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2023 DIGILAW 608 (HP)

Kewal Singh v. State of Himachal Pradesh

2023-12-28

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. The petitioner has filed the instant writ petition with the following prayer:- “That the impugned Order, dated 11.07.2023 at Annexure P-2, whereby the Petitioner has been ordered to be transferred from Police Station Bangana to Police Line, Una (H.P.) may kindly be quashed and set aside, and the Petitioner may kindly be permitted to continue at the present station of posting in Police Station Bangana, District Una (H.P. ), the interest of just.” 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings. 4. The petitioner is a Non-Gazetted Officer, being an Assistant Sub-Inspector of Police, has assailed the orders dated 11.07.2023, [Annexure P-2] transferring him from Police Station Bangana to Police Lines, Una. 5. The petitioner has assailed the transfer orders (Annexure P-2) on the ground that; (i) the petitioner has completed only four and half months of stay at the present station i.e. Police Station Bangana; (ii) petitioner is due for superannuation on 31.05.2024 i.e. in about five months now; and (iii) petitioner has some adversial family circumstances/hardships, which are borne out from the medical prescription as in Annexure P-3. 6. The respondents have filed a reply on the affidavit of Shri Arjit Sen Thakur, Superintendent of Police, District Una. Reference to the reply admits that the petitioner is due for superannuation on 31.05.2024, as per Annexure R-2. Reply reveals that the petitioner has been serving within thirty kilometers, since long. However, in Para 9 of the reply, it is stated that the petitioner was transferred from Police Station Bangana to Police Line Una on 11.07.2023 but the petitioner did not join at Police Line Una and proceeded on medical leave. Para 9 of the reply further reveals that the respondents have not disputed the fact that the petitioner has made any representation or request regarding his grievances or circumstances or for adjustment or cancellation of transfer to the Appointing Authority- Respondent No.3. 7. In Para 10 of the reply, the respondents have tried to justify the issuance of transfer orders on the basis of the guidelines (Annexure R-3) which provide that the NGOs including ASIs, are liable to be transferred from one district to another district and within same district in exigencies of service and in public interest. 7. In Para 10 of the reply, the respondents have tried to justify the issuance of transfer orders on the basis of the guidelines (Annexure R-3) which provide that the NGOs including ASIs, are liable to be transferred from one district to another district and within same district in exigencies of service and in public interest. In this background, the respondents have tried to justify the transfer orders. 8. This Court has considered the pleadings and also heard Mr. Bhuvnesh Sharma, learned Senior Advocate assisted by Ms. Vishali Lakhanpal, Advocate and Mr. B.C. Verma, learned State Counsel, for the respective parties. 9. No doubt, Respondent No.2-Director General of Police, Himachal Pradesh, has issued office order on 09.02.2007 (Annexure R-3) prescribing the guidelines for posting the Non-Gazetted Officers [Executive Police] throughout the State. This order also mandates that an NGO can be transferred and posted, subject to suitability, administrative feasibility and in public interest from one district to another and also within same district, but at the same time, a reference to Clause 10 of the order Annexure R-3, prescribing the norms and guidelines and concessions to employees, working in police department, cannot be ignored, as has been done by the respondents, while issuing the impugned transfer orders. Para 10 of the aforesaid transfer norms-guidelines, reads as under:- “NGOs who are due for retirement within two years may be posted to either of the three places of their choice (except their Home District) subject to availability of vacancy and administrative feasibility.” 10. Once the Respondent No.2-Director General of Police, Himachal Pradesh, has issued Clause 10 of the Office Order-Norms prescribing the guidelines for transferring and concessions available to the NGOs [Executive Police] which includes the ASIs i.e. present petitioner; then, the respondents cannot wriggle out of their own guidelines-order as referred to above. The guidelines and orders governing transfers, should not be left to remain on papers only. Once the orders and guidelines, give rise to legitimate expectation of an employee then, the respondents are bound to give effect to the aforesaid Clauses including Clause 10 supra; either by calling for an option from an employee at the time when he is left with almost two years for retirement or by otherwise considering an employee for posting at one of the three stations of choice and to redress the hardships, if any. In the instant case, once the petitioner is due for retirement on 31.05.2024 i.e. after about 5-6 months now and the guidelines-order dated 09.02.2007 (Annexure R-3) mandates that in case an employee is less than two years for retirement then such an employee is entitled to be posted to either of the three places of choice subject to availability of vacancy and administrative feasibility. The only rider for neither considering nor extending the concession of posting of an employee at one of the stations of choice is when, such station of choice is located in the home district of the aforesaid employee. In addition to this, the next rider, for not considering the case for posting at station of choice is in case, the administrative requirements do not permit the transfer of the employee to any of the three stations of choice. In the present case, the record reveals that the respondents have neither called for any option from the petitioner for being considered for posting at any of the three stations of choice nor have the respondents spelt out any impediment based on his home district or administrative requirement, in terms of Clause 10 of the order-guidelines (Annexure R-3) till day. 11. In view of the non- compliance of Clause 10 of the norms-orders governing transfers of employees of police department (Annexure R-3), but without going into the other rival claim and counter claims of the parties, this Court would have quashed the impugned order dated 11.07.2023 (Annexure P-2), transferring the petitioner for Police Station Bangana, to Police Lines, Una, but in peculiar facts and circumstances, once the respondents have neither called for any option for indicating three stations of choice from the petitioner nor has the petitioner exercised any such option for being considered for posting at one of the three stations of choice, in terms of Para 10 of the Policy-Order (Annexure R-3) referred to above then, in these circumstances, this Court, permits the petitioner to make a representation indicating three stations of choice, in terms of Clause 10 of the norms-order (Annexure R-3), dated 09.02.2007 (Annexure R-3) to the Respondent No.2 -Director General of Police, Himachal Pradesh, within 10 days from today; with further directions to the aforesaid respondent to examine the representation and to pass appropriate orders, in light of Clause 10 of the order-guidelines (Annexure R-3), within three weeks, thereafter. 12. 12. Till the decision of the representation, the operation of the impugned transfer orders dated 11.07.2023 (Annexure P-2) transferring the petitioner from Police Station Bangana to Police Lines, Una shall remain stayed, as earlier ordered by this Court on 28.07.2023. In aforesaid terms, the writ petition as well as all the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.