Rajmati vs State of H.P.

Justice Dharam Chand Chaudhary, Judge

Aggrieved by her transfer from Govt. Sr. Sec. School, Bhangrotu, Distt. Mandi vide order dated 23.4.2012 (Annexure P-1), the petitioner has approached this Court by way of filing the present writ petition for quashing and setting-aside the same on the grounds inter alia that the same is not only illegal, arbitrary but also against the principles of natural justice. Also that she has been transferred to Dharampur merely to accommodate the 3rd respondent who allegedly managed her posting in and around her home station throughout the entire service career. Her transfer to Dharampur is stated to be in violation of the provisions contained under the transfer policy as she has been transferred from Bhangrotu, the present place of her posting well before the completion of her normal stay of three years and to a place far away from Behli, the place of posting of her husband, whereas as per the policy being a couple case she should have been transferred to a place nearby to the place of posting of her husband, if not, to the same station where presently he is posted. The factum of she having served in hard and difficult area continuously for 20 years is also not given any weightage and to the contrary shifted from the present place of her posting well before the completion of her normal tenure. Taking into consideration such contentions, following order was passed by this Court on the very first day of hearing in this writ petition:

The petitioner summits that she has worked in hard and difficult area for twenty years and thereafter only she got transferred to Bhangrotu in October, 2009. Though, it is stated that she has completed her three academic sessions, obviously, it is not true to the facts. It is pointed out that the petitioner''s husband is working at Belhi. Still further it is pointed that the third respondent had earlier served in the school for 12 years continuously and she has not even completed three years at the transferred station.

In view of the above, notice dasti to the 3rd respondent. There will be a stay of operation of Annexure P-1 for the time being. Short reply shall be filed within three weeks. Post on 18th May,2012."

The respondents-State, however, failed to file reply to the writ petition despite several opportunities including the last and final opportunity granted for the purpose.

Pursuant to the order (Annexure P-1), the 3rd respondent had relinquished the charge at Dharampur and joined her duties on 25.4.2012 i.e. well before the interim order hereinabove passed by this Court in this writ petition. In compliance with the interim order, the Principal, Govt. Sr. Sec. School, Bhangrotu had issued office order No. EDN-GSSS-B(Estt)7/2007-03 to 07 dated 2.5.2012 (Annexure P-3 in CWP No. 3188/2012) relieving thereby the 3rd respondent with the direction to report for duty in Govt. Sr. Sec. School, Dharampur till further directions of this Court in the matter.

The 3rd respondent had thus not only entered appearance in this writ petition but also challenged the aforesaid order dated 2.5.2012, whereby she was directed to report for duty to the Principal, Govt. Sr. Sec. School, Dharampur.

The case as pleaded by the 3rd respondent in reply to this writ petition and also in CWP No. 3188/2012, in nutshell is that after her appointment as Lecturer in Electronics Technology, she remained posted in District Chamba from June 1988 to June 1995. Thereafter she was transferred to Krishna Nagar (Baijnath) Distt. Kangra and remained posted there from July 1995 to 1998. In December 1998, she was transferred to Govt. Sr. Sec. School, Bhangrotu, Distt. Mandi, however, lateron in the year 2003 transferred to Govt. Sr. Sec. School, Karsog in the same district. She made a representation for cancellation of her transfer on health grounds and her transfer to Karsog was cancelled. It is in July 2009 on the transfer of the petitioner to Bhangrotu, she was transferred to Govt. Sr. Sec. School, Dalash, Distt. Kullu, being a case of vice versa transfer. Against her transfer to Dalash, she approached this Court by filing CWP No. 2606/2009 which was ordered to be treated as representation to respondent No. 1 as per the judgment dated 7.8.2009 (Annexure P-1 in CWP No. 3188/2012 preferred by her). The 1st respondent had taken a decision transferring her to Govt. Sr. Sec. School, Dharampur where she reported for duty in the year 2009. She has completed her normal tenure and the petitioner has also completed her normal tenure. Therefore, it has been urged that the order of transfer (Annexure P-1) is neither illegal nor arbitrary nor factually unsustainable. It is denied that she remained posted in and around her home town.

Taking into consideration such averments made by the 3rd respondent in reply to this writ petition as well as in CWP No. 3188/2012 filed by her against the order dated 2.5.2012, reverting her back to Dharampur, this Court had passed the following order on 4.5.2012 in CWP No. 3188/2012:

Put up with CWP No. 2961 of 2012. In the meanwhile, the petitioner may not be compelled to join the transferred station and it will be open to her to avail leave of the kind due.''

It is in view of the interim order hereinabove passed in this writ petition, the petitioner is continuing in Govt. Sr. Sec. School, Bhangrotu, whereas that in CWP No. 3188/2012 the 3rd respondent is presently on leave.

