Himachal Pradesh High Court
____________________________________________________________ vs State Of H.P. & Others on 9 September, 2019
Author: Jyotsna Rewal Dua
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 1694 of 2019
Decided on: 09.09.2019
____________________________________________________________
Keshav Ram ...Petitioner
.
Versus
State of H.P. & Others ...Respondents
____________________________________________________________
Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
____________________________________________________________
For the petitioner : Mr. Ajit Saklani, Advocate.
For the respondents
r :
Mr. Ashok Sharma, Advocate General with
M/s Ritta Goswami, Adarsh Sharma & Mr.
Ashwani Sharma, Additional Advocate
Generals, for respondents No. 1 to 3.
Mr. S.K. Banyal, Advocate, for respondent
No.4.
____________________________________________________________
Jyotsna Rewal Dua, J.
Petitioner (Principal School Cadre) has challenged his transfer order dated 25.07.2019 (Annexue P-1) vide which, he has been transferred from Govt. Sr. Secondary School, Brang, District Mandi to Govt. Sr. Secondary School, Shadiyar, District Sirmaur.
2(i) The transfer order has been challenged on the grounds that:- The petitioner joined as Principal in Govt. Sr. Secondary School, Brang, District Mandi on 15.03.2017 and had not completed his normal tenure there as prescribed in the Transfer Policy; the transfer order has been issued only to accommodate respondent No.4 in Govt. Sr. Secondary 1 Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 03:59:53 :::HCHP 2School, Brang, District Mandi; transfer of the petitioner has been effected without TTA and joining time, whereas, petitioner had never requested for his transfer; wife of the petitioner was recently posted at a station within 3 KMs from Govt. Sr. Secondary School, Brang being a couple case; transfer .
of the petitioner was neither in public interest nor in administrative exigency; petitioner has been transferred on the basis of a U.O. Note No. 144778, dated 04.07.2019.
2(ii) In Sanjay Kumar vs. State of Himachal Pradesh and others (2013) 3 Shim.L.C 1373; Amir Chand vs. State of Himachal Pradeh, 2013(2) Him.L.R. (DB) 648 and in Ashok Kumar Attri vs. Himachal Pradesh Power Corporation Limited, 2013 (3) Shim.LC 159, it has been held that any proposal of transfer of an employee from any elected representative cannot be straightway implemented. The Administrative Head is required to examine the proposal impartially and has to take an independent decision on the merits of same in accordance with law and as per transfer policy.
3(i) Considering the allegations levelled in the writ petition regarding the petitioner having been transferred on the basis of a D.O. Note, we had called for and seen the record pertaining to transfer of the petitioner. The record shows that proposal to transfer the incumbents figuring in impugned transfer order dated 25.07.2019(Annexure P-1) originated and was approved by the Education Minister on 20.07.2019.
::: Downloaded on - 29/09/2019 03:59:53 :::HCHP 33(ii) While considering this proposal, the departmental remarks in respect of petitioner were that Shri Keshav Ram, Principal (DOB, 20.09.1967) was working at GSSS Brang District Mandi since 09.03.2017 and had short stay. Previous details of his postings were also provided viz:-
.
(1) S/S Gaonsari (SML) 21-06-2011 to 11.07.2012; (2) S/S Kamlah-Fort (MND) 12-07-2012 to 23.09.2013; (3) S/S Cholthara 23.09.2013 to 08.03.2017. It was also mentioned in the remarks that 'Moreover, there is no complaint received in this office with the transfer proposal in r/o Sh.
Keshav Ram, Principal on administrative grounds'.
Even though, the petitioner had not completed his normal tenure at Govt. Sr. Secondary School, Brang, District Mandi as per Transfer Policy, yet, he was ordered to be transferred vide impugned transfer order (Annexure P-1).
3(iii) During hearing of the case, written instructions imparted from the office of the Principal Secretary (Education) to the Government of Himachal Pradesh, to the Learned Additional Advocate General dated 31.08.2019, were placed on the record to the effect that a complaint was received against the petitioner and, therefore, his transfer was effected after prior approval of the competent authority. However, the record examined by us, in particular the departmental remarks given on the file on 22.07.2019 are categoric that no complaint was received by the department against the petitioner at least till 22.07.2019. Date of receipt of the undated complaint as mentioned on the complaint is 30.08.2019, whereas transfer ::: Downloaded on - 29/09/2019 03:59:53 :::HCHP 4 was approved on 20.07.2019 and impugned transfer order was issued on 25.07.2019. Otherwise also, the transfer of an employee cannot be ordered on the basis of complaint by way of penalty without holding enquiry into the allegations therein and affording opportunity of being heard to him/her.
.
We are not commenting upon the complaint. However, the fact remains that the transfer has been effected straightway on the basis of proposals of the elected representative without due application of mind by the Administrative Head either to the proposal or to the alleged complaint or the justifiability of such transfer as per transfer policy.
4. Hence, impugned transfer order Annexure P-1, dated 25.07.2019, having been issued in violation of the law laid down by this Court as well as in violation of Transfer Policy, is quashed and set aside.
We, however, leave it open to the respondents to consider the case afresh in accordance with Transfer Policy and in accordance with law laid down.
The writ petition is disposed of accordingly, so also the pending application(s), if any.
(Dharam Chand Chaudhary) Judge (Jyotsna Rewal Dua) Judge 9th September, 2019 (reena) ::: Downloaded on - 29/09/2019 03:59:53 :::HCHP 5 .
r to ::: Downloaded on - 29/09/2019 03:59:53 :::HCHP