii) the transfer is on the basis of a DO Note given by respondent No. 3, without there being any factual foundation or material, revealing public interest or administrative exigencies; (iii) the petitioner has highlighted the hardships, in Para-5 (c) of the writ petition. 7. Per contra, at this stage, Mr. Vishal Panwar, learned Additional Advocate General, submits that once the petitioner had been serving at the same station, i.e. Reckong Peo, since his initial posting and has completed more than twelve years at the present station, therefore, the petitioner has neither any fundamental nor any legal right to seek retention or posting at the same or convenient stations, suitable to him. Mr. Vishal Panwar, learned Additional Advocate General, submits that the transfer has been made just to fill-up a vacancy at the transferred station at Nankhari (Shimla). 8. Mr. Chaman Negi, learned counsel for the petitioner, submits that once the transfer has been made on the basis of extraneous consideration, without any foundation or material revealing public interest and administrative exigencies, therefore, the impugned transfer orders are ex-facie arbitrary, perverse, malafide and untenable in law. 9. At this stage, learned counsel for the petitioner submits that keeping in view the entirety of facts and circumstances, this court may permit the petitioner to ventilate his claim, by way of a representation to the competent authority-respondent No. 2-Director, Rural Development Department, Himachal Pradesh, within ten days from today. The prayer being innocuous, is not opposed by the learned State Counsel and the same appears to be genuine and is granted in the interests of justice. 10. The prayer being innocuous, is not opposed by the learned State Counsel and the same appears to be genuine and is granted in the interests of justice. 10. Accordingly, this Court permits the petitioner to make a representation to respondent No. 2-Director, Rural Development Department, Himachal Pradesh, within ten days from today; with further direction to the aforesaid authority to examine the same and pass appropriate orders within two weeks thereafter, by an independent and impartial application of mind, in view of trite law mandated by the Hon’ble Apex Court, deprecating the transfer on the basis of a DO/UO Notes, without any foundation and without any cogent material revealing public interest and administrative exigencies. 11. In the entirety of facts and circumstances, referred to above, the petitioner has made out a prima-facie case for grant of interim protection. Accordingly, the office order dated 28.11.2023, Annexure P-1, transferring the petitioner as Senior Assistant, from District Rural Development Agency, Kinnaur, at Reckong Peo to Development Block, Nankhari, District Shimla, shall remain stayed, till the decision of the representation, as aforesaid. 12. In the aforesaid terms, the writ petition as well as the pending miscellaneous applications, if any, shall also stand disposed of, accordingly.