Himachal Pradesh High Court
John Gupta vs State Of H.P. And Others on 22 July, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 1924 of 2020
.
Reserved on: 16.07.2020
Decided on: 22.07.2020
John Gupta ...Petitioner.
Versus
State of H.P. and others ...Respondents.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Onkar Jairath and Mr. Shubham Sood,
Advocates.
For the Respondents: Mr. Ashok Sharma, Advocate General, with
Mr. Ranjan Sharma, Mr. Vinod Thakur and
Mr. Desh Raj Thakur, Additional Advocate
Generals, for respondents No.1 to 3.
None for respondent No.4.
_________________________________________________________
Justice Tarlok Singh Chauhan, J.
It appears that the petitioner has not learnt his lessons well and mended his ways despite the strictures passed against him by this Court in an earlier writ petition being CWP No.1678 of 2013 titled Johan Gupta vs. State of H.P. and others, decided on 29th April, 2013. Like in the present case therein also the petitioner had assailed his transfer order and this 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 2 Court after coming down heavily upon the petitioner, vide its order dated 29.4.2013 made the following .
castigating observations against him in the judgment:
"2. We find that both the petitioner and respondent No.3 are clogs in the wheel of the administration and each of them wants to remain at a place of his choice...."
2. The incumbency of the petitioner who is currently working as Senior Assistant is as under:
Name From To Station
29.07.94 31.03.02 Karsog Division
01.04.02 30.04.03 Rampur Division
01.05.03 31.07.08 Karsog Division
Sh. John Gupta 01.08.08 31.07.09 Mech.Divn.Rampur
D.o.B26.07.72 01.08.09 31.03.13 Karsog Divn.
D.o.A.29.07.94 01.04.13 22.08.14 EinC Shimla.
23.08.14 to Date Karsog Divn U/T
to Bharmour
Divn. on order
dated 11.07.19.
3. It would be noticed that despite the
aforesaid judgment of this Court, the petitioner
remained posted outside the Karsog only for about one year four months i.e. 01.04.2013 to 22.08.2014 and thereafter again came to be posted at Karsog.
4. This clearly establishes the clout being exercised by the petitioner. Our conclusion is further ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 3 fortified from the fact that even after rejection of CWP No. 1678 of 2013 the petitioner still managed to get .
himself transferred back to Karsog after having been remained in Shimla for a brief period and is serving at Karsog Division for the last about six years back from 23.08.2014 and was then vide order dated 11.07.2019 ordered to be transferred to Bharmour Division.
5. rThe petitioner assailed this order before the erstwhile H.P. State Administrative Tribunal by filing Original Application No. 2894 of 2019 and the same was disposed of vide order dated 15.07.2019 by directing the petitioner to file a comprehensive representation for cancellation of his transfer or suitable adjustment with his employer.
6. In compliance to the directions of the Tribunal, the petitioner was called for hearing by the 2 nd respondent. The record reveals that during the course of hearing, the petitioner submitted his request for cancellation of his transfer dated 17.07.2019 wherein he prayed that he be permitted to be retained at B & R Division, HPPWD Karsog atleast till the academic session of his daughter is not over.
::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 47. The record further reveals that 2 nd respondent after taking into consideration the hardship .
of the petitioner directed his retainment at Karsog upto April 2019 by making the following endorsement "May retain upto April, 2019." The year '2019' appears to have been wrongly written and essentially will have to be read as '2020' as this note itself was appended on 21.08.2019.
8. The matter thereafter was placed before the Registrar for compliance, who directed the preparation of speaking order. Record reveals that the speaking order in fact was prepared but has not been signed. The speaking order in nature of memorandum reads as under: "HIMACHAL PRADESH PUBLIC WORKS DEPARTMENT MEMORANDUM Whereas Sh. John Gupta, Sr. Asstt. while posted in HPPWD Divn. Karsog was transferred to HPPWD Bharmour Divn. vide office order No.PWE79 ISr.Asstt. Tr.19/ESI714955 dated 11.07.2019 with the prior approval of the competent authority at Govt. level. Feeling aggrieved against this order Sh. John Gupta, Sr. Asstt. filed an O.A. No.2894/2019 before the Hon'ble Tribunal which was listed on dated 15.07.2019 and finally decided with the following directions: ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 5 "4. In the facts and circumstances, the original application is disposed of with a direction that the applicant may file a .
comprehensive representation for cancellation of his transfer or suitable adjustment alongwith certified copy of this order to 2nd respondent within two days. 2nd respondent shall decide the same after affording an opportunity of being heard to the applicant, if so desired by 23rd July, 2019. The further action, pursuant to office order dated 11.07.2019, Annexure A1, in case the applicant has not been relieved as on 12th July, 2019, shall stand deferred till decision of the representation.
5. Pending miscellaneous application(s), if any, shall also stand disposed of."
And whereas upon the receipt of these orders and in compliance to the directions passed by the Hon'ble Tribunal, the applicant Sh. John Gupta, Sr. Asstt. was summoned for personal hearing on 17.08.2019. On the date fixed, the applicant attend the hearing in person and made his oral as well as written statement. In his statement, the applicant has requested to cancel his transfer order or if it is not possible to cancel his transfer order, he may be retained in HPPWD Karsog Divn. till the completion of academic session of his daughter till April, 2020.
