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2024 DIGILAW 108 (HP)

Tara Chand Sharma v. State of Himachal Pradesh

2024-01-12

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. The petitioner has filed the instant writ petition with the following prayer(s):- “i) That an appropriate writ, order or directions may kindly be issued and Annexure P-4 dated 26.9.2023 may kindly be quashed and set aside.” 2. The case of the petitioner is that petitioner was appointed as Language Teacher under Voluntary Teacher Scheme in 1992 in GSSS Mandhole, Tehsil Jubbal, District Shimla. Consequent upon the Government decision, the services of the petitioner were regularized as Language Teacher in 1999 while working in the same school where the petitioner continued to work till 2002. Thereafter, petitioner worked in GSSS Sarog and was thereafter transferred to GSSS Sanjauli and thereafter in GSSS (Boys) Theog, then in GSSS Totu and then in GSSS Jais. On promotion as TGT (Arts) in 2011, petitioner served under the respondents at GHS Bathlog. Thereafter, on promotion as Lecturer (School Cadre) (Hindi), petitioner was posted in GSSS Purag (Shimla) on 30.8.2022. 3. While working at GSSS Purag (Shimla) as Lecturer School Cadre (Hindi) since 30.8.2022, petitioner on account of certain family hardships and adversarial conditions, made representation to the competent authority (Hon’ble Chief Minister) on 22.6.2023. The request of the petitioner was acceded to by the competent authority leading to the issuance of orders dated 29.08.2023 (Annexure P-2), whereby petitioner was transferred from GSSS Purag to GSSS Mashobra without TTA/JT. The stipulation of the terms “without TTA/JT” also corroborates stand of the petitioner that the transfer is on request which is also borne out from the records, as referred to above. 4. Based on the orders of transfer dated 29.08.2023 (Annexure P-2), petitioner joined at new place of posting i.e GSSS Mashobra on 30.8.2023. 5. Though the petitioner had joined at GSSS Mashobra on 30.8.2023, in pursuance of order dated 29.8.2023 (Annexure P-2), yet, Director of Higher Education, Himachal Pradesh has issued another order on 25.9.2023 (Annexure P-3), in cancelling the transfer orders with the pre-condition, in case the petitioner “had not joined”. Since the petitioner, had already joined at GSSS Mashobra and Annexure P-3 dated 25.9.2023 did not materialise, therefore, the Respondent No. 2 – Director, Higher Education issued another order on 26.9.2023 (Annexure P-4), whereby the transfer order dated 29.8.2023 (Annexure P-2), was cancelled, despite the fact, that the petitioner had already joined and was working in GSSS Mashobra since 30.8.2023. 6. 6. It is in this background, the petitioner has assailed the order of cancellation dated 26.9.2023 (Annexure P-4). The first contention of Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioner is that the cancellation order dated 26.9.2023 (Annexure P-4) is neither in public interest nor does it reveal any exigency of service, which forms the basis for issuance of cancellation order. He further submits that in absence of any material to justify public interest and administrative exigency, cancellation order so issued is perverse, illegal, arbitrary, malafide and violative of Articles 14 and 16 of the Constitution of India. The second contention is that the cancellation after about one month of stay at GSSS Mashobra is violative of Clause 10 of the Policy, which prescribes minimum tenure to be three years ‘at a station’. The last submission is on the ground of hardship. Petitioner has carved out case based on the treatment of father-in-law of the petitioner in para 6(iv) of the writ petition. 7. The respondents No. 1 and 2 have filed reply on the affidavit of the Director of Higher Education, verified on 6.11.2023. Perusal of para-1 of the preliminary submissions reveals that the petitioner being Lecturer (School Cadre) belongs to State cadre services and is liable to be transferred anywhere within the State in public interest and exigency in service. It is also stated in the reply that the place of posting where an employee is to be transferred is to be decided by the employer and same cannot be at the convenience of an employee. In para-3 of the reply the comparative incumbency of the petitioner as well as private respondent No. 3 (Ms. Chander Kala Sharma) have been referred to. In para-6 of the reply, on merits it is stated that the impugned order dated 26.9.2023 (Annexure P-4), cancelling the order of transfer dated 29.08.2023 (Annexure P-2), has been issued with the prior approval of the competent authority. 8. Upon issuance of notice, respondent No. 3 filed separate reply. In paras-1 and 2 of the reply the incumbency of the petitioner as well as private respondent No. 3 has been detailed. In para-3 of the reply it is admitted that stay of the petitioner at the present station i.e. GSSS Purag prior to issuance of transfer order to GSSS Mashobra on 29.08.2023 (Annexure P-2) is only one year. In paras-1 and 2 of the reply the incumbency of the petitioner as well as private respondent No. 3 has been detailed. In para-3 of the reply it is admitted that stay of the petitioner at the present station i.e. GSSS Purag prior to issuance of transfer order to GSSS Mashobra on 29.08.2023 (Annexure P-2) is only one year. In para-4 of reply, the private respondent has detailed her adversarial family circumstances. In para-5 of the reply, the stand of the private respondent is that the impugned transfer was managed by the petitioner leading to the issuance of the orders dated 29.08.2023 (Annexure P-2), without there being any public interest or administrative exigency and, therefore, same was rightly cancelled. 