Gajender Dutt vs State of H.P. and Others

Kuldip Singh, J.—The Petitioner has prayed for quashing of office order dated 13.5.2011 transferring him from Dhillon (DMP) to Sanech (KGT) with further direction to Respondents to allow the Petitioner to complete his tenure of three years at the present place of posting.

The facts in brief are that Petitioner had joined the Respondent-department on 20.3.1997 on contract basis and his services were regularized in the year 2006. The Petitioner was transferred to Dhillon (DMP) on 30.12.2009 under rationalisation policy of the department. The Petitioner vide memo dated 30.4.2011 was transferred from his present place of posting to Government Primary School, Ben-Ki-Pukhar, but no vacancy existed in that school. In these circumstances, the matter was required to be referred back to the competent authority, but without referring the matter to the competent authority, the department vide office order dated 13.5.2011 modified the earlier transfer order of the Petitioner and he has been ordered to be transferred in place of Respondent No. 4 at a distance of about 35 kilometers. Once Respondent No. 4 was transferred, she ought to have joined at transferred place but Respondents accommodated Respondent No. 4 and gave premium to Respondent No. 4 for disobeying the order of her transfer.

The wife of the Petitioner is also serving in the education department and is posted at Government Middle School, Dharanji a nearby place, as per policy the Respondent- department is required to take into consideration couple case by accommodating the Petitioner and his wife at nearby place. The place where the Petitioner has now been transferred is not convenient. The Respondent-department has transferred the Petitioner to accommodate Respondent No. 4.

The petition has been contested by Respondents No. 1 to 3 by filing reply. It has been stated that Petitioner is a JBT teacher, who has district cadre. The Petitioner can be transferred anywhere within the district. There is no malafide intention on the part of the Respondents to transfer the Petitioner from Government Primary School, Dhillon to Govt. Primary School, Sanech, but the same has been made with the prior approval of the competent authority by clubbing his stay within 15 kilometers. It has been stated that as per information received from Dy. Director of Elementary Education, the Petitioner had been serving within the radius of 15 kilometers for the last 14 years, the detail of stations where the Petitioner as well as Respondent No. 4 had served has been given as follows:

Petitioner

Sr. No. Name of School

Period

Govt. Primary School, Galyana

20.3.1997 to 19.3.1999

Govt. Primary School, Dhillon

22.3.1999 to 4.10.2006

Govt. Primary School, Kado

4.10.2006 to 30.12.2009

Govt. Pry. School, Dhillo

31.12.2009 till date

Respondent

Sr. No. Name of School

Period

Govt. Primary School, Bhojnagar

3.6.1999 to 17.5.2005

Govt. Primary School, Barog

17.5.2009 to 21.6.2008.

Govt. Primary School,Saproon

21.6.2008 to 13.5.2011.

Govt. Pry. School, Dhillo

16.5.2011 to 9.6.2011.

The Petitioner as well as Respondent No. 4 remained posted within the radius of 16 kilometers for the last 12 and 14 years respectively. The transfer cannot be claimed as a matter of right. The transfer has not affected the status, pay, seniority and condition of service of the Petitioner.

The Respondent No. 4 has filed separate reply and has stated that she was adjusted at Dhillon only after the Petitioner was transferred from Dhillon to Ben-Ki-Pukhar on 30.4.2011, but she was permitted to join at Govt. Primary School, Dhillon on 16.5.2011. The Petitioner is an influential person and is involved in union activities, he managed to avoid being relieved from Govt. Primary School, Dhillon. The Respondent No. 4 has further stated that she had been transferred to Govt. Primary School, Sanech to accommodate Monika Sharma, who has been transferred out of Govt. Primary School, Sanech. Monika Sharma has been transferred to Govt. Primary School, Saproon in place of Respondent No. 4, who has been adjusted at Govt. Primary School, Dhillon in place of Petitioner. The Govt. Primary School, Sanech is situated about 21/2 to 3 kilometers above the motorable road and the path to the same is through a thick forest, therefore, Respondent No. 4 had requested for change of transferred station and she was posted at Govt. Primary School, Dhillon in place of the Petitioner, who had been ordered to be transferred to Govt. Primary School, Ben-Ki-Pukhar. The Petitioner managed to ensure that someone else joined at Ben-Ki-Pukhar and thereby managed cancellation of his transfer orders. The Respondent No. 4 has opposed the petition and prayed for its dismissal.

I have heard the learned Counsel for the parties. On behalf of the Petitioner, it has been contended that Respondent No. 3 has erred in transferring the Petitioner from Dhillon (DMP) to Sanesh (KGT) vide office order dated 13.5.2011. It has been submitted that if difficulty had come in implementing order dated 30.4.2011 Annexure P-1, then proper course was to refer back the matter, but Respondent No. 3 of his own issued the office order dated 13.5.2011. It has been submitted that as per judgment dated 6.9.2010 in COPC No. 180 of 2010, a teacher once posted at a place should be allowed to say at-least for three academic years. The Respondents have not taken into consideration couple case of the Petitioner and the transfer order is illegal.

On behalf of the Respondents, it has been submitted that no malafide has been alleged against any particular individual in the petition. The transfer is a incidence of service. The Petitioner has no right to be posted at place of his choice. The Petitioner for the last about 14 years had been serving within the radius of 16 kilometers. The Petitioner is JBT and can be posted within the district at any place. The transfer of the Petitioner has not affected his seniority, pay and any other condition of service. The wife of the Petitioner is not posted in the same school from where the Petitioner has been transferred. The couple case does not mean that every time both husband and wife are to be posted at a place of their choice. The learned Counsel for Respondent No. 4 has additionally submitted that Petitioner is an influential union leader. He managed his posting.

On 30.4.2011, the Petitioner was transferred from GPS Dhillon to GPS Ben-Ki-Pukhar and Smt. Meenakshi from GPS, Saproon to GPS Sanech. According to Petitioner, the transfer order dated 30.4.2011 could not be implemented for want of vacancy at Ben-Ki-Pukhar. There is no substance in the submission of learned Counsel for the Petitioner that office order dated 13.5.2011 is illegal on the ground that matter should have been referred back for want of implementation of order dated 30.4.2011. The perusal of office order dated 13.5.2011 reveals that said order has been passed with the prior approval of the government, which was conveyed by the Director of Elementary Education to Dy. Director of Elementary Education. In this context, no fault can be found with the office order dated 13.5.2011. In judgment dated 6.9.2010 in COPC No. 180 of 2010 observation has been made that department should ensure that teacher once posted at a place should remain there at-least for three academic years.

In the present case, as per the reply of Respondents No. 1 to 3, the Petitioner had been serving within the radius of 16 kilometers for the last 14 years. Thus in substance, the Petitioner is serving in a very narrow radius of 16 kilometers for the last 14 years, he has no right to remain within the radius of 16 kilometers for a indefinite period. In these circumstances, Judgment dated 6.9.2010 is of no help to the petititioner. The transfer is an incidence of service and Petitioner as a matter of right cannot demand posting at a particular place. No malafide has been alleged against particular individual in the petition.

No doubt, Respondent is also serving within the radius of small area for several years, but Petitioner has approached the court, therefore, Petitioner is required to establish the well known parameters for granting the relief in transfer matter. The service condition of the Petitioner has not been changed due to transfer order. There is no merit in the petition, which is dismissed. The interim orders passed from time to time shall stand vacated.