Awantika Thakur vs State Of H.P & Others

Vivek Singh Thakur, J

Respondent No. 4 stands duly served, but he has not chosen to be represented.

Petitioner has approached this Court against her transfer vide order dated 13.8.202, on the ground that transfer has been ordered on the basis of U.O. Note generated and approved at the instance of the then local MLA, but without due application of mind by the concerned department.

Record has been produced. Perusal of record reveals that after receiving communication from Hon’ble Health and Family Welfare Minister approving proposal of 25 transfers, the concerned authority has issued the transfer order on the basis of U.O. Note, but without considering the matter at Departmental level and thus without due application of mind with respect to proposal so made, despite the fact that it was reported to the Administrative Authority that order cannot be implemented due to extreme short stay. Though in July, 2022 file was proposed to be placed before the then Hon’ble Health Minister, but the same was never placed before him and orders were issued on the basis of U.O. Note No. 2640 dated 21.7.2022.

For adjudication of present case, reference in this regard can be made to various pronouncements of this Court, including Ram Krishan vs. District Education Officer, reported in ILR HP 1979 HIM 481 : 1979 Shim LC 345; A.K. Vasudeva vs. State of H.P. and others, reported in ILR (Himachal Series) (1981) 10 HIM 359; 1982 Shim LC 104; CWP No.1105 of 2006, titled as Sushila Sharma vs. State of H.P. and others; Sant Ram Pant vs. State of H.P. and others, reported in 2009 (3) Shim. L.C. 206; CWP No.2844 of 2010, titled as Pratap Singh Chauhan vs. State of H.P. & others reported in 2010(3) Shim.LC 379, decided on 18.06.2011; CWP No.3530 of 2011, titled as Babita Thakur vs. State of H.P. and others reported in 2011(2) Shim.LC 28; Amir Chand vs. State of Himachal Pradesh, reported in 2013 (2) HLR (DB) 648; Sanjay Kumar vs. State of H.P. and Ors., reported in Latest HLJ 2013 (HP) 1051; Raj Kumar vs. State of H.P. and Ors., reported in 2015 (1) Him. L.R. (DB) 567; CWP No.2621 of 2020, titled as Lekh Raj vs. State of H.P. & Ors., decided on 17.08.2020 : 2020 SCC Online HP 3429; CWP No.511 of 2020, titled as Sheela Suryavanshi vs. State of H.P., decided on 26.8.2020; CWP No.2677 of 2020, titled as Shugal Singh vs. State of H.P., decided on 24.9.2020; CWP No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal Pradesh, decided on 29.9.2020; CWP No.5294 of 2020, titled as Abdul Hamid vs. State of H.P. and others, decided on 5.1.2021 : 2021 SCC Online HP 48: 2021 Lab IC (NOC 215) 65; CWP No.1387 of 2021, titled as Praveen Kumar vs. State of H.P and others, decided on 31.3.20221; CWP No.2862 of 2021, titled as Vipender Kalta vs. State of H.P. and others, decided on 20.7.2021; and CWP No.5721 of 2021, titled as Promila vs. State of H.P. and others, decided on 8.10.2021.

Following observation made by Coordinate Bench of this High Court in CWP No. 2621 of 2020 titled as Lekh Raj vs. State of HP reported in 2020 SCC Online HP 3429 is also relevant, which reads as under:-

“8. … … … then such recommendations are thereafter got implemented through the Hon’ble Chief Minister, leaving virtually little or no scope for any discretion or taking any independent decision for the administrative department.

……….

Before the recommendations could reach the administrative department, the same were placed before the Hon’ble Chief Minister, who appended his note on 03.07.2020 “May be done as proposed”. It appears that all the proposed transfers were approved as it is, without even consulting the administrative authority.

10A. It is more than settled that an elected representative can only propose the transfer of an employee, that too for genuine and cogent reasons and not by usurping the authority of the administrative department, who alone is competent to issue the orders of transfer after due application of mind. Obviously, the administrative department in such circumstances, had no choice whatsoever, but to implement the recommendations made by the local MLA as approved aforesaid.”

In view of above, we have no option but to quash the transfer order of the petitioner. Accordingly, Office Order dated 13.8.2022 is quashed qua petitioner only.

However, it is also made clear that quashing of transfer does not mean that petitioner cannot be transferred in any administrative exigencies. The concerned authority shall be at liberty, if required so, to transfer her to utilize her services wherever so required in administrative exigency and public interest, in accordance with law.

Petition is disposed of in aforesaid terms, so also pending application(s), if any.

Parties are permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.