The short controversy needs adjudication in this writ petition is as to whether the transfer of the petitioner from Govt. Sr. Sec. School, Bhangrotu to Govt. Sr. Sec. School, Dharampur vide order dated 23.4.2012 (Annexure P-1) is violative of the provisions contained under the transfer policy (Annexure R-3/1) to the reply in this writ petition or not.

It is desirable to make a reference to the policy for transfer of teachers in Education Department (Annexure R-3/1) framed by the respondents-State. The aim of the policy enshrined under Clause-2 thereof reads as under:-

Aim of Policy:

The new policy aims to achieve the following objectives:-

� To ensure availability of teachers during the academic session.

� To ensure availability of teachers in the educational institutions situated in rural, hard, difficult and tribal areas.

� To facilitate appropriate deployment of teachers in the educational institutions.

The provision qua normal stay at a place in Clause 3 relevant for disposal of this writ petition also reads as under:-

Normal Stay at a Place:Normal posting period of all categories of teachers will be three academic years, however, this will be subject to continued good performance and administrative requirements. The normal stay in case of first appointments in tribal, difficult, hard and rural areas shall be five years.

No government employee can claim his transfer of posting as a matter of right. It will be the prerogative of the state government to post/transfer any employee anywhere in the State keeping in view the administrative convenience or exigencies of service."

Further, provision under Clause 9(a) relevant to be referred here reads as under:-

(a) Concession to couples serving under H.P. Government:

In case of couples serving the State Govt. the department will make efforts to accommodate either spouse at the same/nearby place in rural areas only, subject to availability of suitable vacancy.

If adverting to the law applicable in a case of this nature, the same has been discussed by the learned Single Judge of this Court in Satish Kumar vs. State of H.P. & Ors. (CWP No. 4392/2011) decided on 15.10.2011. The learned Single Judge after taking note of the law laid down by the Hon''ble Supreme Court has held as under:-

From a reading of the judgments of the Apex Court it is apparent that a government servant cannot urge that once he has been posted and appointed in a particular place he should continue in such a place as long as he desires. Transfer is part and parcel of service and unless the order of transfer is shown to be a mala fide or violative of any statutory provisions such as an Act or Rule or passed by an authority not competent to do so it should not be normally interfered with by the High Court. The Apex Court in no uncertain terms held that administrative guidelines or policies adopted for regular transfer may at best give an opportunity to the government servant to approach the higher authorities for redressal of his/their grievance(s), but they do not give the employee any legal right to claim relief under Article 226 of the Constitution of India. The Apex Court in no uncertain terms has laid down that the Courts should not act as Appellate Authorities over such orders and the Courts cannot substitute their decision in the matter of transfer for that of the competent authorities.

If analyzing critically the facts and circumstances of this case vis-�-vis the law laid down by the Hon''ble Apex Court and also by this Court as well as various provisions under the transfer policy quoted hereinabove, the petitioner admittedly is continuing in Govt. Sr. Sec. School, Bhangrotu since October 2009, likewise the 3rd respondent is also continuing in Govt. Sr. Sec. School, Dharampur from the year 2009. No doubt either of them has not completed the normal tenure of three years so far, however, nearer to complete the same. The stay of either parties at their respective places of posting at the time of ordering their transfer was in the mind of the respondent-state as it has been mentioned in the office order (Annexure P-1), that they both have completed three academic sessions at their respective places of posting. Although in the transfer policy (Annexure R-3/1), there is no reference as to whether a teacher can be transferred on completion of three academic sessions, yet this Court is of the considered opinion that completion of three academic sessions by a teacher in a particular school can reasonably be taken as three years or his/her normal stay in that school. Otherwise also the petitioner is nearer to complete the normal tenure of three years at Govt. Sr. Sec. School, Bhangrotu. Hence, on this score the impugned order cannot be termed to be illegal or arbitrary or violative of the provisions contained under the transfer policy.

True it is that being a couple case she and her husband are required to be considered for posting preferably at the same station and if not possible to do so, at a nearby place. It is, however, not her case that Govt. Sr. Sec. School, Bhangrotu is nearer to the place of posting of her husband i.e. Behli, which according to her is a hard area. No doubt her grouse that she should have been transferred and posted to a place of posting of her husband, carries considerable post and this Court expects from the respondent-State to consider this aspect of her case sympathetically being covered under the transfer policy. However, on this score the contention that her transfer from Bhangrotu, the present place of her posting is not legally and factually sustainable, cannot be believed to be true by any stretch of imagination for the reason that she has now almost completed her normal stay at Bhangrotu, hence, in view of the ratio of the judgment cited supra she has no legal right to continue any further in the said school.

