Himachal Pradesh High Court
Satyawan Mehta vs State Of Himachal Pradesh & Others on 28 October, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3124 of 2020 Reserved on: 15.10.2020 Decided on: 28.10.2020 .
_____________________________________________________________________ Satyawan Mehta ....Petitioner.
Versus State of Himachal Pradesh & others. ...Respondents. Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. C.D. Negi, Advocate.
For respondents No. 1 & 2: Mr. Ashwani Sharma, Additional
Advocate General, with Mr. J.S.
r Guleria, Deputy Advocate General.
For respondent No. 3: Mr. Baldev Negi, Advocate.
_____________________________________________________________________ Chander Bhusan Barowalia, Judge By medium of the extant writ petition, the petitioner is seeking the following substantive relief:
"Appropriate writ order or direction may very kindly be issued and the impugned order dated 20.08.2020 (Annexure P-1) is liable to be quashed and set aside, by further directing the respondents to allow the petitioner to perform his duties at Kinnaur Forest Division at Reckong Peo, in the interest of law and justice."
2. Tersely, the fact of the case, as encapsulated in the writ petition, are that in the year 1986 the petitioner, on his appointment as Clerk, given posting in the office of Division Forest Office Kotgarh and in 1989 he was transferred to Division Forest Office Nichar, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 28/10/2020 20:19:18 :::HCHP -2- District Kinnaur. As per the petitioner, in the year 1999, he was further transferred to Wild Life Division Sarahan and in 2017 he was transferred to Wild Life Circle, Shimla. A year later, in 2018, he was transferred to Forest Division Reckong Peo, Kinnaur, however, .
through impugned order dated 20.08.2020 (Annexure P-1) the petitioner was transferred from Forest Division Reckong Peo, Kinnaur, to the Office of APD, JICA Project Rampur, District Shimla and as per the petitioner, he was transferred only to accommodate private respondent No. 3.
3. As per the petitioner, he did not complete his normal stint at the present place of posting and private respondent No. 3, who was promoted as Superintendent Grade-II, was transferred to JICA Project Rampur, managed a D.O. note, whereupon she got her transfer cancelled and ultimately petitioner was transferred. Thus, the petitioner, feeling aggrieved, laid challenge to the impugned transfer order dated 20.08.2020 (Annexure P-1). The petitioner contends that action of respondents No. 1 and 2, in transferring him, is unjust, unfair, arbitrary, discriminatory and thus it cannot sustain in the eyes of law. It is further contended that as per notification dated 23.07.2020 (Annexure P-2) no transfer can be made during the ban period, so the transfer of the petitioner is in violation of Annexure P-2. As per the petitioner, private respondent No. 3 served for 20 years in the Office of Kinnaur Forest Division at Reckong Peo and on her promotion, she was transferred to JICA Project, Rampur, however, she ::: Downloaded on - 28/10/2020 20:19:18 :::HCHP -3- managed a D.O. note and in order to accommodate her, the petitioner was transferred. Lastly, the petitioner prays that the extant writ petition be allowed and impugned transfer order dated 20.08.2020 (Annexure P-1) be quashed and set-aside.
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4. Respondents No. 1 & 2, by instituting an elaborative and detailed reply, resisted and refuted the contentions raised by the petitioner. As per respondents No. 1 & 2, it is the prerogative of the State Government to post/transfer any employee anywhere in the State, keeping in view the administrative convenience/exigencies and no government employee can claim his/her transfer or posting as a matter of right. The petitioner is permanent resident of Tehsil Nankhari, Shimla, and has been transferred to Rampur, which is near to his native place. The transfer of the petitioner is made on prior approval of the State Government and in public interest. The petitioner completed his stint of two and half years at Forest Division Reckong Peo, Kinnaur, and he is transferred near to his native place, so should have no grudge. Lastly, a prayer for dismissal of the extant writ petition has been made.
