Chaman Lal vs State Of H.P. & Another

Sureshwar Thakur, J

The writ petitioner, through the instant writ petition, impugns Annexure P-1, where through, he has been transferred from Kullu, as DM, FWD,

Kullu to Kinnaur, as DFO, Kinnaur. Annexure P-3 was made, within less than two years expiring, since the making, of, Annexure P-1, and, where

through, he became transferred from the post of DFO Kinnaur, to the post of DM, FWD, Rampur. Resultantly, the learned counsel for the petitioner,

argues that the right, of, completion, of, a tenure of three years, as DFO, Kinnaur, has become denied, to the petitioner, despite, the relevant norm(s),

hence encapsulated in the apposite policy, making enshrinements, rather forbidding the employer to, before expiry of three years, of, the

officers/officials concerned, at the stations concerned, hence make an order, of, transfer upon him. However, the vigor of the afore espousal becomes

deadened, through a perusal, becoming made, of, clause 10, of, the guiding principles, as become formulated, for regulating the transfer(s), of, Public

Officers/officials, clause whereof, becomes extracted hereinafter:

“10. The Government can transfer any Officer/Official at any time irrespective of stay, in view of administrative exigency, in the public interest.

However, normally the tenure/stay of an Officer/Official at one station shall be three years which will not be applicable to the Officer of

IAS/HPAS/HPPS/HPFS, other allied services and all Class I and II Officers†Inasmuch as, reading(s), of, the afore extracted relevant clause, of,

the apposite policy, makes trite underlinings, that, the normal stint, of, any Public Officer/official, at the station concerned, shall be three years, and,

thereafter only the employer becoming mandatorily injuncted, given the imparting(s), of, a mandatory parlance, to, the phrase, “shallâ€, occurring

therein, to, post him/her elsewhere (i) whereupon, the shortening, of the stint, of, three years, of, the petitioner, as DFO, Kinnaur, hence through the

impugned transfer order, may become invalidated, (ii) however, since it also becomes prescribed therein, that the afore prescription, does become

waned, upon the apposite authority, upon existence, of, administrative exigency(s), or, in public interest, deeming it fit, to, curtail the afore stint, or,

tenure, of, three years, of any Public Officer/Official, at the station(s) concerned.

Besides, when the afore clause is, also, enshrined to be inapplicable, to all officers belonging , to, IAS/HPAS/HPPS/HPFS, other allied services,

and, is also made inapplicable, to, all Class I and II Officers, and, importantly, when the petitioner, is, uncontrovertedly, an Officer, belonging to the

Himachal Pradesh Forest Services, (a) thereupon, merely upon his tenure, of, three years, as DFO Kinnaur, becoming shortened, through the

making(s), of, the afore made transfer order, he cannot hold any valid grudge, against the impugned transfer order.

Moreover, since it is also un-repulsedly contended, on an affidavit, hence sworn by a responsible functionary, qua the State/competent authority,

also meteing its approval thereto, thereupon, the vigor of any oral espousal, addressed before this Court, by the learned counsel, for the petitioner, that

it is made without any approval being granted thereto, by the competent authority, becomes completely unfounded. In summa, the, afore made

submissions become mis-founded.

The learned counsel for the petitioner, has also drawn the attention of this Court, to Annexure R-7, Annexure whereof, is, a complaint addressed

against the writ petitioner, by the addressee thereof, to, the Hon’ble Chief Minister, Himachal Pradesh, wherein imputations, are made, against the

writ petitioner, vis-Ã -vis, his in breach, of the apposite norms and guidelines, rather awarding works, to, certain underserving aspirants. He further

argues, that since the afore complaint, is, contended in the reply/affidavit, furnished, to, the CWP, by the respondent, to be awaiting, an, adjudication,

(i) and also when for ensuring, the, makings, of, an impartial adjudication thereon(s), does, hence become, the guiding factor, for, the writ petitioner,

rather through the impugned Annexure, becoming transferred, (ii) thereupon, the impugned Annexure(s), acquiring a punitive tinge or a vindictive

overtone, that hence, it is not made for subserving any public interest, or for subserving any administrative exigency. He contends that the impugned

transfer order, rather becomes ingrained with malafides, and political vindictiveness, and, thereupon, it warrants an interference, being made, by this

Court.

