Himachal Pradesh High Court
Anoop Kumar Bhardwaj vs State Of Himachal Pradesh & Ors on 1 June, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 697/2023
Decided on : 1.6.2023
Anoop Kumar Bhardwaj .....Petitioner
Versus
State of Himachal Pradesh & ors. ...Respondents
.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1No
For the Petitioner: Mr. Suneet Goel, Advocate.
For the Respondents: Mr. Anup Rattan, A.G. with Ms.
Priyanka Chauhan, Dy.A.G. and Mr.
Rajat Chauhan, Law Officer, for
respondents No.1 and 2.
Mr. J. L. Bhardwaj, Sr. Advocate
r with Mr. Sanjay Bhardwaj, Advocate,
for respondent No.3.
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
Even though this petition is directed against the order of transfer, however, a perusal of the records would go to reveal that both the petitioner as also private respondent working as Registrars in HPPWD, being Class-I, have been pulling strings for their transfer and posting on the stations of their choices and have managed their postings continuously for more than three and half decades.
2. Even while arguing this petition, allegations and counter allegations were exchanged, but both the parties would not yield. The petitioner belongs to District Solan and has from the year 1985 till date served more than 2/3rd of his service tenure in District Solan that too proper Solan Town, whereas respondent No.3, who belongs to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 02/06/2023 20:31:28 :::CIS 2District Kullu has served in the adjoining area Rampur for about 8 years, thereafter at his home station for about 25 years, and .
thereafter 6 months at Kullu and 6 months at Shimla before he was transferred to Hamirpur where he has served for about 4 months.
3 In short, both the petitioner as also private respondent have had their ways and managed their posting by trampling upon rights of other employees, which obviously were at the cost of rights of their own colleagues.
4 While dealing with an issue where employees working under the State Government had been seeking their postings only in Shimla and had infact formed some sort of cartel, this Court in Sheela Suryavanshi vs. State Of H.P. & Ors., 2020 Labour Industrial Cases 3907 observed 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 ::: Downloaded on - 02/06/2023 20:31:28 :::CIS 3 their postings in and around urban areas, leaving practically no room for the other employees.
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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.
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 ::: Downloaded on - 02/06/2023 20:31:28 :::CIS 4 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. r 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."::: Downloaded on - 02/06/2023 20:31:28 :::CIS 5
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 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'."
5 No employee(s) in the service of the State, was it statutory Board and Corporation etc., can be so indispensable that he/they cannot be transferred out of their comfort zone.
::: Downloaded on - 02/06/2023 20:31:28 :::CIS 66 This Court in CWP No.6284 of 2021 titled Harinder Singh vs. Himachal Pradesh State Electricity Board Limited and .
another, decided on 02.12.2021, while deprecating the practice of favouritism in matters of transfer observed as under:
"2.The petitioner was appointed as Clerk in the respondent-Board in the year 1992 and thereafter promoted to the post of Senior Assistant. Later, vide office order dated 30.6.2020, he was promoted to the post of Superintendent (Grade-II) and ordered to be transferred from Electrical Sub Division Bagthan under Electrical Division Nahan to Electrical Sub Division Totu, Shimla. The petitioner joined at Totu on 14.7.2020 and vide office order dated 29.9.2021, has been ordered to be transferred to Boards Secretariat, Shimla vice respondent No.2, Ranju Sharma.
3. On the other hand, respondent No.2 ever since her appointment in the year 1998 and despite three promotions has only served in Shimla and even now while she was ordered to be transferred from Electrical System Division Totu to Boards Secretariat Shimla, has been accommodated against the interest of the petitioner by posting her at Electrical System Division Totu.
4. If this was not enough, the official respondent has been over enthusiastic in contesting the case knowing fully well that its action is absolutely illegal and smacks of favouritism and nothing more.
5.The official respondent has gone to the extent of preparing statement of incumbency of the petitioner, but would not disclose the incumbency of respondent No.2, who, as stated above, has served only in Shimla.
6.The Central Government, State Governments and unlike all public sector undertakings are expected to function like a model employer. The model employer is under an obligation to conduct itself with high probity and expected candour and the employer, ::: Downloaded on - 02/06/2023 20:31:28 :::CIS 7 who is duty bound to act as a model employer, has social obligation to treat its employees in an appropriate manner so that .
an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employees and take advantage of their helplessness and misery.
7. In the present case, conduct of the official respondent is reprehensible and falls short of expectation of a model employer and to say the least, the official respondent has indulged in favouritism thereby driven the petitioner to unnecessary and avoidable litigation.
8. It needs to be noticed that transfer of respondent No.2 was ordered to be effected within stone's throw distance, yet she again managed to have modified the transfer and stayed in a comfort zone.
9. Since the impugned transfer order has been effected not on account of administrative exigency or public interest, but on favouritism, the same cannot sustain and is ordered to be quashed and set aside.
10. Normally, in the given facts and circumstances, we would have passed mandatory direction to the official respondent to transfer respondent No.2 to a far flung and remote area, so that she could understand the pangs of separation along with discomfort and distress, which normally an government employee undergoes when transferred from his/her comfort zone, however taking into consideration the fact that respondent No.2 is due to retire shortly, we desist from passing any order for the time being, however in case the official respondent contemplates to transfer Superintendent Grade-II, then it will be first respondent No.2, who shall be transferred outside Shimla District.
11. Before parting, we need to observe that the role of the respondent-Board as a model employer has been deliberated upon by us with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the genuine ::: Downloaded on - 02/06/2023 20:31:28 :::CIS 8 employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is .
not created where hopes end in despair.
12.Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful by playing a game of chess, that too, entrenched in favouritism. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. We leave it at that."
7 Since, both the petitioner as well as private respondent have not only feigned ignorance regarding the works and ethics of the Department but their conduct is otherwise not befitting the office they are holding, therefore, both of them are required to be posted/transferred out of their comfort zone i.e. present place of posting, as granting an indulgence to any one of the parties in this case would be causing manifest injustice to their colleagues, who may be desirous to serve at the stations, where both petitioner as also private respondent have been working, but have failed to get posting because of the cartel formed by the employees like the petitioner and private respondent. This Court is not inclined to exercise its discretion in favour of any of the parties "as justice is not on their side".
8 In such circumstances, we see no reason to interfere with the transfer order, but would direct the official respondents to transfer ::: Downloaded on - 02/06/2023 20:31:28 :::CIS 9 the petitioner to Lahaul & Spiti and respondent No.3 to District Kinnaur and report compliance before the next date.
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9 The petition stands disposed of, in the aforesaid terms, so also the pending application, if any.
10 For compliance, to come up on 15.6.2023.
(Tarlok Singh Chauhan) Judge (Virender Singh) 1.6.2023 (pankaj) r Judge ::: Downloaded on - 02/06/2023 20:31:28 :::CIS