5. Private respondent No. 3, instituted a separate reply, refuting and resisting the contentions raised by the petitioner in the petition. As per respondent No. 3, the petitioner has completed his normal stint in tribal area, i.e., two winters and three summers, thus his transfer is legally sustainable. The transfer of the petitioner is made in public interest. Private respondent No. 3 averred that the ::: Downloaded on - 28/10/2020 20:19:18 :::HCHP -4- petitioner had earlier made a representation to respondent No. 2 for his transfer from Kinnaur Forest Division to Wild Life Division Sarahan. It is denied that the petitioner is transferred in order to adjust her (respondent No. 3). It is denied that impugned transfer .
order (Annexure P-1) is violative of government notification dated 23.07.2020. Annexure P-1 has been issued in public interest with prior approval of the competent authority by condoning the short stay of the petitioner, as well as relaxation of ban on transfers. Lastly, it is prayed that the extant writ petition be dismissed.
6. We have heard the learned Counsel for the petitioner, learned Additional Advocate General for the respondents/State and learned Counsel for respondent No. 3 and also gone through the records.
7. Learned Counsel for the petitioner has argued that the petitioner, who has not completed his normal tenure at the present place of posting, is transferred during the ban on transfer just to accommodate private respondent No. 3, so the action of respondents No. 1 and 2 is highly unjust, unfair, arbitrary, discriminatory and it is not legally sustainable. He has further argued that the impugned transfer order, in the wake of the facts and circumstances of the case, needs to be quashed and set-aside by allowing the extant writ petition. Per contra, the learned Additional Advocate General, has argued that it is the prerogative of the State Government to post/transfer any employee anywhere in the State, considering the administrative ::: Downloaded on - 28/10/2020 20:19:18 :::HCHP -5- exigencies. He has further argued that the petitioner has completed two and half years' stint in Kinnaur Forest Division, so by condoning his short stay he is transferred to the office of APD, JICA, Rampur, which is near to his native place Nankhari. He has prayed that the .
extant petition deserves dismissal and be dismissed. On the other hand, learned Counsel for respondent No. 3 has argued that the petitioner has earlier made a representation seeking his transfer from Kinnaur Forest Division to Wildlife Division Sarahan, as a couple case, on this score only the petition is liable to be dismissed. He has further argued that the petitioner has been rightly transferred by the State Government in public interest by condoning the short stay and in relaxation of ban of transfers, so no violation of notification dated 23.07.2020 has been committed. The transfer of the petitioner is effected in public interest and administrative exigency with prior approval of the competent authority, so the extant petition is without merits, deserves dismissal and be dismissed.
8. Manifestly, the petitioner has made a representation to the competent authority seeking his transfer to Wildlife Division Sarahan and in his representation he has averred that his wife is also in government job in Education Department and posted as TGT (Arts) at Government High School Shahdhar, so it is not possible for him to look-after her from Kinnaur. It is the policy of the respondents/State that one has to be transferred from a hard/tribal area after completion of his/her tenure and his choice(s) to be taken into consideration ::: Downloaded on - 28/10/2020 20:19:18 :::HCHP -6- while transferring him/her, but in the extant case, the petitioner has been transferred against his choice to the office of APD, JICA Project Rampur, District Shimla and his representation was not taken into consideration. The station, where the petitioner has been transferred, .
i.e., APD, JICA Project Rampur, District Shimla, is not the place of petitioner's choice. Otherwise also, as per private respondent No. 3, and as is emanating from the records, the petitioner has requested for his transfer, as a couple case to Wildlife Division Sarahan to look-after his working spouse, however, he is transferred again away from his spouse, thus against the request/representation made by him. Under these circumstances, it seems that the transfer of the petitioner in place of private respondent No. 3 is made just to accommodate private respondent No. 3 and neither in public interest nor as per the transfer police in vogue and thus liable to be quashed and set-aside.
9. In view of what has been discussed hereinabove, the petition is allowed and impugned transfer order dated 20.08.2020 (Annexure P-1) is quashed and set-aside. The petition is disposed of in the above terms. Pending application(s), if any, shall also stand(s) disposed of.
(Sureshwar Thakur)
Judge
(Chander Bhusan Barowalia)
28th October, 2020 Judge
(virender)
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