For fortifying the afore made submission, the learned counsel for the petitioner, depends upon, a verdict made by this Court, on 3.1.2020, upon CWP

No. 2587 of 2019, case titled as, “Joginder Rao versus State of Himachal Pradesh and anotherâ€, (i) wherein a Coordinate Bench of this Court,

after considering the verdicts pronounced by this Court, in case titled as, “Raj Kumar versus State of Himachal Pradesh and others, decided on

31.12.2014, and, also its after considering a verdict, pronounced by this Court, in case titled as “ Amir Chand Vs. State of Himachal Pradeshâ€,

reported in 2013(2) Him.L.R.648, (ii) wherein an expostulation of law becomes cast, that upon any complaint being received, from, public

representative(s), hence against Public Officers/Officials concerned, (iii) thereupon, upto verification, being made, qua truth(s) thereof, (iv) thereupto

the order of transfer, becoming, a, colorable order, of, transfer, or it acquiring overtones, of, punitivness, (v) whereupons it also acquiring a taint of

voidness or illegality, (vi) besides, it has also been expostulated therein(s) that vis-Ã -vis, the imperative facet(s) of existence(s), of, administrative

exigency(ies), or, of administrative necessities, besides, vis-Ã -vis, the apposite transfer order(s), sub-serving public interest, rather the apposite

therewith empowerment(s), falling within the domain, of, Administrative Heads, or rather(s) not falling within the domain, of, Public Representatives,

nor within the domain(s), of, the Highest political executive(s).

Be that as it may, in a judgment rendered in Amir Chand’s case (supra), obviously, given, the, democratic nature, of, our polity, there is no

absolute exclusion, of, democratically elected political executives, against their not participating, in the relevant process, of, making transfer(s), of,

public officers/officials concerned. Nonetheless, the transfer order, is, mandated therein, to be free from any tinge or overtones, of, punitiveness,

rather imbuing it, upon any un- verified complaint, rather becoming the, motivating or guiding factor, with, the authority(ies) concerned, in its making

the apposite order, of, transfer.

However, no fixed ratio-decidendi, can become culled therefrom, for making any unflinching determination rather omnibously appertaining qua

therethrough any straightjacket formula, or any rigid dictat, becoming cast,(i) qua dehors, the position, status and influencing capacity, of, the Public

Officers/Officials concerned, against whom, any unverified allegation, of, his/their purportedly committing any mis-demeanor, or his/their committing

breach, of, any Rules, of, service, (ii) thereupon, unless any inquiries, qua therewith become, hence completely concluded, rather constituting a

completest interdiction, against the authority concerned, to, hence make an order, of, transfer, upon the purported delinquent concerned.

Be that as it may, in any democratic polity, Public Representative(s), who obviously, enjoy the mandate, of, public, and who also hold an interface

with the public, rather, for ensuring the efficient manning, of, the Administrative works, by all officials/officers concerned, (i) may, unless the making,

of, aspersion(s) by them, against, the, purported ill working(s), of, Public Officers/officials concerned, becoming evidently established, to, become

steeped in a deep vendetta, nursed by them, against public officials concerned, and, who otherwise, are, efficient, and, honest, do, hold some well

canalized discretion(s), rather for ensuring, the, healthy running, of public administration, by Public Officers/officials concernds’, hence in, the,

processes, appertaining, to the transfers, of, public officials/officers concerned, (ii) and, yet again with a rider that, upon, the highest political

executive(s), becoming seized thereof, he/it making an independent objective, application of mind, to the necessity(ies), of, administrative exigency(ies),

becoming therethrough sub-served, or public interest, also becoming therethrough hence subserved.

