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2024 DIGILAW 113 (HP)

Vikas Sharma v. State of H. P.

2024-02-15

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Arsh Rattan, learned Deputy 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:- “(a) Writ of Certiorari may kindly be issued for quashing and setting the impugned transfer order dated 29.01.2024 qua petitioner whereby, the petitioner has been ordered to be transferred from HP Police Training College, Daroh to HP Private Educational Institutions Regulatory Commission Shimla as the same is violate of Para 2.1 of Transfer Police-2013 which has been framed for regulating the transfer and posting of Govt. officers and officials under HP (b) That if the respondent department finds unavoidable merit in adjustment of private respondent in District Kangra, the same may be ordered to be made against the officer having longer stay than the petitioner upholding the law of natural justice. (c) That the respondents may kindly be directed to permit the petitioner to perform his duties at present place of posting i.e. HP Police Training College, Daroh till completion of normal tenure and as per the transfer policy. Alternatively, he may be ordered to be adjusted against the officer having longer tenure in District Kangra taking into consideration the previous postings of petitioner.” 4. The case of the petitioner in brief is that he is Assistant Controller in the Department of Himachal Pradesh Police Training College, Daroh. Admittedly, the petitioner is a Class-I Officer and the prescription of minimum tenure of three years as prescribed for other employees is not applicable to the Class-I Officer in terms of Clause 10 of the Transfer Policy. 5. The petitioner has assailed the Notification dated 29.01.2024 [Annexure P/1], transferring the petitioner from Police Training College, Daroh, District Kangra [H.P.] to H.P. Private Educational Institutions Regulatory Commission, Shimla, against a vacant post. In view of the provisions of Clause 10 of the Transfer Policy, as referred to above, this Court is not inclined to interfere, in the Notification dated 29.01.2024 [Annexure P/1], qua the petitioner, as the petitioner cannot claim a right, de-hors the existing Transfer Policy/Norms. 6. In view of the provisions of Clause 10 of the Transfer Policy, as referred to above, this Court is not inclined to interfere, in the Notification dated 29.01.2024 [Annexure P/1], qua the petitioner, as the petitioner cannot claim a right, de-hors the existing Transfer Policy/Norms. 6. However, the learned counsel for the petitioner has placed reliance on Clause 2.1 of the Transfer Policy in Para-6 of the writ petition, to gain strength that private respondent [Lata Mangesh] was promoted from the post of Section Officer to Assistant Controller and therefore, as per Clause 2.1 of the Transfer Policy, the aforesaid private respondent should have been adjusted against vacant post only. This plea of the petitioner is without merit, for the reason, that Clause 2.1 of the Transfer Policy permits the posting or promotion against a vacant post during the non-transfer period i.e., during the period of ban on general transfers. However, the transfer policy at the same time, enables the competent authority [Hon’ble Chief Minister], to relax any provision of the transfer policy, therefore, Learned State Counsel submits that the Notification dated 29.01.2024 [Annexure P/1] has been issued by relaxation and therefore, the challenge, by the petitioner, to the posting of private respondent is without force. 7. In addition to this, it is submitted that the post of Assistant Controller is a State Cadre Post. An Officer who is promoted to the post of Assistant Controller, under the Recruitment and Promotion Rules, issued under Article 309 of the Constitution of India, is liable to be posted anywhere throughout the State. In this background, the reliance on Clause 2.1 of the Transfer Policy, is of no assistance to the petitioner for the reason that the Rules conferring benefit of promotion, including the liability to be posted anywhere throughout the State under the Recruitment and Promotion Rules of Assistant Controller, issued under Article 309 of the Constitution of India, will have overriding over the transfer guidelines, including Clause 2.1 of the transfer policy, referred to above. On this ground also, the petitioner has no case and the Notification of transfer dated 29.01.2024 [Annexure P/1] is upheld, qua the petitioner as well as private respondent. 8. At this stage, learned counsel for the petitioner submits that the petitioner has certain other hardships for which, the petitioner has made a representation dated 06.02.2024 [Annexure P/3], pointing out hardships. On this ground also, the petitioner has no case and the Notification of transfer dated 29.01.2024 [Annexure P/1] is upheld, qua the petitioner as well as private respondent. 8. At this stage, learned counsel for the petitioner submits that the petitioner has certain other hardships for which, the petitioner has made a representation dated 06.02.2024 [Annexure P/3], pointing out hardships. He further submits that the petitioner shall be satisfied, in case, respondent No.1-Principal Secretary [Finance] to the Government of Himachal Pradesh, is directed to consider the representation dated 06.02.2024 [Annexure P/3], within stipulated period. The aforesaid prayer being innocuous, is not opposed, by the learned State Counsel also, in view of the fact that it is a trite law that in case an employee has any hardships, the same are to be considered and redressed by the Administrative Authorities subject to public interest and administrative exigencies, as far as possible, in terms of the mandate in case of Shilpi Bose (Mrs.) and others versus State of Bihar and others, 1991 Supp (2) SCC 659 and the mandate of law passed by the Hon’ble Supreme Court, in the case of State of U.P. and others versus Gobardhan Lal, (2004) 11 SCC 402 mandated that representation so made, for redressal of the hardships, shall be examined/considered. 9. Accordingly, as prayed for, this Court directs respondent No.1-Principal Secretary [Finance] to the Government of Himachal Pradesh, to consider the representation dated 06.02.2024 [Annexure P/3] alongwith supplementary representation, if any, and to pass appropriate orders in the matter, within a week from today. Till the decision of the representation, as aforesaid, the respondents shall not compel the petitioner to join the transferred station [i.e. H.P. Private Educational Institutions Regulatory Commission, Shimla]. In the aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.