9. Upon issuance of notice(s) and filing of reply(ies) to the writ petition, as referred to above, the case has been taken up today, when, the respondents have produced the records leading to issuance of transfer orders dated 29.08.2023 (Annexure P-2) and cancellation order dated 26.9.2023 (Annexure P-4). ANALYSIS 10. In view of the rival submissions made by learned Senior Counsel for the petitioner as well as learned Senior Counsel for the private respondent and after hearing the learned Advocate General assisted by Mr. Rajan Kahol, learned Additional Advocate General, this Court is of the view that the transfer order dated 29.08.2023 (Annexure P-2) transferring the petitioner as Lecturer (School Cadre) (Hindi) from GSSS Purag to GSSS Mashobra (Shimla) was issued on the basis of the request - representation dated 22.6.2023 submitted by the petitioner to the competent authority (Hon’ble Chief Minister), which was approved and thereafter the order dated 29.08.2023 (Annexure P-2) was issued. 11. In this background, it is relevant to note that once the petitioner in view of adversarial family circumstances and hardships had made representation on 22.6.2023 which was approved by the competent authority on 26.8.2023 leading to issuance of transfer/adjustment order dated 29.08.2023 (Annexure P-2) transferring/adjusting petitioner from GSSS Purag to GSSS Mashobra, it is relevant to note that once transfer of the petitioner has been made on his request which is borne out from the records, then the displaced employee i.e. private respondent (Ms. Chander Kala Sharma) has neither any locus standi nor any right on facts as well as in law to assail the said transfer orders. Chander Kala Sharma) has neither any locus standi nor any right on facts as well as in law to assail the said transfer orders. In this context, reference is drawn to the judgment passed by the Hon’ble Supreme Court in the case of Shilpi Bose (Mrs) & others versus State of Bihar & others, 1991 Supp(2) SCC 659 whereby it has been held, that in case the transfer is ordered on the basis of request of an employee then, the displaced employee has neither any locus standi nor any right to assail the said transfer. In view of the mandate of the Hon’ble Supreme Court in Shilpi Bose’s case, referred above, the transfer order was passed and thereafter the cancellation order dated 26.9.2023 (Annexure P-4), cancelling order dated 29.8.2023 (Annexure P-2), does not stands to rational and logical. On this ground, the order of cancellation dated 26.9.2023 (Annexure P-4), is set aside. 12. Now, coming to the second aspect of the matter, it is relevant to note that as referred to in the reply, filed by the State Authorities including the private respondent, the case of the respondents is that transfer has been ordered on the approval of the competent authority in public interest and administrative exigency. Noticeable, it is relevant to take note of the fact that merely because the transfer has been ordered on an approval of the competent authority will not ipso facto give inference to its legality. Further, merely stating or referring, an order to be in public interest and in administrative exigency will not suffice. In order to cover the case, within the ambit of public interest and administrative exigency, the same has to have a genuine, cogent and convincing material revealing public interest and administrative exigency, which has to be borne out at the time of approval and if not therein, then, at the time of issuance of transfer orders by the Administrative – Transferring Authorities – Respondent No. 2 by an independent application of mind to these aspects, which, in the instant case are missing. 12(i) While dealing the issue of interference of elected representation [MLAs or Minister] or a person not connected with the affairs of respondent-State, in matters of transfer of an employee, a reference is made to the judgment passed by the Hon’ble Supreme Court, in Special Leave to Appeal (C) 2177 of 2014, titled as State of Himachal Pradesh versus Tara Devi, decided on 19.01.2015, reads as under:- “Learned senior counsel for the petitioners vehemently contends, that the High Court erred in striking down Clause 17 of the transfer policy. Clause 17 of the transfer policy referred to in the impugned order of the High Court, is extracted hereunder:- “17. On request from public representatives at all levels, on administrative exigencies and in the public interest, transfer shall be considered by the competent authority.” Learned senior counsel for the petitioners further contends, that the aforesaid paragraph of the transfer policy was struck down in view of the observations recorded by the High court in CWP NO. 801 of 2013- A, titled Sanjay Kumar vs. State of H.P. and Others as well as in CWP No. 5351 of 2012, titled Amir Chand vs. State of H.P. Relevant extracts referred to by the High Court from Amir Chand's case is being reproduced hereunder: “4. Coming to the issue of political patron-age. