Om Prakash vs State Of Himachal Pradesh & Others

Anoop Chitkara, J

A Driver of the 1st respondent-Department, posted in Civil Hospital, Bharmour, Distt. Chamba, HP, has come up before this Court seeking his transfer from Tribal area to one of the stations of his choice in a soft area, as per clause 16.1 of the Comprehensive Guiding Principles-2013, of the transfer policy applicable in the State of Himachal Pradesh. The petitioner further claims that he is working in a tribal area right from day one of his appointment from the year 2003. However, on 6.11.2018 the 4th respondent recommended his transfer from Civil Hospital, Bharmour, Distt. Chamba to Salooni, Distt. Chamba, which was again a tribal area. Consequent upon such recommendation the 2nd respondent i.e. Director, Department of Health Services, Shimla, transferred the petitioner vide Office Order dated 4.1.2019 (Annexure P-1). Petitioner challenged such order by filing O.A. No. 86 of 2019 before the erstwhile Himachal Pradesh Administrative Tribunal, Shimla. Vide order dated 7th January, 2019 the Tribunal passed the following order:

"6. In the facts and circumstances and interest of justice the original application is disposed of with the stipulation that subject to the applicant making a detailed representation supported by documents alongwith certified copy of this order, highlighting the above aspects and with a request for cancellation of the transfer in the first instance or suitable adjustment against an existing/likely vacancy to the respondent No. 2 Director Health service Himachal Pradesh within a week from today, who shall consider and decide the same in accordance with law, sympathetically and the transfer policy framed by the State Government by 31st January, 2019 after affording an opportunity of being heard to the applicant.

As the applicant is stated to have not been relieved as on 5.1.2019 the date of institution of the original application and since it is single transfer and no one has been posted against him, he may be permitted to continue at the present place of posting in the meanwhile till decision of the representation."

Pursuant to this order passed by the Tribunal, vide order dated 14th June, 2019 (Annexure P-4) the 2nd respondent dismissed the said representation on the ground that the stations of choice mentioned by the petitioner have either no vehicle/functional vehicle or any vacancy of Driver and he also stated that the Department did not find it administratively possible to accede to petitioner's request of transfer to the station of his choice.

Now vide Office Order dated 20th August, 2020 (Annexure P-3), the petitioner has been relieved as a consequence to his previous order of transfer dated 4th January, 2019 (Annexure P-1). Challenging the relieving order (Annexure P-3) as well as the order dated 14th June, 2019 (Annexure P-4) passed by the Director, Health Services, Himachal Pradesh, the petitioner has come up before this Court.

We have heard Mr. K.B. Khajuria, learned Counsel, for the petitioner and Mr. Ajay Vaidya, learned Senior Additional Advocate General for the respondents-State.

It remains undisputed that the petitioner although hailing from tribal area is still working in a tribal area right from day one of his appointment. The transfer policy provides for people belonging to a tribal area to be adjusted outside such areas to the stations of their choice.

Therefore, we propose to dispose of this writ petition by permitting the petitioner to make a fresh representation to the respondent authorities, within two weeks, mentioning five stations of his choice where incumbents have completed their normal tenure, in accordance with the transfer policy and the respondents shall consider such request and if in any one of such stations, any person who has never worked in Hard/Difficult/Tribal area and if no such person is available then any Driver who has completed his normal tenure, then they would consider replacing such person with the petitioner. In case, in all the five stations mentioned by the petitioner, either the post of Driver is not in existence or vehicle is not available or the incumbents have not completed their normal tenure, then the 2nd respondent will apprise the petitioner about the possible place where he can be adjusted.

With the aforesaid directions, we close the present petition clarifying that subject to the petitioner making a representation within two weeks from today, the impugned order dated 20th August, 2020 (Annexure P-3) shall remain stayed till the disposal of the such representation or till consideration of such request as mentioned above. It is further clarified that the reasoning given by the 2nd respondent in his order dated 14th June, 2019 shall not come in the way while considering the request afresh. Pending application(s), if any, are also closed.

Copy Dasti.