Sh. Suresh Kumar vs State of Himachal Pradesh

Justice Dharam Chand Chaudhary, Judge

Aggrieved by his transfer from the office of Tehsildar Baddi, District Solan to the office of S.D.M. Solan vice Sh. Pola Ram, the 3rd respondent vide impugned order Annexure P-4, the petitioner has approached this Court by filing the present writ petition with the following prayers:

i) That writ in the nature of certiorari may kindly be issued and the impugned transfer order dated 3.1.2012 annexure P-4 passed by the respondent whereby the petitioner has been transferred from Tehsil Office, Baddi to SDM Office, Solan may kindly be quashed and set aside.

ii) That writ in the nature of mandamus may kindly be issued and the respondent may kindly be directed to allow the petitioner to work at his present place of posting i.e. Tehsil Office Baddi till the petitioner complete his normal tenure in the interest of justice and fair play.

Undisputedly, the petitioner was transferred from the Department of Fisheries, Kullu to the office of the 2nd respondent on 19.5.2012. He was further transferred and posted in Tehsil office, Baddi on 31st May, 2010 vide order Annexure P-1. He has again been transferred to the office of S.D.M. Solan vide impugned order dated 3rd January, 2012, Annexure P-4.

The legality and validity of the impugned order has been assailed on the grounds inter-alia that the same having been issued merely to accommodate the 3rd respondent and being contrary to the Transfer Policy, is bad in law, hence legally unsustainable.

The 3rd respondent has opted not to put in appearance, despite service and rather allowed himself to be proceeded ex-parte.

The 1st and 2nd respondents have contested the writ petition. Their defence, as emerges from the record, reads as follows:

6 (ii) That the contents of para 6(ii) of petition, are denied being frivolous. The contention of the petitioner in this para, is not liable to be taken into consideration except the plea qua present place of working. The transfer of the petitioner, has been ordered in the public interest. Apart from it, the petitioner has not elucidated the cogent reasons and urgency for retention at present place of working. The silence of the petitioner in explaining the reasons for retention at present placing of working transpires his vested interest. As a matter of fact, the petitioner intends to remain at his present place of working in arbitrary manner. The petitioner is duty bound to comply with the transfer orders.

It is in this backdrop, I have heard learned counsel on both sides and also gone through the record produced by the 2nd respondent.

There is no quarrel qua there being provision of normal tenure of three years to five years of a Government servant at a particular place of posting, prescribed in the Transfer Policy. The petitioner who was transferred and posted in Tehsil Office, Baddi, vide Annexure P-1 dated 31st May, 2010 has not yet completed even the stay of three years there. Record, no doubt, disclose that he has been transferred to district Solan on the approval of the competent authority, however, while according such approval, the competent authority had specifically directed that "order of transfer be issued, if in order". The 2nd respondent while issuing impugned order of transfer of the petitioner, however, has not taken into consideration the above direction of the competent authority qua issuance of transfer order only, if in order. When the stay of the petitioner at Baddi in January, 2012 was not complete and the competent authority by issuing the direction that the transfer may be effected only if in order had intended to take into consideration the short stay, if any, etc., it is not understandable as to how he could have been transferred. No doubt, an employee has no vested right to remain posted at one station or at a place of his choice and the employer may transfer him to any other place, however, in the exigency of service or in the larger public interest. In the case in hand, there is nothing suggestive of as to how this transfer, that too of a low paid class-IV employee, who has not yet completed normal tenure at his present place of posting is in the exigency of service in the larger public interest is, however, established on record. The petitioner has not yet completed his normal tenure at Baddi. Thus, being a low paid employee, the petitioner deserves to be allowed to complete his normal tenure at his present place of posting. The order of transfer rather seems to have been issued just to accommodate the 3rd respondent, because as per impugned order, he has been transferred without TTA and joining.

In the light of what has been stated hereinabove, the impugned order Annexure P-4, in my considered opinion, is neither legally nor factually sustainable and the same as such deserves to be quashed and set aside. In view of the above discussion, this writ petition succeeds and the same is accordingly allowed. Consequently, the impugned orders Annexure P-4 is hereby quashed and set aside. Pending application(s), if any, shall also stand disposed of.

No orders as to costs.