Chander Prakash vs State Of Himachal Pradesh & Ors

Jyotsna Rewal Dua, J

Petitioner as well as respondent No. 3 are both desirous of remaining in District Kullu. In this background, their contest is around transfer orders dated 30.6.2020 and 21.7.2020.

Petitioner was posted at IPH, Division No. II, Kullu as a Draughtsman on 7.6.2018 (as per incumbency reflected in Annexure P-2). He was shifted to Jal Shakti Division (hereinafter 'JSD' in short) No. I, Kullu on 15.2.2019. On his promotion as Head Draughtsman (in short 'HDM'), petitioner on 30.6.2020 was transferred to JSD-II, Kullu. To accommodate him, private respondent No. 3 who was serving as HDM in JSD-II, Kullu, was transferred to JSD, Nurpur against vacancy. After joining of petitioner at JSD-II, Kullu on 1.7.2020, another order was passed on 21.7.2020 whereby private respondent No. 3 (under transfer to Nurpur) was allowed to remain at JSD-II, Kullu and petitioner who had joined at JSD-II, Kullu was transferred to Nurpur.

Petitioner has assailed the order dated 21.7.2020 on the ground that he had already joined at JSD-II, Kullu on 1.7.2020. Therefore, there was no rationale in transferring him again a few days later to JSD, Nurpur. The impugned order has been issued not only in violation of transfer policy but has been issued only to accommodate respondent No. 3 who has managed to remain at JSD-II, Kullu on the basis of a D.O. note.

On behalf of respondent No. 3 it has been submitted that petitioner had also managed his posting at JSD-II, Kullu on the basis of D.O. note. Respondent No. 3 had joined her duties at JSD-II, Kullu only on 13.2.2019, as such, she is yet to complete her normal tenure there.

The copies of relevant record have been made available. What emerges from the record is that even before the promotion of petitioner as HDM, a D.O. note was issued from the office of Hon'ble Minister, Jal Shakti, dated 24.6.2020 to the effect that petitioner is likely to be promoted as HDM and presently, he is serving at JSD-I, Kullu. On his promotion, he be retained at JSD-II, Kullu vice respondent No. 3. Even though petitioner asserts that he did not request for his transfer to JSD-II, Kullu and D.O. note dated 24.6.2020 had not been issued on his request. Yet from the perusal of documents it is writ large that it was on the request of the petitioner that he while serving as Draughtsman at JSD-I, Kullu on his promotion as HDM was being allowed to remain in district Kullu by adjusting him at JSD-II, Kullu. While at it, we may sound a word of caution to the concerned authorities that this Court is repeatedly coming across various D.O. notes/proposals with ambiguous wordings not clarifying at whose instance the note/proposal has been issued. For the time being, we leave it to the concerned authorities to put their house in order.

Respondent No. 3 as per her own pleaded case was posted at IPH Division-I,Kullu from July 2010 till 12.2.2019. On her promotion as HDM, she was shifted to JSD-II, Kullu on 13.2.2019. The record shows that after petitioner's transfer to her place of posting vide order dated 30.6.2020, she also obtained a D.O. note from the office of Hon'ble Chief Minister on 4.7.2020. Consequently, respondent No. 3 who was under transfer to Nurpur was allowed to remain at JSD-II, Kullu and petitioner who had joined at JSD-II, Kullu was transferred to Nurpur. No application of mind by administrative department is reflected in the records in posting of petitioner at JSD-II, Kullu in the order dated 30.6.2020 as well as in the order dated 21.7.2020 whereunder he was transferred to Nurpur and respondent No. 3 was adjusted in JSD-II, Kullu. Not only respondent No. 3 but the petitioner also despite his promotion as HDM has managed to remain in District Kullu. This is despite the fact that post of HDM is a State cadre post. It will be apt in this regard to extract relevant portion from the judgment rendered by this Court in CWP No. 511 of 2020, titled as Sheela Suryavanshi Vs. State of H.P. and others, decided on 12th August, 2020, held 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.

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 their postings in and around urban areas, leaving practically no room for the other employees.

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.

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.

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.

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 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.

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.

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."

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.

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.

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.

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'."

The factual position of the instant case is not different to the one in which the above extracted principles of law were expounded by this Court. In the instant case also, the two private parties are serving as HDM, which is a State cadre. They are liable to be posted anywhere in the State, yet their attempt is to remain posted in District Kullu. Both are beneficiaries of different D.O. notes, which have been mechanically implemented by the Department without any independent application of mind. In Sheela Suryavanshi's case (supra), it was held as under :-

"39. Granting indulgence to any of the parties in this case would be causing manifest injustice to other teachers who are desirous of serving in Shimla and other district and tehsil headquarters but have failed mainly because of the cartel formed by the influential teachers like the parties in the instant case.

x x x x x x x x x x x x x x x x x x x x x x x x x x

x x x x x x x x x x

Before parting, we hope and trust that the respondents would take all requisite steps to break the cartel and as far as possible ensure that maximum number of teachers, especially those whose children are to appear in the Board examination and examination for professional courses are afforded an opportunity to serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate band width, facility of tuition etc. are available."

Therefore, against the backdrop of observations made in Sheela Suryavanshi's case (supra) and in the given facts and circumstances of the case, we dispose of this writ petition by directing respondents No. 1 and 2 to transfer the petitioner as also respondent No. 3 outside District Kullu within a period of two weeks from today. Pending applications, if any, shall also stand disposed of.

List for compliance on 30.10.2020.