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2024 DIGILAW 78 (HP)

Pradeep Kumar v. State of H. P.

2024-01-11

RANJAN SHARMA

body2024
JUDGMENT : RANJAN SHARMA, J. 1. Notice. Mr. Rajan Kahol, Additional 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 peculiar facts as borne out from the pleadings. 3. The petitioner has filed the instant writ petition with the following prayers: “(i) That a writ in the nature of mandamus may kindly be issued directing the respondents to consider and decide the representations dated 06/07.12.2023 and 20.12.2023 (Annexure P-1 & P-2) submitted through proper channel vide diary No. 2167 and 2221 respectively, when the petitioner has completed his normal tenure in tribal area at DAO Officer Kinnaur at Reckong Peo, District, Kinnaur, H.P. when the petitioner's daughter aged about 1½ years and the mother is suffering from medical ailments, in view of the fact that the petitioner has completed his normal tenure and has given 05 stations of his choice in 03 Districts & there is no one to look-after the family of the petitioner, in the interest of law and justice. (b) That the respondents may be directed to transfer the petitioner from DAO officer Kinnaur at Reckong Peo, Distinct Kinnaur, H.P. (tribal area) against any one of the station of his choice as mentioned in the representations, which reads as under: (i) DAO Office Bilaspur, District Bilaspur, H.P. (ii) Ayurvedic Hospital Bassi, District Bilaspur, H.P. (iii) DAO Office Hamirpur, District Hamirpur, H.P. (iv) District Ayurvedic Hospital Hamirpur, District Hamirpur, H.P. (v) SDAMO Office Sundernagar, District Mandi, H.P.” 4. In the background of the prayer so made, case of the petitioner is that petitioner is working as Junior Office Assistant (IT) in the office of District Ayush Officer, Kinnaur since 17.12.2020 which is a categorized tribal area in terms of existing transfer norms and policy. The petitioner though initially appointed on contract basis on 17.12.2020, was regularized by the respondents, at the same station. That being so, the petitioner had completed normal tenure two winters and three summers in the aforesaid tribal area and once the petitioner has completed the requisite service in the tribal area, therefore, the petitioner is eligible and entitled to be considered for posting at a soft area or station of choice in terms of Clauses 12, 15 and 16.1 of the Transfer Policy. In the background of the provisions of Clauses 12, 15 and 16.1 of the Transfer Policy, the petitioner is stated to have made a representation to the Director of Ayush, Shimla Himachl Pradesh on 20.12.2023 (Annexure P-2) indicating five stations of choice in terms of the mandate of clause 15(i) of the Transfer Policy. 5. Though, the representation has been made but the same has neither been considered nor any order whereof has been conveyed to the petitioner till date. 6. Per contra, Mr. Rajan Kahol, learned Additional Advocate General states that representation dated 20.12.2023 (Annexure-P2) is still pending therefore, the same shall be examined within a stipulated period. 7. In the entirety of the facts and circumstances referred to above, this Court disposed of the instant writ petition by directing the respondent No. 2- Director of Ayush, Himachal Pradesh, Shimla to consider/examine the representation dated 20.12.2023 (Annexure P-1) and then to pass appropriate orders, in the light of Clause 12, 15 and 16.1 of the Transfer Policy and the mandate of law in the case of Savita vs. State of Himachal Pradesh (Infra), after affording an opportunity of hearing to the petitioner within two weeks from today. 8. While deciding the matter/ claim of the petitioner, this Court hopes and trusts that the respondents shall take into account the mandate of the judgment passed by this Court, in CWP No. 8483 of 2023, titled as Savita vs. State of Himachal Pradesh and Another, decided on 4.11.2023, reads as under: “11. This Court cannot refrain itself from observing that Clauses 12 and 16 of the Transfer Policy issued by the Respondent, mandates the State Authorities Respondents to consider the cases of employees for posting “to” any station in the “Tribal-Hard Areas etc.” [referred to in Para 5 above] and “from” such areas to a “Soft Areas etc.” [referred to in Para 5 above] by adopting a continuous process of change so that all employees, who have not served in such areas even once, should be posted to such areas. This discretion is to be fairly and objectively exercised by sending employees to such areas (Tribal-Hard Areas etc.) who have never served in such areas, and secondly, an employee who had served earlier can be sent again to such areas, only if, either due to the cadre being small or due to the fact that available incumbents, [who have never send in such areas] fall in any of the concessional categories mandated in Clause 5 of the Transfer Policy are granted relaxation/exemption by the Competent Authority [under Clause 23 of Existing Norms/Policy] as to achieve the object of uniform and non discriminatory application of norms and principles governing transfers and to ensure fairness in the State action. 