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representatives do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the com-plaint is found to be true, then alone can the employee be transferred. 5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted. 6. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted. 6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertain. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments. 7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular case. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers.” It is the contention of the learned senior counsel for the petitioners, that a perusal of Clause 17 clearly reveals, that the norms depicted in Amir Chand's case (in paragraphs 4 to 7) were duly incorporated in Clause 17 of the transfer policy. We agree with the submission advanced by learned senior counsel for the petitioners, and therefore, hereby set aside the direction of the High Court in quashing Clause 17 of the transfer policy. It is, however, directed that Clause 17 of the transfer policy should for all intents and purposes be read as was expressed in paragraphs 4 to 7 of the judgment rendered in Amir Chand's case supra.” 12(ii) The Division Bench, of this Court, in CWP No. 595 of 2023 titled as Mukesh Kumar versus State of Himachal Pradesh and others, decided on 15.06.2023, has reiterated the same legal position and the relevant paras of the judgement reads as under:- “5. The file produced by the State indicates that Hon’ble Education Minister of the Government of Himachal Pradesh had mooted the transfer of the petitioner as well as other persons vide U.O. Note No. 344, dt. 24.01.2023. 6. The file produced by the State indicates that Hon’ble Education Minister of the Government of Himachal Pradesh had mooted the transfer of the petitioner as well as other persons vide U.O. Note No. 344, dt. 24.01.2023. 6. We fail to understand how the transfers, which are normally effected by the Director, Elementary Education, are being made at the instance of the Hon’ble Minister. This supports the plea of the petitioner that there is political influence behind his transfer. 7. Also having regard to the medical condition of the daughter of the petitioner, who is 91 % disabled, which fact is supported by Annexure P-2 (certificate), issued by Zonal Hospital, Mandi, District Mandi, H.P., we are of the opinion that the impugned transfer order cannot sustain. 8. The writ petition is accordingly allowed and the transfer order dt. 04.02.2023 (Annexure P-1) qua the petitioner, is set aside and the respondents are directed to permit the petitioner to continue at GCPS Hataun, Education Block Sadar- II, District Mandi, H.P.” 12(iii) In this context, in a recent judgment passed by this Court in CWP No. 8605 of 2023, titled as Anurag Chadha vs. State of Himachal Pradesh & ors, decided on 14.12.2023, has held as under: - “7(ii) The contention of Mr. Anup Rattan, Learned Advocate General that the clubbing of previous stay within 25-30 Kms has been resorted to, in view of the fact that the petitioner has served for more than eight years at nearby stations. Anup Rattan, Learned Advocate General that the clubbing of previous stay within 25-30 Kms has been resorted to, in view of the fact that the petitioner has served for more than eight years at nearby stations. The above plea of the State Authorities, has no force and the previous postings at nearby or adjoining stations (at different Headquarters) cannot be the basis for this Court to refrain itself from showing indulgence or in examining the validity of the impugned transfer orders, for the reason, firstly, once the State Authorities had permitted the petitioner to serve at nearby places therefore, the respondents are estopped to raise such a plea; and secondly, once Clause 10 of the existing transfer policy mandates that the computation of stay of an employee to be three years “at one station” then, such a plea is baseless; and thirdly, the clubbing of stay {at one or more stations} is contrary to the Statutory Rule [SR 2(18)], whereby, the movement of a Government servant from one headquarter-station to another headquarter-station either to take up duties of new post or due to change of headquarter-station amounts to transfer; and fourthly, the clubbing of previous stay of the petitioner at one or nearby stations cannot give a leverage or a license to the respondents for issuing the impugned transfer orders when, in instant case, the impugned order was initiated and was founded on extraneous considerations, abuse of discretion, is perverse and arbitrary ; and fifthly, even, in case, the clubbing was based on a Government decision dated 27.10.2023 [taken on record] then also, this communication cannot operate dehors the mandate of Clause 10 of Transfer Policy issued on 10.7.2013 and dehors the object, spirit and mandate of Statutory