Tej Singh vs The Himachal Pradesh State Electricity Board Ltd. and Another

Kuldip Singh, J.—The petitioner has mainly prayed for quashing of his transfer vide Office Order No. 132 dated 04.04.2013 from Electrical Division, Shahpur to Office of CE (P&M), Shimla. The pleaded case of the petitioner is that petitioner on promotion as Senior Executive Engineer on 16.09.2010 was posted as an attached Officer (Senior Executive Engineer) in Operation Circle, Kangra, and joined as such on 17.09.2010. On 21.06.2012 in view of peculiar domestic circumstances and to mitigate the hardship, the petitioner was transferred from Kangra to Dharamshala and he joined at Dharamshala on 22.07.2012. On 02.02.2013, petitioner was transferred to Shahpur by incorrectly showing it to be a transfer on mutual basis even though petitioner had not made any request for such transfer. The petitioner, however, complied the transfer order and joined at Shahpur on 05.02.2013.

The Board again vide Office Order No. 132 dated 04.04.2013 transferred the petitioner from Electrical Division, Shahpur to the Office of Chief Engineer (P&M), Shimla, after short stay of two months at Shahpur. The transfer of petitioner from Shahpur to Shimla is unfair, unjust, illegal and arbitrary. The petitioner submitted representation dated 06.04.2013 to the Board against his transfer vide order dated 04.04.2013, but without any result. The petitioner has ultimately filed the petition assailing transfer order dated 04.04.2013.

The respondent No. 1 contested the petition by filing reply, several preliminary objections have been taken in the reply. It has been stated that petitioner belongs to the cadre of Executive Engineer (Electrical) which is a State level cadre and petitioner is holder of transferable post. The transfer policy has no statutory/binding force. The petitioner has been transferred from Shahpur to Shimla with the approval of competent authority taking into account his previous stay/posting within radius of 25 kilometres. The respondent No. 2 has joined at Shahpur on 05.04.2013 in pursuance of the transfer order. The petitioner had not relinquished the charge from Electrical Division, Shahpur, on joining of respondent No. 2 on 05.04.2013 (F.N.). As per transfer policy of the Board, the condition of any length of stay at a particular place is not applicable where transfers are required on administrative grounds in the exigencies of service. In view of order dated 09.04.2013 passed by the Court, the petitioner and respondent No. 2 had been directed to work at Shahpur till the final outcome of the petition. On merits, it has been stated that petitioner was transferred in the exigency of service after counting his previous service within radius of 25 kilometres. The petitioner for the last 13 years has served around Kangra and Dharamshala. The submission has been made for dismissal of the petition.

The respondent No. 2 has filed separate reply which is more or less on the same lines as that of respondent No. 1. It has been stated that petitioner remained posted within radius of 20 kilometres in District Kangra for more than 13 years. The petitioner has filed rejoinder to the reply of respondent No. 1 and has stated that respondent No. 2 had served in District Kangra for about 20 years from 19.09.1990 to 2010 within 20-25 kilometres except for the stay at Dhaliara which is also in District Kangra. The Board has accommodated respondent No. 2 at Shahpur on extraneous considerations and written recommendations given by a political person not connected with the affairs of the Board. It has been stated that clubbing of previous stay within 25 kilometres is illegal when there is no provision in the transfer policy for clubbing of stay within 25 kilometres. The petitioner has also filed separate rejoinder to the reply filed by respondent No. 2 and reiterated his stand taken in the petition.

We have heard learned counsel for the parties. The grievance of the petitioner, in brief, is that respondent No. 1 in order to accommodate respondent No. 2 has transferred the petitioner from Shahpur to Shimla vide Office Order No. 132 dated 04.04.2013 after his short stay at Shahpur of about two months only. It has been urged that transfer of the petitioner is in violation of transfer policy dated 29.09.2008 of respondent No. 1. On behalf of respondents, it has been contended that petitioner belongs to the cadre of Executive Engineer (Electrical) which is a State level cadre. The petitioner for the last 13 years managed his postings within 25 kilometres in District Kangra. Petitioner has been transferred vide Office Order No. 132 dated 04.04.2013 by clubbing his previous stay within 25 kilometres and, therefore, petitioner cannot take any exception to his transfer. It has also been submitted that petitioner belongs to District Kangra and as per transfer policy of respondent No. 1, petitioner being Senior Executive Engineer, he cannot be posted in his home Division. It has been submitted that respondent No. 2 had joined at Shahpur in pursuance of transfer order dated 04.04.2013 on 05.04.2013, but petitioner did not relinquish the charge at Shahpur, he filed petition in the Court in which interim order has been passed. On behalf of respondent No. 1, it has been submitted that, in these circumstances, both petitioner and respondent No. 2 have been asked to work at Shahpur till the outcome of the petition. The respondents No. 1 and 2 have urged for the dismissal of the petition.

The transfer policy of respondent No. 1, no doubt, is not statutory, but it cannot be construed as waste paper for respondent No. 1. The transfer policy has been framed by respondent No. 1 to check arbitrariness. It is not acceptable that transfer policy of respondent No. 1 is meant for violation by respondent No. 1 instead of following. The transfer policy of respondent No. 1 is very flexible, Para-1 of the policy provides that Dy. Chief Engineers/Superintending Engineers/Addl. SEs/Sr. XENs/R.Es/XENs AEE/AE/AAE/JE, should not be posted in their home Circles/Divisions/Subdivisions/Section except in Designs/Generation/Project Wings. The transfer policy at the end also provides, notwithstanding above conditions/guidelines, any officer/official may be transferred on administrative grounds/public interest/exigencies of Board''s work. The existing Standing Orders, if in contravention of above, shall stand amended accordingly.

The respondent No. 1 transferred petitioner to Shahpur vide Office Order No. 30 dated 02.02.2013 and allowed him to work there for two months. In these circumstances, it can be safely inferred that transfer of petitioner at Shahpur on 02.02.2013 was on administrative grounds, in public interest and in exigencies of Board''s work which over-rides Para-1 of the transfer policy of respondent No. 1. In these circumstances, no fault can be found with the transfer of petitioner to Shahpur even though he belongs to District Kangra.

Once, petitioner was transferred to Shahpur on 02.02.2013 and he joined there, he has legitimate expectation to serve at Shahpur for normal tenure of three years as provided in Para-17 of the transfer policy. It does not emerge from transfer order dated 04.04.2013 that petitioner has been transferred from Shahpur to Shimla on administrative grounds/public interest/exigencies of Board''s work, so as to curtail his stay of normal tenure of three years at Shahpur.

There is nothing on record for not believing the stand of petitioner that he has been transferred from Shahpur to Shimla just to accommodate respondent No. 2. The respondent No. 1 has not made out a case for transferring the petitioner from Shahpur to Shimla vide Office Order No. 132 dated 04.04.2013 within a short span of about two months of his transfer to Shahpur. The plea of respondent No. 1 of clubbing previous stay of petitioner within 25 kilometres radius is not in consonance with transfer policy of respondent No. 1. The respondents have not shown any provision for clubbing the previous stay of petitioner within 25 kilometres for transferring him from Shahpur to Shimla. The petitioner is working at Shahpur as per stand of respondent No. 1. The impugned transfer order of petitioner is not sustainable. In these circumstances, the respondent No. 2 will have to make room for petitioner at Shahpur. In view of above, petition is allowed. The Office Order No. 132 dated 04.04.2013 transferring petitioner from Electrical Division, Shahpur to Office of CE (P&M), Shimla, is quashed. The respondents are directed to allow petitioner to work at Shahpur till he is transferred in accordance with law. Pending application, if any, also stands disposed of.