Although complete incumbency of Sh. John Gupta, Sr. Asstt. Is given as under:
Name From To Station
29.07.94 31.03.02 Karsog Division
01.04.02 30.04.03 Rampur Division
01.05.03 31.07.08 Karsog Division
Sh. John 01.08.08 31.07.09 Mech.Divn.Rampu
Gupta 01.08.09 31.03.13 r
D.o.B26.07.72 01.04.13 22.08.14 Karsog Divn.
D.o.A.29.07.94 EinC Shimla.
23.08.14 to Date Karsog Divn U/T
to Bharmour
Divn. on order
dated 11.07.19.
::: Downloaded on - 22/07/2020 20:22:04 :::HCHP
6
Now, in view of the above depicted position and in the light of totality of facts and circumstances stated .
above, the representation of Sh. John Gupta, Sr. Asstt.
is hereby considered and accepted. Accordingly, Sh. John Gupta, Sr. Asstt. is hereby retained in HPPWD Karsog Divn. upto 30.04.2020 i.e. till the academic session of his children. The official shall join his duties in HPPWD Bharmour Divn. after expiry of the said period.
May inform the applicant accordingly. Regd.
Sh. John Gupta (Er. R.K.Verma)
S/o Sh.Bhagat Ram Gupta, EngineerinChief,
R/o Village and Post Office HPPWD, Shimla2.
Karsog, Tehsil Karsog,
Distt. Mandi.
No.PWE79ISr.Asstt.Tr.19/ESI Dated:
Copy is forwarded to the following:
1. The Chief Engineer, HPPWD Mandi Zone, Mandi.
2.The Chief Engineer, HPPWD Kangra Zone at Dharamshala.
3. The Superintending Engineer, HPPWD 1st Circle, Mandi.
4. The Superintending Engineer, HPPWD 7th Circle, Dalhousie.
5. The Executive Engineer, HPPWD Divn. Karsog Divn.
6. The Executive Engineer, HPPWD Divn. Bharmour Divn.
7. Guard File.
(Brinder Singh Chauhan) Registrar, HPPWD, Shimla2."
9. The learned Advocate General on instructions from the Department states that the speaking order by way of memorandum that was prepared was never put up before the competent authority by the then Superintendent GradeI, who has ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 7 now retired in May, 2020 and resultantly the petitioner continued to serve at Karsog till today, even though, he .
could have at best be retained at Karsog upto April, 2020.
10. In such circumstances, we cannot be oblivious to the fact that since the speaking order (memorandum) pertained only to the petitioner, therefore, it could be possible that the petitioner alongwith concerned Superintendent could be responsible for concealing the memorandum. However, we cannot jump to any conclusion and would leave it to the investigation to be conducted by directing the respondents to lodge an FIR against the petitioner and concerned Superintendent with Police Station, Shimla.
11. It is vehemently urged by Mr. Onkar Jairath, learned counsel for the petitioner that the transfer has not been effected in administrative exigency or public interest, but on the basis of the D.O. Note issued by 4 th respondent, who is sitting MLA of Karsog Constituency, therefore, the transfer has vitiated as has been held by this Court in its decision rendered in CWP No. 801 of ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 8 2013 titled Sanjay Kumar vs. State of H.P. and others alongwith connected matters, decided on 05.07.2013.
.
12. At first blush, the submission appears to be attractive, but bearing in mind the conduct of the petitioner such plea is not available to him. Once the order of transfer to be effected vide memorandum is conveniently suppressed and thereafter is not made to see the light of the day for nearly ten months, then obviously someone has to intervene. If it was not for the D.O. Note, the respondents would not have even come to know about the order passed by the 2nd respondent (supra) and the suppression of the speaking order (memorandum) prepared pursuant to such order.
13. Further, the transfer of the petitioner on the recommendation of the MLA in the given facts and circumstances by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 9 no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on .
the facts and circumstances of an individual case. This was so held by the Hon'ble Supreme Court in Mohd.
Masood Ahmad vs. State of U.P. and others (2007) 8 SCC 150, wherein it was observed as under:
"8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counteraffidavit filed on behalf of respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself itself would not violate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order."::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 10
14. Though a recommendation by a peoples .
representative requesting for a particular course of action in the realm of administrative functioning may not per se constitute an unauthorized or unwarranted interference or cause vitiation provided the consequential steps are taken by the authority of administration alone, the nature of action then to be drawn by the administrative department would be contingent on the attending facts. It is only when the contextual facts demonstrate servile subjugation of a administrative authority to the dictates of an outside entity in power by meekly abdicating his dominion, the resultant order or decision would be impeachable as antithetical to the foundational precepts of governmental functioning. The facts and circumstances of each case will therefore have to be evaluated.
15. In addition to the aforesaid, we find that there are no specific allegation of malafide against the 4th respondent even though he has been made a party by name.
::: Downloaded on - 22/07/2020 20:22:04 :::HCHP 1116. In view of the aforesaid discussion, we find no merit in this case but find it to be a fit case where .
criminal case deserves to be lodged against the petitioner as also the then Superintendent GradeI in relation to the speaking order (memorandum). The third respondent is directed to take all necessary steps in this regard within a period of four weeks from the receipt of a copy of this judgment and the SHO, Police Station, Shimla is directed to take all necessary consequential action and take the investigation to its logical end uninfluenced by any observations made hereinabove. The official respondents shall also ensure that the petitioner is not transferred back to any other station before the completion of his normal tenure of service at Bharmour Division.
17. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 22 nd July, 2020. Judge (GR) ::: Downloaded on - 22/07/2020 20:22:04 :::HCHP