12. The object of Clauses 12 and 16 of the existing Transfer Policy is that benefit of posting “to” and “from” the Tribal/Hard Areas” to the “Soft Areas” and vice versa should be invariably and uniformly applied on rotational basis, to all concerned in a cadre primarily with the twin objective; firstly, the employees who have served in Tribal-Hard Areas earlier are not sent again to these areas; and secondly, to ensure that the employees who have never served in such areas or had enjoyed their leisure postings in soft areas endlessly either by manipulating mutual transfers or adjustments by invoking political patronage or otherwise either by soliciting favours, directly or indirectly, persons not connected with the affairs of the Respondent-State or by managing written recommendation based on a DO-UO Note reflects a very bad State of affairs, for quiet same time, which is acted upon either by the Competent Authority or by the administrative-transferring authorities, merely because a recommendation was given by a person not connected or even a recommendation given by a legislative-MLA or even the concerned Minister. Such recommendations cannot be acted upon automatically, unless and until such recommendation reveals and is founded on cogent material, justifying public interest and administrative exigencies either due to complaint etc. A recommendation by a legislator-MLA can only be acted upon, in case, it reveals public interest and administrative exigencies i.e. based on complaint etc. in terms of Clause 16 of the existing policy. A recommendation by a legislator-MLA can only be acted upon, in case, it reveals public interest and administrative exigencies i.e. based on complaint etc. in terms of Clause 16 of the existing policy. Action of resorting to transfer of an employee, on the mere asking of such persons, in absence of any material justifying public interest and administrative exigencies amounts to colorable exercise of power leading to arbitrariness in state action, by violating its own norms and principle governing transfers, is deprecated. The transfer of an employee shall accrue, in case, it is based on a proposal, from the administrative transferring authority, justifying public interest and administrative exigencies, on cogent material and then is approved by the Competent Authority. Any reverse action, flowing from top to bottom [competent authorities to administrative transferring authority] without any cogent material indicating public interest and administrative exigencies gives rise to unfairness and arbitrariness and exercise of discretion in a discriminatory manner, by ignoring its own norms, leading to perversity cannot be permitted, when, the administrative transferring authority, Head of Department is the best person to adjudge the necessity of transferring or not to transfer an employee in public interest and administrative exigencies. Even, an employee who manages transfers, on extraneous considerations i.e. written recommendations of persons not connected with the affairs of state or even a legislator are equally at fault, when, it is trite law, that an employee who seeks a transfer or cancellation/modification etc. should approach the authorities in the department, who are bound to consider such request and redress the same, within a reasonable time. It is seen that despite requests by an employee, the administrative-transfer authorities sit over the matter, compelling such employees to approach Courts or due to in action to seek asylum by way of recommendations. In this background, to ensure fairness in state action, this Court mandates that on receipt of any request/representation for transfer or against transfer the administrative transferring authority are mandated to examine the same in the light of applicable norms. In the aforesaid backdrop, this Court hopes and trusts that the Respondents redress the grievances-representation made by an employee for or against transfers expeditiously, not later than two weeks from receipt thereof, so as to ensure expeditious redressal and fairness in state action. 13. In the aforesaid backdrop, this Court hopes and trusts that the Respondents redress the grievances-representation made by an employee for or against transfers expeditiously, not later than two weeks from receipt thereof, so as to ensure expeditious redressal and fairness in state action. 13. Another aspect needs to examined is that after completion of normal tenure of two winters and three summers in the Difficult-Tribal Areas referred to in Clause 16 of the existing Norms governing Transfers, the respondents have retained such incumbents in these areas either by prolonging their stay in the Tribal/Hard Areas, adds and aggravates the unfairness, arbitrariness and discrimination in state action, by ignoring Clause 12 and 16 of its own Policy. The action of the respondents in prolonging the stay in Tribal-Hard Areas despite completion of normal tenure of two winters and three summers, as mandated by the Policy, by neither seeking an option nor considering an employee for posting to a station in the ‘Soft Area’ is deprecated by this Court. The respondents-State Authorities cannot ignore the mandate of the law. The respondents cannot ignore uniform and equal application of these norms when, these norms were primarily incorporated in the existing policy keeping in view the mandate of the judgment passed by this Court in CWP No. 1105 of 2006, titled as Sushila Sharma vs. State of Himachal Pradesh.” 9. In aforesaid terms, the writ petition as well as the pending miscellaneous applications, if any, shall also stand disposed of, accordingly.