Rule i.e. SR 2(18), whereby, the movement of a Government servant from one headquarter-station to another headquarter-station either to take up duties of new post or due to change of headquarter-station amounts to transfer; and lastly, when, communication dated 27.10.2023 cannot operate, in the instant case, once the impugned transfer orders had its genesis/origin from approval contained in U.O. Note dated 15.09.2023 of Private Secretary to Minister, which reached the department on 18.09.2023 (referred to in Para 5 above), then, the clubbing of previous stay, cannot be applied in case of the petitioner and moreover, when, the clubbing is dehors Clause 10 of the Transfer Policy and is dehors the Statutory Rule i.e. SR 2(18) as discussed above. Accordingly, the decision making process and the resultant transfer order (Annexure P-1), does not satisfy the test of judicial scrutiny, as the same suffers from factual and legal infirmities and therefore, the same cannot be permitted to operate, in the peculiar facts the instant case. Ordered accordingly. 7(iii). The contention of the Respondents-State Authorities in placing reliance on the judgements passed by the Hon’ble Supreme Court in the case of Rajendra Roy, National Hydroelectric Power Corporation, Anjan Sanyal in Para 5 of the reply affidavit is not in dispute. At the same time, the aforesaid judgements will not come to the aid and rescue of the respondents, as the same are distinguishable on facts as well as in law. Once the transfer, in view of discussion made above, is a result of colorable exercise of power, by ignoring the relevant consideration(s), just to fulfill the wishes and desires of an elected representatives as in this case, which is clear from records perused by this Court, then certainly the impugned order is malafide, arbitrary and unsustainable in law. 7(iv). The plea of Mr Anup Rattan, Learned Advocate General, that, the required stay of three years at the present station i.e. GMS Diara is about to be completed in May, 2024 cannot come to the rescue of the State Authorities, for the reason that once very genesis-origin was founded on extraneous considerations {based on approval given by Private Secretary to Minister on 15.9.2023 as in UO Note}, without there being any genuine, cogent and convincing material revealing public interest and administrative exigencies ; and this approval dated 15.9.2023 was acted upon by the Administrative - Transferring Authorities mechanically, without there being any whisper or discussion, by an impartial and independent application of mind to “relevant considerations” as to whether the alleged approval dated 15.9.2023, revealed genuine, cogent and convincing material revealing public interest and administrative exigencies and whether the transfer was necessitated or not then, in-absence of the fulfilment of these two pre-requirements, then the decision making process suffers from the vice of perversity, unreasonableness and arbitrariness and therefore, once the very foundation is bad in law {based on UO-D.O. Note, etc.} then all subsequent action shall ipso facto be bad on facts and in law. Mere likelihood of completion of tenure, will not give leverage or license to the State Authorities to resort to abuse its discretion, as in this case, which cannot be permitted in any manner. 7(v). One more aspect needs to be examined. Once the transfer was contrary to condition no 6 of transfer orders dated 31.10.2023 (Annexure P-1), for the reason, that once the incomplete stay of the petitioner (being less than three years at GMS Diara since May 2021) was not condoned then, once the decision making process was based on extraneous considerations or considerations not germane to the matter (UO-DO Note) then, the decision making process and the resultant orders is vitiated and is unsustainable. 7(vi) The impugned order dated 31.10.2023 (Annexure P-1), appears to have been issued on the request of the private respondent (being without TTA/JT) herself or by seeking the asylum or patronage of elected representatives, speaks volumes of violation of conduct rules by the private respondent having indulged/ resorted to invoking extraneous considerations for seeking her transfer/adjustment (on UO-DO Notes). That being so, the impugned order issued to give undue accommodation to the private respondent on extraneous considerations cannot be permitted to operate, being contrary to the mandate of Law laid down by the Honble Supreme Court of India in the case of B Vardhana Rao and the mandate of Law passed by the Division Bench of this Court in case of Navneesh Kumar vs. HPSEB (CWP No 644 of 2023).” 