Kamla Devi vs State Of Himachal Pradesh And Others

Ranjan Sharma, J

Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No.1 to 4.

With the consent of the appearing parties, the instant writ petition is taken up for disposal, at this stage, in view of the orders intended to be passed herein.

The petitioner, a Peon-cum-Chowkidar, has come up before this Court with the following prayers:-

“(i) That the transfer order dated 20.11.2023 i.e. Annexure P-1 may kindly be quashed and set aside, in the interest of justice.

(ii) That the respondents may kindly be directed to allow the petitioner to complete her left out service at GHS Paneli u/c GSSS Bechar-ka-bag, Distt. Sirmour, H.P. till the date of her retirement i.e. 31.12.2024.

(iii) That the record of the case may kindly be called for and after persuing the same Annexure P-1 may kindly be quashed and set aside.”

The brief facts are that the petitioner joined service as Water Carrier in the year 1997 under the respondents-State in District Sirmour, Himachal Pradesh. She was promoted as Whole Time Contingent Paid Employee in 2009. Thereafter, the petitioner was promoted to the post of Peon-cum-Chowkidar by the respondents-State in District Sirmour, in the year 2012. The petitioner is presently working as Peon-cum-Chowkidar (Class-IV Employee) at GHS Paneli (sic Paniyali) under Complex GSSS Bechar-Ka-Bag in Tehsil Dadahu, District Sirmour, since 2020.

Now, the grievance of the petitioner is that respondent No.2-Director, Higher Education, Himachal Pradesh, has issued an order conveying the approval for transferring the petitioner on 20th November, 2023, Annexure P-1, from GHS Paneli (sic Paniyali) under Complex GSSS Bechar-Ka-Bag in Tehsil Dadahu, District Sirmour.

Private respondent No.5 has been transferred in place of the petitioner.

The petitioner has assailed the orders dated 20th November, 2023, Annexure P-1, transferring her from GHS Paneli (sic Paniyali) to GHS Badol, under complex GSSS Korag, Tehsil Sangrah, District Sirmour, on the ground (i) that the petitioner is widow and in terms of Clause 5.1 of the Transfer Policy, the widow employees are not to be posted in difficult/hard/tribal area.; (ii) the petitioner is due for retirement after about one year and one month, i.e. 31st December, 2024 and keeping in view the fact that the petitioner is a Class-IV employee, the transfer without considering her for posting at a convenient station, is violative of Clause 5.5 of the Transfer Policy; (iii) the transfer, as per averments made in Para-5 of the writ petition, has allegedly been made on the basis of a DO Note given by Local MLA and, therefore, the transfer is alleged to be based on extraneous considerations; (iv) the transfer order does not reflect any public interest and administrative exigencies; and (v) the transfer has visited the petitioner with hardships, as referred to in Para-9 of the writ petition, which are also borne out from the medical certificates, Annexure P-2 (colly)

Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that the petitioner has completed her normal tenure at the present station and she has neither any fundamental right nor locus standi to claim posting at a particular station, or the station of her choice.

Be that as it may, this court is of the view that once the State Authorities have issued the Transfer Policy, providing for concessions as applicable, in this case, under Clauses 5.1 and 5.5 of the Transfer Norms then, the respondents-State are bound to consider the grievances or the case of the petitioner for posting in terms of the aforesaid norms. Moreover, once the Transfer Policy or the norms exist(s) then, the legitimate expectation arises in favour of an employee to seek consideration in terms of the norms or provisions in the Transfer Policy. The impugned orders do not reflect anything as to whether the respondents-State have considered the case of the petitioner in terms of Clauses 5.1 and 5.5 of the Transfer Policy, referred to above.

Under these circumstances and keeping in view the above factual position, the petitioner is permitted to make a representation to respondent No.2-Director, Higher Education, Himachal Pradesh, within two weeks from today. In case, any such representation is made, the aforesaid respondent is directed to consider/examine the representation [in light of Clauses 5.1 and 5.5 of the Transfer Policy, including the mandate of law that the transfer ipso-facto on the basis of DO Note cannot sustain] and to pass appropriate orders within four weeks thereafter.

Mr. Piyush Dhanotia, learned counsel for the petitioner, states that since the petitioner continued to work at the present station, i.e. GHS Paneli (sic Paniyali) as on the date of filing of the writ petition [i.e. 12.12.2023], therefore, this Court is inclined to grant interim protection to the petitioner.

Accordingly, the order of transfer dated 20th November, 2023, Annexure P-1, transferring the petitioner from GHS Paneli (sic Paniyali) to GHS Badol, shall remain stayed, qua the petitioner, till decision of the representation.

Needless to say that, this Court has not adverted to the merits of the matter and all questions of facts and law are left open.

In the aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.