Himachal Pradesh High Court
Ashwani Kumar vs State Of H.P. & Another on 3 January, 2020
Bench: Dharam Chand Chaudhary, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No.4247 of 2019.
Decided on: 3rd January, 2020.
Ashwani Kumar ......Petitioner.
Versus State of H.P. & Another ....Respondents.
Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Sanjeev Bhushan, Senior Advocate with Mrs. Abhilasha Kaundal, Advocate.
For the respondents : Mr. Yudhvir Singh Thakur, Dy.
A.G. for respondent No.1.
Dharam Chand Chaudhary, J. (oral).
The petitioner is working as Assistant Engineer and presently posted as such in I & PH Sub Division Larji, Division Shamshi, District Kullu, H.P. He has now been ordered to be transferred to I & PH Division Sunder Nagar, District Mandi, H.P., vide impugned order Annexure P-1.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 07/01/2020 20:25:27 :::HCHP 22. The complaint is that the transfer of the .
petitioner has been ordered on the basis of a D.O. note. It is keeping in view such averments, following order came to be passed in this writ petition on 17.12.2019:-
" Notice. Mr. Narinder Guleria, learned Additional Advocate General appears and accepts service of notice on behalf of respondents No. 1. Dasti notice to respondent No.2 for 03.01.2020, on taking steps within two days.
The petitioner on his promotion as Assistant Engineer was transferred and posted as such in I&PH Division Shamshi, District Kullu. The complaint is that well before the completion of his normal tenure, he has now been transferred from his present place of posting to I&PH Division, Sundernagar on the basis of a D.O. note. Being so, respondent No.1 is directed to produce the entire record leading to the transfer of the petitioner vide impugned order, Annexure P-1 on the date fixed.
In the meanwhile, status quo as on today qua the transfer and posting of the petitioner shall be maintained."::: Downloaded on - 07/01/2020 20:25:27 :::HCHP 3
3. Consequently, learned Deputy Advocate .
General has produced the record. The averments in the writ petition that the petitioner has been transferred on D.O. note find support from the records as it is the office of the Chief Minister which has recommended his transfer from the present place of posting by way of such note. Learned Deputy Advocate General has pointed out from the record that the petitioner, is also the beneficiary of D.O. Note. No doubt, D.O. Note No.Secy/CM-
17024/2017-VIP-B-184462, dated 20.11.2019, gives an impression that the petitioner is recipient thereof, however, on the record, his representation dated 16.11.2019 is also available and as per the same a request was made by him to the first respondent not to disturb him in view of his wife is posted at Bajaura and his daughter is also studying there. The D.O. Note and the representation of the petitioner have been dealt with together vide notes 121-122 on 26/27.11.2019. While the representation ::: Downloaded on - 07/01/2020 20:25:27 :::HCHP 4 made by the petitioner is ignored, at the same .
time, he has been ordered to be transferred on the basis of D.O. Note. Therefore, the transfer of the petitioner has been issued on the basis of the D.O. Note.
4. True it is that this Court in Sanjay Kumar vs. State of Himachal Pradesh and others, 2013(3) Shimla Law Cases 1373 and also Amir Chand vs. State of Himachal Pradesh 2013(2) Him. L.R. 648 and in its recent judgment rendered in CWP No.2490 of 2019, titled Dalip Singh versus State of H.P. & Others has held that the Chief Minister and Ministers/elected representatives may recommend the transfer of an employee, however, the transfer order has ultimately to be issued by the Administrative Head on application of mind and uninfluenced by the recommendations so made by the elected representative. In the case in hand, the competent authority, respondent No.1 has not examined the ::: Downloaded on - 07/01/2020 20:25:27 :::HCHP 5 desirability of the transfer of the petitioner in terms .
of the transfer policy and also as to whether his transfer would be in the larger public interest and rather transferred the petitioner from his present place of posting, merely on the basis of recommendations made by political executive. The impugned order, Annexure P-1, as such, is not legally sustainable. The same is accordingly set aside, leaving it open to respondent No.1 to transfer the petitioner, if required, in accordance with law and also the transfer policy.
5. The writ petition is accordingly disposed of, so also the pending application(s), if any.
(Dharam Chand Chaudhary) Judge.
(Anoop Chitkara) Judge.
January 03, 2020 (ps)
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