Needless to say, that, the Administrative Officers, or the heads, of, the departments concerned, , though also likewise in the process, of, making(s),

of, orders of transfers, hence hold clout in the afore facet, yet their discretion is also enjoined, to be well regulated or well canalized, hence for,

ensuring obviation(s) of sprouting(s), of, ill occurrence(s), of, capriciousness and arbitrariness, in the exercising(s), by them, of, his/their powers, of,

transfers. Resultantly, therethrough, there would be balancing or accrual of proportionality, interse the role of elected representatives, in the running,

of, the Administration, and, of the Administrative Heads, or Administrative Officers. Necessarily, both are to be in conjunct, or are to be in the

complete synchronization, in theirs ensuring, the, operations, of, or, for, ensuring the streamlined manning(s), of, the administration, by the public

officer/officials concerned, hence on all facets, or both are to work collectively, for hence theirs ensuring qua vice(s) of arbitrariness, and,

capriciousness, rather not making their deepest percolation(s), during the collective, engagements by them, in, the processes, appertaining, to, the

exercising(s), by each of them, of powers, of, making transfer(s), of public officers/officials concerned. Dehors, the afore echoing(s), emanating from

this Court, yet makes it incumbent, upon it, to also proceed, to draw a parity, interse the judgment (supra), i.e. Rattan Chand, and especially, interse,

the factual scenario prevailing therein, vis-Ã -vis, the factual scenario prevailing hereat, for hence this Court, becoming facilitated, to, draw the

apposite, applicable hereat parity.

In judgment (supra), the therein petitioner, was working as Principal in Government, Senior Secondary School (Boys), Bilaspur, whereat a female

teacher, took to file a false and concocted complaint, encapsulating therein allegations, of hers’ becoming, harassed by the petitioner therein. The

afore complaint, was addressed to the H.P. State Commission for Women, and it was on the recommendation, of, the latter, rather for ensuring qua

the afore inquiry, becoming impartially conducted against the petitioner therein, qua the petitioner therein, became transferred, upon, a consonance

therewith, made D.O. note. The afore recommendation(s), of, the State Commission for Women, apparently, appeared to be, the, paramount or, the,

causa-causans, hence working with the authority concerned, in its making an order, of, transfer, upon the petitioner therein. It was concluded therein,

that the un-inquired into, and, un-verified complaint, as made, against the petitioner therein, could not, till its conclusion, become the valid anchor, for,

the making, of, the transfer order, and, hence, it acquired a deep tinge, of, punitiveness, and, thereupon, it being amenable, for becoming quashed. It is,

from the afore factual scenario, borne therein, that this Court would gauge the relevance, of, Annexure R-7, and, also dehors, its remaining un-verified,

whether the competent authority, could make, an order, of, transfer, upon the petitioner. The res-controversia, qua the acquisition, of, any punitive

colour, by, the impugned transfer order, or it being, the, sequel, of, colorable exercising(s), of, the apposite powers, by the authority concerned, is,

amenable for becoming rested, on the anchor, of, (a) the status, and, the influencing capacity, of, the officers concerned, to, during the subjudice

complaint, made against him or her, hence make efficacious interefence(s), therewith or tamper with the documentary evidence, hence appertaining

therewith, (b) whereupon(s) the holding, of, the impartial inquiry would become forestalled. (b) whether the subjudice or un-verified complaint, directly

appertaining to the discharge, of, her/his public duties, is, free from any element, of, moral turpitude, or, free from any element, or, stench, of, grave

mis-conduct, hence encapsulated in the relevant CCS Rules, (c) the nature, of, the complaint, inasmuch as, it appertaining to sexual offences or

offences, which are un-related to the afore, and again, whether without disturbing, the delinquent or the accused, yet an impartial inquiry or

investigation, qua therewith, being permissible, and, the permissibility and impermissibility, of, an impartial inquiry, or investigation, being made into the

apposite complaint, rather without the accused or the delinquent concerned, becoming disturbed from the station concerned, becoming anchored, upon,

an objective application, of, mind, by the authority concerned, vis-Ã -vis, the afore expostulated parameters, (e) whether the transfer from the station

concerned, of, the accused/delinquent concerned, enjoining him to join, at, a station, even remoter or more far flung, than the one wherefrom, he/she

became transferred, on the afore ground, of, an un-verified or subjudice complaint, becoming addressed to the officers concerned, or to the highest

political executive concerned.

