Himachal Pradesh High Court
Yash Pal vs State Of H.P And Others on 23 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2500 of 2020 a/w
CWP No. 3278 of 2020
Reserved on : 21.09.2020
.
Date of decision: 23.09.2020
1. CWP No. 2500 of 2020
Yash Pal ...Petitioner
Versus
State of H.P and others ...Respondents
2. CWP No.3278 of 2020
Lekh Raj
State of H.P and others
r to Versus
...Respondents
______________________________________________________
Coram:
...Petitioner
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioners: Mr. Sanjeev Bhushan, Senior Advocate,
with Mr. Rajesh Kumar, Advocate, in
CWP No. 2500 of 2020.
Mr. Narender Sharma, Advocate, for the
petitioner in CWP No.3278 of 2020 and
for the respondent in CWP No. 2500 of
2020.
Mr. Surinder Verma, Advocate, for
respondent No. 4 in CWPNo. 2500 of
2020.
For the Respondents: Mr. Ashok Sharma, Advocate General,
with Mr. Ranajan Sharma, Mr. Vinod
Thakur, Mr. Desh Raj Thakur, Additional
Advocate Generals, Ms. Seema Sharma
Deputy Advocate General.
1
Whether Reporters of local newspaper are permitted to see the judgment ?
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Jyotsna Rewal Dua,J.
Transfer order dated 16.07.2020 is involved in both these writ petitions. CWP No. 2500 of 2020 has been filed .
challenging this order, whereas CWP No.3278 of 2020 seeks its implementation.
2. For convenience, facts from CWP No. 2500 of 2020 are being referred to hereinafter.
3. Order dated 16.07.2020 effected transfer of respondent No. 3 (Lekh Raj) and respondent No. 4 (Jitender), inter alia, also affecting the petitioner (Yash Pal). All the three private parties i.e. petitioner, respondents No. 3 and 4 are serving as lecturers in the respondent-Education Department.
4. Vide order dated 16.07.2020, Lekh Raj respondent No. 3 was transferred from GSSS Koti (Sml) to GSSS Chhota Shimla. To make way for him, petitioner (Yash Pal) was transferred from GSSS Chhota Shimla to GSSS Dubloo (Sml). To make way for Yash Pal, Jitender (respondent No. 4) was transferred from GSSS Dubloo (Sml) to GSSS Koti (Sml).
5. Petitioner, Yash Pal has challenged this triangular transfer order on the ground that the order was issued on the basis of a D.O. Note. It has not been approved by the Competent Authority. Petitioner is facing adverse family circumstances ::: Downloaded on - 23/09/2020 20:19:41 :::HCHP 3 inasmuch as his son is studying in 12th standard and transfer has been effected in the middle of the academic session.
An interim order was passed by this Court on .
20.07.2020 in CWP No. 2500 of 2020 staying the impugned transfer order, pursuant to which the respondents issued office order dated 21.08.2020 relieving Lekh Raj from his transferred place i.e. GSSS Chhota Shimla and shifted him back to his original place at GSSS Koti (Sml). Lekh Raj has filed CWP No. 3278 of 2020 challenging the office order dated 21.08.2020, in essence seeking implementation of the transfer order dated 16.07.2020.
Respondent No. 4 (Jitender) has also contested the allegations and assertions made in CWP No. 2500 of 2020 and has also sought implementation of transfer order dated 16.07.2020.
6. Respondents No. 1 and 2 have placed on record the written instructions imparted to learned Advocate General to the effect that impugned transfer order was issued with the prior approval of the Competent Authority and has also made available the following incumbency position of all the three concerned private individuals:-
"Petitioner Name Yash Pal Lecturer Maths.
DOB 23.04.1973
Home Distt. Shimla
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Sr. No. Place Posting Period
1. GSSS Durgapur (SML) 01.04.2010 to
22.08.2012
2. GSSS Totu (SML) 23.08.2012 to
10.02.2015
3. GSSS Durgapur (SML) 10.02.2015 to
13.06.2017
.
4. GSSS Chhota Shimla (SML) 13.06.2017 and
under transfer
to GSSS
Dubloo,
Shimla
Respondent No. 3
Name Lekh Raj
Lecturer Maths.
DOB 14.08.1970
Home Distt. Shimla
Sr. No. Place Posting Period
1. GSSS Suni (SML) 05.04.2010 to
16.04.2013
2. GSSS Sarog (SML) 16.04.2013 to
11.02.2016
3.
GSSS Mashobra (SML) 11.02.2016 to
08.07.2019
4. GSSS Koti (SML) 09.07.2019 till
date
Respondent No. 4
Name Jitender
Lecturer Maths.
DOB 23.06.1976
Home Distt. Shimla
Sr. No. Place Posting Period
1. GSSS Janedghat (SML) 23.07.2009 to
11.08.2011
(TGT NM)
2. GHS Padehi (SML) 11.08.2011 to
09.09.2015
(TGT NM)
3. GMS Pendli u/c GSSS Junga (SML) 09.09.2015 to
06.12.2018
4. GSSS Dubloo (SML) 07.12.2018 till
date
"
7. A perusal of the transfer order dated 16.07.2020 and the incumbency position extracted above reveals that three employees involved herein have managed to remain posted in and ::: Downloaded on - 23/09/2020 20:19:41 :::HCHP 5 around District Shimla throughout. In a somewhat similar factual position, this Court in CWP No. 511 of 2020, titled as Sheela Suryavanshi Vs. State of H.P. and others, decided on 12th .
