Madhu Deshta vs State of H.P. and Others

Surinder Singh, J.—Petitioner and private Respondent No. 4 are the lecturers (Political Science) in the Education Department of the State of H.P., which is a State cadre. Petitioner has felt aggrieved by the order of her transfer issued on 31st August, 2010 (Annexure P2) whereby she has been transferred from Government Senior Secondary School Beolia (Shimla) to Government Senior Secondary School Chail (Solan) in place of private Respondent Smt. Kusum Lata, within a period of 5 months. Thus, by means of this petition under Article 226 of the Constitution of India sought the following reliefs:

(a) To issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 31.8.2010 being Annexure P2 of the writ petition, as unconstitutional and illegal and contrary to the law;

(b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the Respondent department to allow the Petitioner to complete normal tenure of 3 to 5 years at present place of posting;

(c) To issue an appropriate writ, order or direction in nature thereof to give full justice to the Petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon''ble Court may deem fit, proper, just and expedient in the circumstances of the case;

Respondent Smt.Kusam Lata remained posted at Government Senior Secondary School (GSSS) Totu (SML), GSSS Pahal (SML), GSSS Dhalli (SML), GSSS Chhota Shimla (SML) and on promotion GSSS, Chail merely for one month w.e.f. 21st July, 2010 to 30th August, 2010 when the impugned order of transfer was passed after condoning the short-stay on medical grounds.

Whereas, Petitioner also remained posted in GSSS Sanjauli w.e.f. 15.10.1999 to 15.9.2004, in GSSS Theog Shimla w.e.f. 16.9.2004 to 31.5.2005,(only for seven months) GSSS Sanjauli Shimla, w.e.f. 31.4.2005 to 3.3.2010 and in GSSS Beolia Shimla w.e.f. 4.3.2010, till the date of the passing of the impugned order, i.e. her stay in and around Shimla has been more than 5 years.

The Additional Secretary vide letter No. 0592087 dated 25th August, 2010 No. Secy/CM-E0302/2007-DEP-C-243473 conveyed the approval of the Hon''ble Chief Minister with respect to private Respondent qua her transfer to GSSS Beolia in place of Petitioner in the following terms:

Smt. Kusam Lata Lect. Pol. Science may be transferred without TTA and in condonation of short stay on medical grounds from GSSS Chail Distt. Solan to GSSS Behulia, Distt. Shimla against the incumbent having completed their stay or against other incumbent having longer stay in Shimla proper/complex (Medical documents enclosed).

The Respondent-Director was requested to take necessary action accordingly. On receiving the said letter, the Dealing hand recommended the name of Petitioner indicating that she has a longest stay at Shimla and was working at Government Senior Secondary School Beolia (Shimla). Further he is stated to have submitted the list of incumbents working in and around Shimla, who were having short stay than the Petitioner. Respondent-Director appears to have approved the note to give effect to the letter received from the office of Hon''ble Chief Minister.

According to the learned Counsel for the Petitioner, one Smt. Asha Kapta (GSSS Chhota Shimla), Shri Kamlesh Sharma (GSSS Sanjauli), Narender Sharma (GSSS Sanjauli Shimla), Jagmohan Machhan (GSSS Lalpani) and Naresh (GSSS Lalpani) were having longer stay than the Petitioner but their names did not find mention in the list which was submitted for consideration and were withheld, with ulterior motives, and a lop-sided view was projected, which caused prejudice to the case of the Petitioner.

Learned Counsel for the Respondents also submitted that no representation was made by the private Respondent to the Hon''ble Chief Minister about her transfer but in the reply-affidavit, it is stated that the mother-in-law of the Respondent No. 4 Smt. Kusam Lata might have represented for her transfer.

In view of the above facts, it is clear on record that there is no representation of Respondent No. 4 to the competent authority of her Department for her transfer from GSSS Chail to GSSS Beolia; nor she could have made it directly to the Hon''ble Chief Minister. In Sant Ram Pant Vs. State of H.P. and Others, wherein the Division Bench of which I was also a member, observed:

In the present case, there is no representation of Respondent No. 3 on record. He made no representation to his own Department. We are clearly of the view that if an employee is aggrieved by any action taken by the Department, his remedy is to approach the Department itself. The Conduct Rules clearly lay down that an employee can only make a representation to his own department that too by following the proper channel. He cannot directly approach the office of the Hon''ble Chief Minister or any other authority except his own administrative department. No employee has the right to approach a political representative for redressal of his grievances relating to his service conditions. This would amount to mis-conduct. Even if the decision with regard to the cancellation of transfer has to be taken at the level of the Hon''ble Chief Minister, the same should be taken after ascertaining the views of the administrative department. In Sushila Sharma''s case, we had clearly laid down that transfer orders should not be cancelled without making reference to the administrative department and giving it an opportunity to put-forth its views. This is necessary because the administrative department can then put-forth its view supported with reasons as to whether the order of transfer should be cancelled or not. Even if such guidelines have not been incorporated in the Policy we hereby direct that the said procedure should be followed in future.

We may clarify that the public representatives have a right to complain against the working of any public servant. Even when a public representative or political functionary makes some complaint against a public servant and requests that he be transferred then also the views of the administrative department concerned must be ascertained. We are also of the considered opinion that though a public representative can make a complaint against a particular employee, he cannot suggest the name of any particular employee who should be brought in his place. This is a matter for the administrative department to decide keeping in the view the administrative exigencies and public interest.

It is clear from the record that none of the parties had applied for the transfer. Petitioner is a permanent resident of Sanjauli Shimla and Respondent No. 4 Kusam Lata of Government Colony Kasumpti Shimla, i.e., within the Town. No public servant has a right to remain posted at one place. Transfer is an exigency of service.

The State Government has framed guiding principles for effecting transfer of the State Government employees. In absence of any representation by the private Respondent to her department such an order could not have been passed on the basis of the letter received from the office of the Chief Minister that too on the representation of somebody else, which is also wrong and illegal as not being in conformity with the judgment passed by this Court referred to above.

Therefore, the impugned order Ext. P2 dated 30.8.2010 of transfer is set aside. As a consequence thereof, it shall be open to the Petitioner as well as Respondent No. 4 to make a proper representation through proper channel to the Respondent-Director on or before 8.11.2010, which shall be decided by the Respondent-Director considering the representation of both the parties alongwith the cases of other incumbents having a longer stay in and around Shimla, keeping guiding principles for effecting transfers in view, which are in vogue and also with respect to the release of the pay to the Petitioner as well as Respondent No. 4, by a detailed speaking order on or before 16.11.2010. Till then order dated 3.9.2010, passed by the Division Bench of this Court shall remain in force and shall automatically come to an end on 17.11.2010.

The matter disposed of.