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2023 DIGILAW 540 (HP)

Galora Ram v. State of H. P.

2023-12-15

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Ravi Chauhan, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the order intended to be passed herein. 3. The petitioner has filed the instant petition with the following reliefs:- “(i) That writ of certiorari may kindly be issued, quashing and setting aside the impugned office order dated 28.11.2023 (Annexure P-1), since the same has been issued in violation of clause 8 and 16.1 of the transfer policy framed by the State Government. (ii) That writ of mandamus may kindly be also issued, directing the respondents to allow the petitioner to continue to work at the present place of posting i.e. HP PWD Sub Division Holi under B&R Division HP PWD, Bharmour, District Chamba, H.P. and if necessitated, transfer the petitioner to the station of his choice after seeking the option of five stations of his choice as per the provision contained in Clause 16.1 of the transfer policy framed by the State Government vide Office Memorandum No.PER (AP-B)E (3)-17/2012, dated 10th July, 2013.” 4. The petitioner is Air Compressor Operator, working in Himachal Pradesh Public Works Department of the State Government. The petitioner initially joined as Beldar on daily wage basis in 1994. He was regularized in March,, 2007. On 01.09.2010, the petitioner was promoted to the post of Air Compressor Operator [Class-III] and was posted in Himachal Pradesh Public Works Department, Division Salooni, District Chamba, where he served for three years and seven months. Thereafter, he was transferred to Himachal Pradesh Public Works Department Division, Chamba, where he served for one and half years from 2015 onwards. The petitioner was transferred to Himachal Pradesh Public Works Department Division, Bharmour [Sub-Division Holi], which is a tribal area, in the year 2017, as per averments made in Para-2 of the writ petition. 5. The grievance of the petitioner is that the respondents have issued an order dated 28.11.2023, Annexure P-1, transferring the petitioner from Sub-Division, Holi, under B&R Division, Bharmour to HPPWD Division Dalhousie, against vacancy, with TTA/JT. 6. 5. The grievance of the petitioner is that the respondents have issued an order dated 28.11.2023, Annexure P-1, transferring the petitioner from Sub-Division, Holi, under B&R Division, Bharmour to HPPWD Division Dalhousie, against vacancy, with TTA/JT. 6. The petitioner has assailed the impugned transfer orders dated 28.11.2023, Annexure P-1, on the ground, that the petitioner belongs to tribal area of Bharmour and he has completed the mandatory service of five years as per Clause 16.5, in the tribal area of Bharmour. Therefore, the petitioner has a right to be considered for posting from tribal area to any of the five stations choice, in terms of Clauses 12 and 16.1 of the Transfer Policy, but the impugned orders dated 28.11.2023, Annexure P-1, have been issued by ignoring the provisions which is alleged to be not in spirit of existing Policy and the law. 7. Per contra, Mr. Ravi Chauhan, learned Deputy Advocate General, submits that it was for the petitioner to submit a claim for posting in soft area and no claim was raised, then the impugned transfer orders were issued. 8. Be that as it may, once the State Authorities have issued the Transfer Policy, mandating certain concessions, to its employees, in view of Clauses 12 and 16.1 of the Transfer Policy, then, the aforesaid Clauses in the Transfer Policy, cannot be permitted to remain only on papers. 8. Be that as it may, once the State Authorities have issued the Transfer Policy, mandating certain concessions, to its employees, in view of Clauses 12 and 16.1 of the Transfer Policy, then, the aforesaid Clauses in the Transfer Policy, cannot be permitted to remain only on papers. In order to give effect to the aforesaid Clauses in the Transfer Policy, the respondents are bound to either call for an option from an employee or to prescribe a time-line when, such option(s) by way of representation, could be exercised by an employee, on completion of the normal tenure of two winters and three summers in such areas [for those who do not belong to such areas] and on completion of the normal tenure of five years in such areas [for those who belong to such areas as in this case]; and then to consider/examine the aforesaid option and to pass appropriate orders, in terms of Clauses 12 and 16.1 of the Transfer Policy, so that the benefit of such concession(s) is admissible in a fair, objective and transparent manner to all concerned, so as to avoid perversity and discrimination in State action; by prolonging the stay of an employee and by permitting those who have never served in such areas to enjoy leisure postings, either on political patronage or extraneous considerations; which smells of arbitrariness unreasonableness, defeating the object and spirit of Article 14 of the Constitution of India. Admittedly, in instant case, the respondents have not called for an option from the petitioner in terms of Clauses 12 and 16.1 of the Transfer Policy. 9. Under these circumstances, as prayed for, this Court permits the petitioner to make a representation to Respondent No.2-Engineer-in-Chief, (PWD) to the Government of Himachal Pradesh, within two weeks from today; with further directions to the aforesaid respondent that in case, any such representation is made, the same shall be considered/examined and appropriate orders be passed in the light of Clauses 12 and 16.1 of the Transfer Policy, within three weeks thereafter. 10. This Court hopes and trusts that while deciding the representation, the respondents shall make every endeavour to give defacto and dejure effect to Clauses 12 and 16.1 of the Transfer Policy, so as to avoid perversity, arbitrariness and discrimination in State action [as discussed in Para-8 (supra); and to ensure that the Transfer Norms are applied uniformally and equally to all concerned. 11. Consequent upon, the issuance of transfer orders dated 28.11.2023, Annexure P-1, since the petitioner has not been relieved, as stated by Mr. Surender K. Sharma, learned counsel, therefore, this Court is inclined to grant interim protection to the petitioner till decision of the representation. Accordingly, the transfer orders dated 28.11.2023, Annexure P-1, transferring the petitioner from Sub-Division, Holi, under B&R Division, Bharmour to HPPWD Division Dalhousie, shall remain stayed, till decision of the representation. 12. Needless to say that, this Court has not adverted to the merits of the matter and all questions of facts and law are left open. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.