August, 2020, held as under :-
"18. Off late, this Court has seen a surge in litigation relating to transfer. The State of Himachal unlike other States is not evenly or uniformly developed in matters of basic infrastructure like education, health services etc. It is for this reason and rightly so that every employee tries to make an endeavour to seek posting in the district or tehsil headquarters where the infrastructure is relatively well developed. This we observe on the basis of the statistics relating to Shimla alone, where floating population is equal to permanent population. Most of these migration in urban areas is directly related with education of children and thereafter it could be for other purposes like better health facilities etc.
19. We further notice that because of cartel created by few of the employees serving in the urban and semi urban areas of Himachal Pradesh, the influential employees manage to secure their postings in and around urban areas, leaving practically no room for the other employees.
20. The instant case is one such classical example, which reflects the modus operandi being resorted to by these teachers on completion of their tenure by seeking mutual transfer or creating artificial vacancies and thereafter getting each one adjusted in such vacancies.
21. It cannot be ignored that not only the State or Country but the whole world is in the grip of pandemic COVID-19, because of which students cannot be taught physically in the class rooms and are being taught through online classes.
22. In such circumstances, the respondents are not only duty bound but are mandated by law to ensure that no monopoly in the matters of transfers is created in favour of selected fews but an endeavour has to be made to accommodate maximum number of teachers whose children are appearing for the board examination or examination for professional courses. These students can only study and attend classes on line if there is adequate and desired band-width. Even otherwise the facilities of tuition and coaching classes on online are mainly available in these places i.e. the district and tehsil headquarters, therefore, also the State is required to adopt a fair and transparent policy of transfer by calling for the details of all the teachers whose children are to appear in the Board exam or examination for professional courses like MBBS, AIEEE etc. This would not only bring about an end to the monopoly created in favour of few teachers but would also ensure benefit to the student community as a whole.::: Downloaded on - 23/09/2020 20:19:41 :::HCHP 6
23. The Central Government, State Governments and likewise all public sector undertakings are expected to function like a 'model employer'. A model employer is under an obligation to conduct itself with high probity and expected condour and the employer, who is duty bound to act as a model employer has obligation to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model .
employer should not exploit the employees and take advantage of their helpless and misery.
24. The action of the State must be reasonable, fair, just and transparent and not arbitrary, fanciful or unjust. The right of fair treatment is an essential ingredient of justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom, than of man's other inventions. Absolute discretion marks the beginning of the end of the liberty.
25. It was observed by Wades Administrative Laws, 5th Edition at page 347 that "The first requirement is the recognition that all powers have legal limits, the next requirement, no less vital, is that the Court should draw this limit in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Parliament consistently confers upon public authorities powers which on their face seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the Courts refuse to countenance. They have woven a net-work of restrictive principles which require statutory powers to be reasonable and in good faith and in accordance with the spirit and letter of the empowering Act." At page 359, it was also observed that "Discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That amounts at least to this that the statutory body must be guided by relevant consideration and not irrelevant. If its decision is influenced by extraneous consideration which ought not have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless, the decision will be set- aside."
26. Here, it shall be apposite to make a reference to the judgment of the Hon'ble Supreme Court in New India Public School vs. Huda (1996) 5 SCC 510, wherein it was observed that when public authority discharges its public duty, it has to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary and the same cannot be acted at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration.
27. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution ::: Downloaded on - 23/09/2020 20:19:41 :::HCHP 7 accords right to an equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably. Right to fair treatment is an essential inbuilt of natural justice.
28. As observed above, exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no .
wrong provided it is exercised purposively, judiciously and without prejudice.
29. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16 of the Constitution. It also means that the State should not exploit its employees nor should it seek to take advantage of their helplessness and misery. As is often said, the State must be a 'model employer'."
The factual position of the instant case is no less dis-
similar to the one in which the above extracted principles of law were expounded by this Court. In the instant case also, all the three private parties are serving as lecturers, which is a State cadre.
They are liable to be posted anywhere in the State, yet w.e.f. 2009- 2010 all these three lecturers have managed to remain posted in District Shimla. Shimla is the Home District of all these three employees and as such they are apparently desirous for serving in and around Shimla. In Sheela Suryavanshi's case (supra), it was held as under :-
"39. Granting indulgence to any of the parties in this case would be causing manifest injustice to other teachers who are desirous of serving in Shimla and other district and tehsil headquarters but have failed mainly because of the cartel formed by the influential teachers like the parties in the instant case. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
43. Before parting, we hope and trust that the respondents would take all requisite steps to break the cartel and as far as possible ensure that maximum number of teachers, especially those whose children are to appear in the Board examination ::: Downloaded on - 23/09/2020 20:19:41 :::HCHP 8 and examination for professional courses are afforded an opportunity to serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate band width, facility of tuition etc. are available."
10. Therefore, against the backdrop of observations made .
in Sheela Suryavanshi's case (supra) and in the given facts and circumstances of the case, we dispose of these writ petitions by directing respondents No. 1 and 2 to transfer the petitioner as also respondents No. 3 and 4 outside their home District within a period of two weeks from today. Pending applications, if any, also stand disposed of.
List for compliance on 14th October, 2020.
( Tarlok Singh Chauhan ), Judge 23rd September, 2020(K) ( Jyotsna Rewal Dua), Judge ::: Downloaded on - 23/09/2020 20:19:41 :::HCHP