Avinash Jublee vs State of Himachal Pradesh

Justice Dharam Chand Chaudhary, J.—The challenge herein is to the order dated 30.4.2012 read with corrigendum dated 10.5.2012 Annexure P-1, whereby while adjusting the 3rd respondent, who was under transfer from GSSS Purana Kangra to GSSS Dehra, at GSSS Kachhiari (KGR) in the place of the petitioner, he has been ordered to be transferred to GSSS Dehra (KGR). The legality and validity of the impugned order has been assailed on the sole ground that the 3rd respondent being politically heavy weight, throughout her service career, managed her postings at difference places in Kangra District, within the radius of 10 kms and at this time also instead of reporting compliance and joining duties at GSSS Dehra, she has managed her posting in his place at Kachhiari (KGR) and it is he who has been transferred there at such a stage when he has not completed his normal tenure.

On the very 1st day of posting of this writ petition, i.e. 16.5.2012, in view of the submission made on behalf of the petitioner, in the interim, the following order was passed:

Petitioner submits that the 3rd respondent has served throughout her career within 10 k.m. The above submission is recorded. If the above submission is found wrong, the petitioner shall be mulcted with costs. In view of the above submission, notice dasti to the 3rd respondent. In case the petitioner is not relieved as on today, further proceeding in that regard will be deferred for the time being. Needless to say that the petitioner and the 3rd respondent will work at their respective stations, prior to passing of the impugned order of transfer.

The 3rd respondent, however, when put in appearance has informed that she had already joined her duties in GSSS, Kachhiari on 11.5.2012, i.e. well before the interim order passed in this writ petition on 16.5.2012. Thus, vide interim order passed on 1.6.2012, the respondents were directed not to compel her to join duties at the transferred station, i.e. GSSS Dehra, however, with further direction that it will be open to her to avail leave of the kind due.

The fact thus remains that pursuant to the interim order passed in this writ petition on 16.5.2012, the petitioner is still continuing in GSSS, Kachhiari, whereas the 3rd respondent on leave.

In reply to the writ petition filed on behalf of respondents No. 1 and 2, service particulars of both, the petitioner and the 3rd respondent have been given. On merits, the stand taken by the respondents is that in view of clubbing of his stay in GSSS Kachhiari and Matour, i.e. within the radius of 15 kms, the petitioner has completed his normal tenure and as such, he has no locus-standi to file the present writ petition.

In separate reply filed on behalf of the 3rd respondent, while denying that she remained posted throughout her service career within the radius of 10 kms in District Kangra only, she has placed on record Annexure R3/2, the detail of places of her postings ever since her appointment till date.

It is in this backdrop, I have heard learned counsel on both sides and also gone through the record.

The sole point in issue, which needs adjudication in this writ petition, is as to whether the transfer of the petitioner from GSSS Kachhiari to GSSS Dehra, being violative of the transfer policy is not legally sustainable.

If coming to the service particulars of both the petitioner and the 3rd respondent, detailed in reply to the writ petition filed on behalf of respondents No. 1 and 2, the same reads as under:

Sh. Avinash Jublee (petitioner) Home District, Kangra

Sr. No.

Place of Posting

Period

Distance

1.

GSS Hobbar (Chamba)

21.7.2001 to 24.8.2002

2.

GSSS Ganvi (Shimla)

26.8.2002 to 26.9.2007

450 kms approx.

3.

GSSS Mataur (KGR)

28.9.2007 to 26.4.2011

300 kms. approx.

4.

GSSS Kachhiari (KGR)

27.4.2011 till date.

6 kms. approx.

Smt. Indu Thakur (respondent No. 3) Home District Kangra

Sr. No.

Place of Posting

Period

Distance

1.

GSSS Daulat Pur (KGR)

21.7.1998 to 17.12.98

2.

GSSS Nagrota Bagwan (KGR)

17.12.1998 to 3.10.2001

25 kms. approx.

3.

GSSS Kachhiari (KGR)

3.10.2001 to 3.7.2008

9 kms. approx.

4.

GSSS Old Kangra

3.7.2008

6 kms. approx.

The above service particulars are restricted only to the period from their appointment as Lecturers (School Cadre). No doubt, as per the above service particulars, the petitioner, who belongs to District Kangra, was initially appointed as Lecturer in GSSS Hobbar in District Chamba and subsequently transferred to GSSS Ganvi in District Shimla, however, later on he was transferred and posted as such in GSSS Mataur in District Kangra on 28.9.2007 and thereafter at GSS Kachhiari (KGR), which as per the detail given in the reply, is situated at a distance of 6 kms. The stay of the petitioner in GSSS Kachhiari and Mataur, if clubbed, comes to more than three years. In such a situation, he is not justified in claiming that he has been transferred without allowing him to complete his normal stay at Kachhiari.