There is no quarrel so as to right from her initial appointment as Lecturer in Electronics Technology in the year 1989, the petitioner remained posted as such in Govt. Sr. Sec. School, Dalash till October 2009 i.e. 20 years. It is, however, difficult to believe that Dalash is a hard area because in terms of the general transfer policy circulated by the Department of Personnel, Govt. of Himachal Pradesh vide Office Memorandum No. Per(AP-B)B(7)1/2008 dated 10th April, 2008, it is Pandrah Bis Pargana of Kullu District which falls under the definition of hard area. The petitioner has not brought anything on record suggesting that Dalash is a part and parcel of Pandrah Bis Pargana of Kullu District. Otherwise also nothing suggesting has come on record that she had to over stay at Dalash on account of exigency of service or in the public interest or compelled to over stay there by the respondents-state. Rather it seems that she served Govt. Sr. Sec. School, Dalash for 20 years voluntarily and at her own sweet will and not under any compulsion or exigency of service. On the other hand, the petitioner is not justified in claiming that the 3rd respondent throughout remained posted in and around her native place for the reason that the said respondent started her service career in the year 1988 from Chamba and remained posted there till 1995. Thereafter she remained posted at Krishna Nagar (Baijnath), Distt. Kangra since July 1995 to December 1998. It is no doubt thereafter she remained posted at Govt. Sr. Sec. School, Bhangrotu till July 2009. When pursuant to the judgment of this Court passed in CWP No. 2606/2009 (Annexure P-1 in CWP No. 3188/2012), the 1st respondent while accepting the representation she made had ordered to adjust her in Govt. Sr. Sec. School, Dharampur and cancelled her transfer to Govt. Sr. Sec. School, Dalash, where she was ordered to be posted vice the petitioner. In such a situation the previous stay of 10-11 years of the 3rd respondent in Govt. Sr. Sec. School, Bhangrotu do not come in any manner whatsoever in her way for being posted in this school nor the same can be interpreted to arrive at a conclusion that she is now debarred from being posted there.

Even the balance of convenience and equity also leans in favour of the 3rd respondent for the reason that she is unmarried and even suffering from serious disease and had undergone major surgery of "Abdominal Myomectomy" on 5.5.2007. In support of this part of her case, she has placed on record medical record pertaining to her ailment (Annexure P-4 in CWP No. 3188/2012). The another difficulty is that her father has undergone heart surgery and the mother is suffering from "Ostero Arthritis", however, not of much help to her case because every body have such difficulties and even the petitioner as per the averments in the writ petition is also looking after her grand mother-in-law besides her father-in-law and mother-in-law. Any how on equity also the respondent who is unmarried and has undergone major surgery has a good case as compared to the petitioner for the reason that she needs medical aid which no doubt is better at Bhangrotu, a place about 10-12 kms. from Headquarters of District Mandi, whereas Dharampur is not only a remote area but about 100 kms. away from there.

Not only this but on her transfer to Govt. Sr. Sec. School, Bhangrotu vide Office Order (Annexure P-1), the 3rd respondent was relieved from Govt. Sr. Sec. School, Dharampur, her previous place of posting and she had reported for duties to the Principal, Govt. Sr. Sec. School, Bhangrotu on 25.4.2012 as is evident from office order (Annexure P-3 in CWP No. 3188/2012). She has also shifted her luggage and other household articles from Dharampur. No doubt she had joined her duties at Bhangrotu on 25.4.2012 i.e. well before the interim order staying the operation of the impugned order (Annexure P-1) was passed by this Court on 27.4.2012 and pursuant to the interim order vide office order dated 2.5.2012 (Annexure P-3 in CWP No. 3188/2012), she has been directed to report for duty to the Principal, Govt. Sr. Sec. School, Dharampur. However, in the light of what has been stated hereinabove, the order (Annexure P-3 in CWP No. 3188/2012 she filed), is not only harsh but oppressive also, because when she had already completed three academic sessions there. Otherwise also this Court vide interim order dated 4.5.2012 passed in CWP No. 3188/2012 she filed had directed the respondents not to compel her to join her duties at Dharampur and to avail leave of the kind due. The order (Annexure P-3 in CWP No. 3188/2012) being legally and factually unsustainable deserves to be quashed and set aside.

In view of all the reasons hereinabove, this writ petition fails and is accordingly dismissed, however, without any prejudice to the liberty of the petitioner to approach the 1st respondent by way of representation for her transfer and posting either at the place of posting of her husband or any other place nearer to the place of his posting being a couple case and it is expected from the said respondent to consider the representation if so made by the petitioner sympathetically and pass an appropriate order thereon qua her adjustment appropriately nearer to the place of posting of her husband.

Pending application(s), if any, also stands disposed of. The Registry is directed to place a copy of this judgment on the record of CWP No. 3188/2012.