Necessarily, only upon the afore touchstones or parameters, becoming objectively, and, with a thorough application, of, mind, becoming hence

applied, would validly mobilize, the authority concerned, to make an order, of, transfer, even, vis-Ã -vis, any un-verified complaint, or a subjudice

complaint, or hence therethrough(s) theirs purveying, a valid anchor, for, the, making(s), of, an order, of, transfer.

For applying the afore parameters, to the facts at hand, and, after distinguishing the judgment, pronounced by this Court, in Rattan Chand’s

case (supra), to the facts at hand, this Court responds to the contentions sworn, on affidavit, by the respondents, wherein echoing(s) occur, qua earlier,

to Annexure R-7, becoming addressed to the highest political executive, his committing the misdemeanor, of, insubordination. Though, the afore ill act

became condoned , yet it does, prima-facie, reflect, upon the petitioner, taking to overlook certain norms and guidelines, appertaining, to, the

assignments, of, public works, to him. However, though Annexure R-7, is, disclosed on a sworn affidavit, to be subjudice, or and awaiting verification,

thereupon, upon this Court, bearing in mind, the prima-facie, influencing capacity, of, the writ petitioner, inasmuch as, his being a Class-I Officer, and,

also his holding the records, appertaining to the contemplated against him inquiry, founded upon Annexure R-7, and, whereupon, he would obviously,

de-facilitate, the holding, of, a contemplated qua therewith, fair inquiry against him, through his, prima-facie, may be taking, to tamper with the records,

as are, in his custody, (a) thereupon(s), for obviously forestalling the afore(s), the rendition(s), of, the transfer order, hence becomes not stained with

vice(s), of, punitivness, nor its makings, is, through colourable exercising(s), of, apposite powers by the authority concerned.

Furthermore, even upon testing, the, validity, of, the impugned Annexure, vis-Ã -vis, the parameter, of, the writ petitioner, being therethrough(s)

becoming transferred to a harder or a remoter station, than the station whereat, he is nowat posted, and, whereupon(s), his transfer, may become

construable to be, dehors a subjudice complaint, borne in Annexure R-7, being processed before the highest executive authority, hence made colorably,

and, hence it acquiring a tinge, of, punitiveness, and whereupon, it would become quashed and set aside. However, when uncontrovertedly, the station,

whereto the writ petitioner, is, transferred, is not, remoter, nor is, more far flung, than the station, whereat he is nowat posted, thereupon, his transfer,

as made through the impugned transfer order, also, cannot be construed to be punitive, dehors,an incomplete or un-verified inquiry, borne in Annexure

R-7, being processed, by the authority concerned.

In summa, there is no merit in the writ petition, and it is accordingly dismissed. However, the respondents are directed to, forthwith, conclude the

inquiry.

Though, the learned counsel for the petitioner submits that the spouse, of, the latter, is, also serving under the Government of Himachal Pradesh,

and hence, upon impugned transfer order, becoming validated, thereupon the writ petitioner would be deprived of, the company of his spouse.

However, the afore can be mitigated, through the respondent also considering the posting of the spouse, of, the writ petitioner, at Rampur.

Furthermore, even if, the children, of, the writ petitioner, are, undergoing education at Kinnaur, yet they can still proceed to complete their education,

through theirs taking online classes, as during the ongoing pandemic, the imparting(s), of physical teachings to them, at the school(s)/institution(s)

concerned, are, completely paralyzed. Also, the pending application(s), if any, are also disposed of.