If coming to the service particulars of the 3rd respondent, no doubt after being promoted as Lecturer (School Cadre), she was posted as such in GSSS Daulat Pur (KGR) on 21.7.1998 and thereafter in the year 2001 transferred to GSSS Nagrota Bagwan (KGR), a place situated at a distance of 25 kms. Later on she was transferred from Nagrota Bagwan (KGR) to Kachhiari (KGR), a place situated at a distance of 9 kms and thereafter to GSSS, Old Kangra, situated at a distance of 6 kms from Kachhiari. She though was under transfer to GSSS Dehra, the distance whereof has not come on record, however, Dehra is situated at a distance of approximately 35 kms. from Old Kangra of which this Court can take judicial notice. Although she being a Class-I gazetted Officer and during her service career as Lecturer remained posted at Daulat Pur, Nagrota Bagwan, Kachhiari and Old Kangra, the places within the radius of 25 kms in Kangra Sub Division, her transfer from Old Kangra to Dehra cannot be said to be harsh or oppressive, yet keeping in view that she has been adjusted at the place of the petitioner at Kachhiari by the respondents, vide impugned order Annexure P-1 read with corrigendum thereto, most probably taking into consideration her adverse family circumstances viz. she is suffering from low disc problem as per the medical history sheet of Dr. Rajendra Prashad Govt. Medical College and Hospital, Kangra at Tanda, Annexure R3/3 and her husband being a Scientist in Chaudhary Sarwan Kumar Krishi Vishvavidyalya Palampur and posted as such in Shivalik Agricultural Research and Extension Centre, Kangra as well as her daughter being a student of 10th class is studying in Sacred Heart Senior Secondary School, Sidhpur, Dharamshala, this Court finds no reason to interfere with the exercise of such power by her employer, the 1st and 2nd respondents, particularly when the petitioner has already completed his normal tenure and the distance between Kachhiari and Dehra where he has now been transferred is only 40 kms. He being not a low paid employee and rather a Class-I gazetted Officer is not justified in raising hue and cry in this behalf.

Above all, it is well settled at this stage that in a matter of this nature, the Courts must be slow in interfering with the exercise of power of transfer of an employee by the competent authority in the exigency of service and in public interest, without there being any element of malice or arbitrariness attached thereto. The petitioner has miserably failed to satisfy this Court that his transfer to Dehra is not in the public interest and rather for some extraneous consideration or oblique motive. The present is thus not a case where the intervention of this Court is warranted.

Balance of convenience and equity is also not in favour of the petitioner, because the representation made by his counsel on the very first day of hearing that the 3rd respondent throughout her service career remained posted within the radius of 10 kms., stands falsified from the detail of stations of her postings Annexure R3/2, given by the Principal, Govt. Senior Secondary School, Purana Kangra. This document reveals that while working as TGT i.e. the feeder category for promotion to the post of lecturer, she remained posted in GSSS Dhundan, GMS, Surajpur in District Solan, GSSS Namohal in District Bilaspur, GSSS Nagarota Bagwan and GMS, Kawahi under complex GHS (Girls), Nagrota Bagwan in District Kangra. These stations certainly cannot be said to be within the radius of 10 Kms. Even on her promotion as lecturer also, the distance between various places of her postings cannot be said to be 10 kms, however, as per service particulars given by the 1st and 2nd respondents in reply to the writ petition, it has to be taken as 25 kms. The petitioner has thus misled this Court and obtained interim order while representing falsely. On this score also, the writ petition deserves dismissal.

Not only this, but the submission made on behalf of the petitioner that the 3rd respondent throughout her service career remained posted within the radius of 10 kms was recorded in the interim order dated 16.5.2012, with further observation that if the same is found wrong, the petitioner shall be mulcted with costs. How much cost, however, has to be awarded against the petitioner is to be quantified in the light of the given facts and circumstances of the case. Learned counsel seems to have made the above submission taking into consideration the details of the places of postings of the 3rd respondent after her promotion as a lecturer (school cadre). Though in that event also, it cannot be said that during her service career as lecturer she remained posted within the radius of 10 kms, because as per her service particulars detailed hereinabove, GSSS, Nagrota Bagwan where she was transferred for the first time after becoming a lecturer is 25 kms from Daulatpur. However, the other stations where she was subsequently transferred no doubt are within the radius of 10 kms. Keeping in mind such mitigating circumstances, the present is not a case of imposing exemplary costs against the petitioner, however, nominal one viz. Rs. 1000/- only, which in my opinion, would serve the ends of justice. In view of all the reasons hereinabove, this petition fails and the same is accordingly dismissed with Rs. 1000/- as cost, which shall be deposited in the welfare fund of H.P. High Court Bar Association. Consequently, interim orders dated 16.5.2012 and 1.6.2012 also stand vacated. Pending application(s), if any, shall stand disposed of.