12(iv) Accordingly, once there is no genuine, cogent and convincing material revealing public interest or administrative exigency then, transfer based on extraneous circumstances and by ignoring relevant aspect i.e. short stay of one year, the transfer being on written recommendations/approvals which are without any foundation cannot sustain in the eyes of law. In the background of the mandate of law, referred to above, this Court on perusal of records, finds that the petitioner had made a request to the competent authority for transfer on 22.6.2023, which was approved by the competent authority (Hon’ble Chief Minister) on 28.6.2023, on which the order of transfer was issued on 29.8.2023 (Annexure P-2). In the background of the mandate of law, referred to above, this Court on perusal of records, finds that the petitioner had made a request to the competent authority for transfer on 22.6.2023, which was approved by the competent authority (Hon’ble Chief Minister) on 28.6.2023, on which the order of transfer was issued on 29.8.2023 (Annexure P-2). However, the departmental file, so produced before this Court today, reveals that after the issuance of transfer orders on 29.8.2023 (Annexure P-2), the matter was again taken up and on the direction of the OSD to Hon’ble Chief Minister (competent authority), the case was again moved for cancellation of orders leading to the issuance of impugned orders dated 26.9.2023 (Annexure P-4). Noticeably, the record so produced, reveals a very sorry state of affairs. The OSD to the Hon’ble Chief Minister, who is an extra -constitutional authority, having no role in the administration of the State, cannot make any such recommendation or direction. The record reveals that it is just to fulfill the wishes and desires of the OSD to Hon’ble Chief Minister that the cancellation order dated 26.9.2023 (Annexure P-4), was issued. Moreover, the case record, so produced, including the direction given by OSD on 28.8.2023, is also without any genuine, cogent and convincing material within public interest. Moreover, on his mere asking, the cancellation was processed and ordered. This decision making process, leading to issuance of the cancellation orders, by ignoring relevant aspects i.e. short stay and by ignoring fulfillment of twin pre-conditions of public interest and administrative exigency is absent, in the instant case which is verified by record. That being so, on this ground also, the cancellation orders dated 26.9.2023 (Annexure P-4) are quashed and set aside. 13. Now, coming to the question as to whether passed incumbency of the petitioner as well as private respondent shall have any effect on the cancellation order dated 26.9.2023 (Annexure P-4), is to be considered. Noticeably, the petitioner as well as private respondent have served, as per incumbency referred to in the reply as referred above. The past incumbency of the petitioner (Sh. Noticeably, the petitioner as well as private respondent have served, as per incumbency referred to in the reply as referred above. The past incumbency of the petitioner (Sh. Tara Chand) cannot be made the basis for cancelling the transfer orders dated 29.8.2023 (Annexure P-2) posting him at GSSS Mashobra on 26.9.2023 (Annexure P-4) on the basis of stand, now taken in the reply affidavit for the reason that once the State Authorities on request of the petitioner or otherwise had permitted the petitioner to remain at one, more or adjoining stations, then the respondents are estopped to taken such a plea. Moreover, the past incumbency cannot be of any defence for the State Authorities, including the private respondent to support the issuance of the cancellation orders, for the reason, that same is de hors the provisions of Clause 10 of the transfer policy which mandates that “stay of employee shall be three years at a station” . In this background also, the past incumbency cannot be taken into account for cancelling the transfer, which was made on acceptance of request of the petitioner and that too after joining of the petitioner at new place i.e. GSS Mashobra on the basis of Annexure P- 2 dated 29.8.2023 on 30.8.2023. 14. In addition to the above, on the date of issuance of cancellation order dated 26.9.2023 (Annexure P-4) there was no provision in the Policy, which permitted the clubbing of the previous stay of an employee [rendered at one or more places within a specified radius], cannot be of any assistance either to the State Authorities or the private respondent to plead for validity of the cancellation order dated 26.9.2023 (Annexure P-4). Accordingly, the plea of clubbing so taken by the State Authorities, including the private respondent, is not sustainable on facts as well as in law. 15. In view of the above discussion, the writ petition is allowed and the impugned order of cancellation dated 26.9.2023 (Annexure P-4), is quashed and set aside and respondents are directed to permit the petitioner to continue as Lecturer (School Cadre) Hindi, in pursuance of joining on 30.8.2023 in accordance with the policy as per law. 16. 15. In view of the above discussion, the writ petition is allowed and the impugned order of cancellation dated 26.9.2023 (Annexure P-4), is quashed and set aside and respondents are directed to permit the petitioner to continue as Lecturer (School Cadre) Hindi, in pursuance of joining on 30.8.2023 in accordance with the policy as per law. 16. However, in case, the private respondent has any hardship(s) as projected in para-4 of the preliminary submissions, the private respondent is free to make representation to the competent authority – Respondent No. 2, who shall consider/examine the same and pass appropriate orders in accordance with law expeditiously. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.