Tara Devi vs State Of H.P. & Others

Ajay Mohan Goel, J

By way of this petition, the petitioner is aggrieved by the order of transfer, which was issued by the competent authority (Annexure P-1), dated

19.11.2020, vide which the petitioner who was serving as Peon-cum-Chowkidar, at GDC Chopal, stands transferred to GSSs Chamair, against

vacancy in relaxation of ban on transfers with TTA.

Record demonstrates that this order was earlier assailed by the petitioner before this Court by way of CWP No.5473 of 2020, titled as Tara Devi

Versus State of H.P. & Others, which petition stood disposed by Hon’ble Division Bench of this Court, on 27.11.2020, with liberty to petitioner to

approach the competent authority by way of a representation and with further direction to the authority concerned to decide the representation as per

the transfer policy of the State in vogue.

Pursuant thereto, vide impugned order dated 31.12.2020, Director of Higher Education, Himachal Pradesh, Shimla-I has dismissed the

representation of the petitioner by holding that as the petitioner had already completed her normal tenure at the station concerned and as two persons

could not be retained against a sanctioned post, therefore, there was no merit in the representation.

Feeling aggrieved, the petitioner has approached this Court afresh.

Learned counsel for the petitioner has argued that the transfer order is not sustainable in the eyes of law, as the same stood passed when there was

a complete ban on the transfers and further the same has not been passed either on the basis of any administrative exigency or in public interest, but

solely to adjust the private respondent and that too on the basis of D.O. (Demi Official) Note. He further submits that the representation so filed by

the petitioner has also been dismissed by the authority concerned by passing a non-speaking order as the issue raised by the petitioner with regard to

her health condition in the representation has not been dealt with at all therewith.

Contesting the petition, learned Additional Advocate General has argued that as the petitioner has already completed her normal tenure of three

years at the station in issue, therefore, Director of Higher Education, Himachal Pradesh, Shimla-I has rightly rejected the representation of the

petitioner, on the ground that two persons cannot be permitted to serve against a sanctioned post. He further submits that as far as medical issues

raised by petitioner in the representation are concerned, the petitioner is always at liberty to raise these issues before the competent authority, but in

order to show her bonafide, the petitioner has at least to join at the station where she has been ordered to be transferred.

Having heard learned counsel for the parties and having perused the pleadings, this Court is of the view that as far as the arguments being raised

that the transfer of the petitioner has been passed by ignoring the ban of transfers and on the basis of D.O. Note are concerned, per se, this plea is not

available to the petitioner because when the petitioner in the initial petition filed by her agreed for a liberty being granted to her to file a representation

to the competent authority, then it is deemed that similar pleas raised by her earlier did not find favour with the Court.

Besides this, in my considered view, as the petitioner has already completed her normal tenure at a station, therefore, prima facie, the observation

made by the authority concerned while dismissing the representation of the petitioner that two persons cannot be permitted to serve against a sanction

post calls for no interference. However, there appears to be merit in the contention raised by learned counsel for the petitioner that the issues raised in

the representation with regard to the medial condition of the petitioner have not been addressed too in the order passed by Director of Higher

Education, Himachal Pradesh, Shimla-I, dated 31.12.2020, vide which the representation of the petitioner was rejected.

Therefore, in these circumstances, this petition is disposed of with the direction that respondent No.1 may explore the possibility of adjusting the

petitioner at a place where she can have recourse to medical facility, provided any such station is vacant or is likely to fall vacant in near future.

However, to show her bonafide, the petitioner will first have to join the place, she has been ordered to be posted and thereafter, she will be at liberty to

file a representation to respondent No.2 for her adjustment on medical grounds and as already observed hereinabove, such representation be

sympathetically considered and acted upon by the authority concerned. Petition stands disposed of in above terms, so also pending miscellaneous

applications, if any.

Copy dasti.