Himachal Pradesh High Court
Dot Ram Paharia vs State Of Himachal Pradesh And Others on 1 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 5914 of 2020
Decided on: 1st January, 2021
.
________________________________________________________
Dot Ram Paharia ....Petitioner
Versus
State of Himachal Pradesh and others
...Respondents
________________________________________________________
Coram
1 Whether
approved for reporting?
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
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For the petitioner: Mr. Sanjeev Bhushan, Senior
Advocate, with Mr. Rajesh
Kumar, Advocate.
For the respondents: Mr. Ashok Sharma, Advocate
General, with Mr. Vinod Thakur, Mr.
Vikas Rathor Additional Advocates
General, Ms. Seema Sharma, Mr.
Bhupinder Thakur and Mr. Yudhvir
Singh Thakur, Deputy Advocates
General, for respondents No. 1 & 2.
Mr. Vinod Chauhan, Advocate, for
respondent No.3.
Through Video Conferencing
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the order of transfer, petitioner 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 02/01/2021 20:15:32 :::HCHP -2-has filed the instant petition for grant of following substantive relief:-
.
"i) That appropriate writ order or direction may very kindly be issued and the impugned order dated 18.11.2020 (Annexure P-1) is liable to be quashed and set aside, with further direction to the respondents to allow the petitioner to perform his duties at Government Senior Secondary School Jaree, District Kullu, H.P., in the interest of law and justice."
2. It is not in dispute that the petitioner has been transferred on the basis of a D.O. note, therefore, transfer order is liable to be set aside on this ground alone, in view of the judgment rendered by this Court in CWP No. 801 of 2013, titled Sanjay Kumar versus State of H.P and ors. and the connected matters, decided on 5.07.2013.
3. However, at this stage, learned counsel for respondent No.3 would argue that since the petitioner has completed his normal tenure of service at the given station, therefore, the mere fact that transfer of the petitioner has been preempted or prompted by D.O. note would not furnish him a cause of action to assail the order of transfer. In support of his submissions, strong ::: Downloaded on - 02/01/2021 20:15:32 :::HCHP -3- reliance is placed on a judgment rendered by this Court in CWP No. 2026 of 2019, titled Kirpa Ram Vs State .
of H.P. and ors., decided on 21.11.2019, wherein vide para-2, it was observed as under:-
"It is not in dispute that the petitioner has completed his normal tenure of service at the given station. Therefore, the mere fact that the transfer of the petitioner has been preempted or prompted by D.O note would not furnish a cause of action to the petitioner to challenge the order of transfer when his tenure of service at the given station has already been completed."
4. Obviously, there can be no quarrel with the judgment aforesaid, but it needs to be noticed that after passing of the aforesaid direction, the entire world including our country and the State are facing COVID-19 pandemic. It is on account of this pandemic that the State Government itself has imposed a complete ban on general transfers vide order dated 23rd July, 2020 and thereafter vide notification dated 19th November, 2020.
5. Now, the transfers can be made only:-
(i) to fill up vacant posts in tribal/difficult/hard areas;
(ii) to fill up vacancies arising out of retirements, promotions and creation of new posts;::: Downloaded on - 02/01/2021 20:15:32 :::HCHP -4-
(iii) transfers necessitated on account of disciplinary matters, vigilance cases, criminal .
proceedings etc.;
(iv) in cases involving administrative grounds and exigencies.
6. The case of the petitioner does not fall under any one of the eventualities as contemplated above and, therefore, the order of transfer cannot be sustained and is liable to be set aside.
7. to Learned counsel for respondent No.3 would, however, contend that it is only on account of compelling circumstances that respondent No.3 was compelled to seek transfer. Even this contention is without any merit because in case respondent No.3 was facing certain personal difficulties, then he ought to have approached his employer, rather than procuring D.O. note, who thereafter was required to consider and decide such representation.
8. As regards, the personal hardship of respondent No.3, it is more than settled that the Courts are extremely slow to interfere directly in personal ::: Downloaded on - 02/01/2021 20:15:32 :::HCHP -5- hardship cases, the clear implication of the almost consistent directions given in the cases that the .
transferee could make a representation to the competent authority.
9. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Rajendra Roy vs. Union of India and Another (1993) 1 SCC 148, wherein it was observed as under:-
7. ......The appellant has not made by representation about personal hardship to the department. As such there was no occasion for the department to consider such representation.
This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonable expected that if such representation is made, the same should be considered by the department as expeditiously as practicable.
10. Consequently, the present petition is allowed and the impugned office order dated 18.11.2020 (Annexure P-1) is quashed and set aside. However, respondent No.3 is also permitted to make a representation and in case the same is made within two ::: Downloaded on - 02/01/2021 20:15:32 :::HCHP -6- weeks from today, respondents No.1 and 2 shall consider and decide the same within a period of four weeks .
thereafter. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
r to (Jyotsna Rewal Dua)
Judge
January 01,2021
(Gaurav)
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