Naresh Chand Sharma vs State of Himachal Pradesh

Deepak Gupta, J.—The petitioner, by means of this petition, has challenged his transfer from IPH Division Pooh to IPH Division Nauhradhar. The petitioner was appointed as Junior Draughtsman in Paonta Sahib in the year 1997. In the year 2001, he was posted at IPH Division, Nahan. In the year 2004, he was posted at IPH Division Solan. In the year 2006, he was again transferred from IPH Division Solan to IPH Circle Nahan and finally to IPH Division Pooh on 15.09.2009. The petitioner served there for two years and on 05.12.2011 made a representation that he may be transferred to one of the stations of his choice after completing two winters and three summers in hard/tribal area. Thereafter, the petitioner was ordered to be transferred vide order dated 26.03.2012. He has been transferred from IPH Division Pooh to IPH Division Nauhradhar, which is again a more remote area of District Sirmaur.

The case of the petitioner is that keeping in view the transfer policy, he should have been given a station of his choice. We are aware that the transfer policy is only a guideline and has no statutory force. At the same time, if the guidelines can be followed, they must be followed, but if it is only when there are no vacancies that a person who has been transferred from a tribal area may not be given the station of his choice. This does not mean that the people, who have managed to remain at favourable stations should not be disturbed to accommodate those who are coming in their home areas.

On 27th June, 2012, this Court passed the following order:

Issue notices to the respondents returnable for 17th July, 2012. Mr. Vivek Singh Thakur, learned Additional Advocate General, waives service of notices on behalf of the respondents. Reply be the next date. Alongwith reply, respondent No. 3 shall annex the chart depicting the stay of the various Junior Draughtsmen in Nahan Circle.

The reply has been filed and the chart annexed with the reply shockingly reveals that some persons have managed to stay between Paonta and Nahan for almost their entire service careers. We, at this stage, are not going into the question as to which employee had stayed longer at Nahan or Paonta, but we are clearly of the view that the State being a model employer must treat all its employees even handedly. The State cannot, on the one hand, have employees who are treated so favourably that they are never transferred to hard/tribal areas and despite that, are not even sent to the difficult areas in their Districts, but are retained in the main towns of the District and on the other hand, have employees who from tribal areas are posted to remote areas.

The main towns in District Sirmaur are Nahan and Paonta and a number of officials, such as, Shri Dinesh Gupta, Shri Sanjay Kaushik, Shri Sita Ram, Shri Sandeep Mamgin, have virtually shuttled between Nahan and Paonta. As far as Shri Sandeep Mamgin is concerned, though he was transferred to Nauradhar in February 2012, he was again transferred to Paonta within a month or so. Shri Pawan Kumar, who though had spent some time at Indora, has remained posted in Nahan and Paonta since the year 2003.

We, therefore, dispose of this writ petition with the following directions:

That the petitioner shall be posted in IPH Division Nahan in any of the circles falling therein and the respondents shall ensure that some person, who has never served in the difficult areas and has longest tenure in Nahan/Paonta Sahib is posted at Nauradhar. We may again emphasize that it is the duty of the senior officials to ensure that all employees in turn are posted to tribal areas and also sent to the difficult areas. We do not like to interfere in administrative matters, such as transfers, but are compelled to do so when wee find that people, who have transferred to different places and who have obeyed transfer orders are always the sufferers and those who wield influence of any kind, manage to stay at one place.

We direct the Principal Secretary (I&PH) to the Government of Himachal Pradesh to ensure that in the Department of I&PH, a data base is set up wherein the details of all the employees showing their various places of posting from the day they are inducted into service is reflected. In the same data base it shall also be clearly reflected whether the employee has served in a tribal area or not. It will also be clearly indicated whether the offices in which the employees have been posted are within 25 Kms from the periphery of urban area in case of committee area and 15 Kms from the periphery of Nagar Panchayat areas. The policy framed by the Government itself envisages that all employees must by turn be sent to tribal area and hard area. Therefore, unless there are some exceptional compelling circumstances every employee must serve in the tribal area and in the hard area. At the same time, we cannot compel people, who do not know people in power, to serve for long periods in tribal areas. Our experience has been that when employees join duty in tribal areas, it becomes virtually impossible for them to get transferred back out of such tribal areas. It is the duty of the State to ensure that employees, who have served in the tribal areas for two winters and three summers in terms of the policy, are brought back and some other person is posted in their place.

The department should ensure that when transfers are made, the record in the data base is looked into. The employees who have served in tribal / hard areas or other remote and rural areas are not again sent to these areas but there should be a continuous process of change whereby all employees have a chance to serve in urban /tribal/hard areas and remote/rural areas. The department and, in fact, the State may consider categorizing the various stations in different categories, e.g. categories A, B, C and D. The State should categorize all the places where employees can be posted in different categories. The State can have four or more categories as it deems fit. The categorization will be from the most easy stations i.e. urban areas like Shimla, Dharamshala, Mandi etc. which may fall in category A and the lowest category will be of the most difficult station in the remote corners of the State such as Pangi, Dodra Kawar, Spiti etc. The home town or area adjoining to home town of the employee can also be categorized in category A or at least in a category higher than the category in which it would normally fall. For example, if an employee belongs to Ghumarwin which may have been categorized in category B but if the employee belongs to the area of Ghumarwin for his purpose, the posting in Ghumarwin will be deemed to be in Category A. After the categorization of the stations into different categories the entries shall be made in the data base as to in which category of station(s) a particular employee has spent his entire service. Efforts will be made to ensure that every employee serves in every category of station. Therefore, if the State decides to have four categories of station, every employee would serve in all the four categories of station. There may be exceptions in some special hard cases but in such cases specific reasoned order must be passed why the policy is not being followed. The State should ensure that the transfers are made in such a fashion that every time a transfer is made, an employee shifts from the category of station either upwards or downwards to the other category depending on where he has rendered service earlier. In case such a policy is followed which is based on objective criteria, there will be no scope for adjusting the favourites at a chosen station and all the employees would be treated equally. This will avoid heartburn amongst the employees and all employees will get equal opportunity to serve in different types of areas. We, therefore, direct the State to make amendments in the transfer policy in the line of the observations made hereinabove. The problem arises when a policy of pick and choose is applied while posting people. If a fair system is followed then there will be no problem in implementing the policy. Unfortunately, whenever transfers are ordered people intervene and try to get the transfer orders cancelled. These transfer orders are being cancelled without making reference to the administrative department as per the directions which have been specifically given by this Court.

The writ petition is allowed in the aforesaid terms. We direct the respondents to ensure that the petitioner is posted either at Nahan or at Paonta Sahib within three weeks from today. No costs. The Registrar General is directed to send a copy of this judgment to the Engineer-in-Chief (I&PH) as well as Principal Secretary (I&PH) to the Government of Himachal Pradesh. The Principal Secretary (I&PH) to the Government of Himachal Pradesh shall file his affidavit on or before 31st October, 2012 informing us whether a policy, in line of the observations made hereinabove, is formulated or not. If not, he will spell out the reasons for the same. For this purpose alone, the matter shall be listed on 5th November, 2012.