Dev Raj vs State of Himachal Pradesh and Another

V.K. Sharma, J.—The Petitioner who was posted as Principal, Government Senior Secondary School, Barota, District Bilaspur has been ordered to be transferred to Government Senior Secondary School, Ropa , District Mandi vide notification dated 1.11.2010, Annexure P-1. Being aggrieved he has filed the present petition on the following averments vide paras 4, 6 and 7:

That now by passing the impugned order the Petitioner has been transferred from Govt. Sen Sec School Barota District Bilaspur to Govt Sen Sec School Ropa Distt Mandi H. P. Vide impugned office order dated 1.11.2010 against Smt. Sushila Devi. The Respondent Sushila Devi R-2 manipulated the things and got her transfer to the Govt Sen Sec School Barota without following the principles of the transfer policy of the State. The present Petitioner has been transferred against the person who has not completed her normal tenure at Govt. Sen. Section School Ropa District Mandi. She got her self transferred with in a short span of 10 months. A copy of transfer order dated 1.11.2010 is annexed as Annexure P-1, along with its true typed copy of Annexure P-1/T.

That the Petitioner further submits that the Petitioner has been transferred in the mid academic session and the academic session will end on 31st March, 2011 and also during the ban on the transfers. The impugned order is not passed by the competent authority or not by the approval of the competent authority. The Hon''ble Supreme Court has held that in the absence of urgency such transfer restrained from being effected till the end of that academic year in Director of School Education v. O. Karuppa Thevan A copy of this Hon''ble Court on the similar facts.

That the parents of the Petitioner is in old age and the fathe4r of the Petitioner is paralytic patient and getting treatment. The wife of the Petitioner is working as Lecturer Political Science in Govt. Senior Secondary School, Bhumple, District Hamirpur and as per the police of the State says under (a) Concession regarding posting of certain categories of employees: If husband and the wife both are working in the service of H.P. Govt they may be posted at one place or near places as far as possible subject to vacancy.

On the above averments the petition has been filed on the following prayers:

a). A writ in the nature of certiorari may be issued and thereby quash the order of transfer dated 1.11.2010 Annexure P-1 or in alternative the Petitioner may kindly be allowed to continue at the present place of working till 15th April, 2010.

b). A writ in the nature of mandamus may be issued and thereby directing the Respondent No. 1 to allow the Petitioner to work in Govt. High School Barota, District Bilaspur.

c) That the Respondent may kindly be directed to transfer the Petitioner where the4 wife4 of the Petitioner is working i.e. govt. Senior Secondary School Bhumpal District Hirmarpur.

In reply on behalf of Respondent No. 1 the following stand has been taken by way of preliminary submissions 1 to 3:

That is respectfully submitted that the Petitioner was transferred from Govt. Sen. Section School Ropa, Mandi to Govt. Sen. Section School Barota, District Bilaspur vide notification No. EDN-B-B(6)-13/2009 dated 1.11.2010 vice Smt. Sushila Verma with TTA. The Respondent No. 2 Smt. Sushila Verma, Principal has joined at GSSS Barota, Bilaspur on 3.11.2010. the previous positing of the Petitioner are as under:

Sr. No. Name of the Institution From To 1. GSSS Jhandutta (BLP) August,1994 June, 2001 2. GSSS Talyana (BLP) June, 2001 June, 2003 3. GSSS Samaila ( Mandi) June, 2003 June, 2007 4. GSSS Barota (BLP) June, 2007 November, 2010

The above mentioned table shows that the Petitioner during his service career mostly remained in districts Bilaspur and Mandi at the stations of his choice. The transfer policy of the Government envisages that no Government employee can claim his transfer or posting as a matter of right. It will be the prerogative of the State Government to post/transfer any employee anywhere in the State keeping in view the administrative convenience.

That the transfer policy of the Government is in nature of executive instructions and does not confer any enforceable rights upon the claimant. Even otherwise it has been held under the jurisprudence that transfer in the public interest should not be interfered with unless there are strong and pressing rounds rendering the transfer orders illegal or an appropriate forum to decide the transfer of officer/official on administrative grounds unless malafide is proved. An order of transfer is an incident of Government service. FR-2 say that whole time Government servants at the disposal of the Government which pays them and he may be employed in any manner required by the proper authority. The present petition is devoid of merit and deserves to be dismissed in the interest of justice.

That the Dy. Director of Education Mandi has informed that the Petitioner has joined his place of posting i.e. GSSS Ropa ( Mandi) on 30.11.2010. Thus, the present petition has become infructuous.

Thus, it is manifest that since the wife of the Petitioner is also working as lecturer (Political Science) in Government Senior Secondary School, Bhumpal, District Hamirpur, it is a couple case. Admittedly, the Respondent-State has framed a transfer policy vide office memorandum dated 10th April, 2008, copy of which has been brought on record by the learned Counsel for the Petitioner. One of the Guiding Principles of this policy at serial No. 3 (a) is as follows:

3(a) Concession to couples serving under H.P. Government:

If husband and wife both are in the service of H. P. Govt., they may be posted at one place or near places asfar as possible subject to vacancy.

In view of the above the petition is disposed of with a direction to Respondent No. 1 that subject to the Petitioner making a representation along with copy of this judgment within a fortnight from today, the said Respondent shall consider the same and take a final decision in the matter in accordance with law and justice within the next fortnight in the light of the aforesaid transfer policy, after affording an opportunity of being heard to the Petitioner, if so desired.

The petition stands disposed of, so also pending CMP(s), if any.