Ved Prakash vs State Of H.P. & Others

Chander Bhusan Barowalia, J

The present writ petition under Article 226 of the Constitution of India is maintained by the petitioner against the respondents praying therein for the following substantive relief:­

(i) "That in view of the facts and circumstances mentioned hereinabove in this writ petition, the writ petition may kindly be ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ allowed and the impugned order dated 17.3.2021 may kindly be quashed and set aside."

As per the petitioner, he joined the respondent­ department as TGT(A) in the year 1997 and served the various places wherever he was posted by the respondent­ department. In the month of December, 2017, the petitioner was posted at GSSS, Kathiana i.e. the present place of posting.

It has been submitted that the petitioner is due for superannuation on 31.1.2022, as per the certificate, Annexure P1, issued by the concerned Principal. Further, it has been submitted that vide impugned order dated 17.3.2021, the petitioner has been transferred from GSSS, Kathiana to Lahru, District Kangra just to accommodate respondent No.3 on the instructions of the higher ups.

It has been submitted that respondent No.3 has been transferred/ accommodated in place of the petitioner only after the receipt of the recommendations of the public representative and that public representative can only recommend to fill up the vacant post, but he cannot recommend that one person be posted in place of the other, which shows malafide intention on his part as the persons of his choice can serve in his constituency.

It has been averred that the petitioner has been transferred during Covid banned period, which has been imposed by the State Government w.e.f. 19.11.2020.

It has been submitted that the petitioner has been transferred at the feg end of his service career and the petitioner is due for retirement on 31.1.2022, i.e. within less than one year and as per Clause 5.5. of the Transfer Guidelines, the concession for suitable posting has been provided to the employees, who are likely to retire within two years.

Reply to the petition filed and as per the respondents, the petitioner is working at the present place of posting since December, 2017 and has completed more than 3 years normal tenure, as per policy/guiding principles of transfer. Further, it has been submitted that petitioner since the year 2007 is serving in and around his home village in District Hamirpur, therefore, the petition deserves dismissal.

It has been submitted that replying respondent No.3 has served in District Solan, thereafter transferred to District Bilaspur, then sent to GSSS, Lahru, District Kangra and after completion of about three and half years, transferred to the GSSS, Kathiana, Hamirpur and joined there on 19.3.2021. Hence, the replying­respondents have prayed for dismissal of the instant petition.

We have heard the learned counsel for the parties.

Mr. K.B. Khajuria, learned vice counsel appearing for the petitioner, has argued that the petitioner has left only with 11 months of service, his transfer is against the transfer policy. On the other hand, Mr. Vinod Thakur, learned Addl. Advocate General for respondents No.1 and 2 has argued that the petitioner has been transferred as he has already completed his normal tenure of service at the place of posting.

Mr. Vivek Singh Thakur, learned counsel for respondent No.3 has argued that respondent No.3 has been adjusted at the place of the petitioner taking into consideration all peculiar circumstances and as the petitioner has already completed his normal tenure, he has no right to continue at the place of posting.

After going through the entire record, this Court finds that the impugned transfer order was passed on 17.03.2021, which reads as under:­

"With the prior approval of the competent authority, following Lect./ Lect. (School New) is/ are hereby transferred/ adjusted and in relaxation of ban to the institution indicated against each with immediate effect:­

Sr No.

Name Sh./Smt

From

To

Remarks

1.

Sushma Kumari Lect/Lect(SN)History

GSSS Lahru (Kgr)

GSSS Kathiana (Hmr)

Vice Sr. No.2 without TTA/JT

2.

Ved Parkash Lect/Lect(SN) History

GSSS Kathiana (Hmr)

GSSS Lahru (Kgr)

Vice Sr.No.1 with TTA/JT

Note:­ In case of transfer without TTA/JT consent of the official may be obtained first. If above teacher(s)/ official(s) is/are registered in your institution with GeM portal. In that event it may be ensured before relieving to 6

handover the assignment related to the GeM to other teacher/ official.

Sd/­

Director of Hr. Education

Himachal Pradesh."

The transfer order nowhere states that the petitioner has been transferred being in any of the exceptions, i.e. while disciplinary proceedings are pending against him or he cannot be allowed to be kept at the present place of posting for some other administrative reasons.

The transfer policy provides that anyone who is having less than two years service for his retirement, should not be disturbed. This is perhaps provided for some purpose so that at the fag end of his career, a person can settle down and his pension papers etc. are smoothly prepared and he gets his pension and other retirement dues in time. Definitely, in the present case, respondents have violated the transfer policy. So, the action of the respondents is malafide and against the well known confines of legitimacy and without any public purpose. Therefore, the transfer order is liable to be quashed and set aside.

Accordingly, the instant writ petition is allowed and the impugned transfer order dated 17. 03.2021 is ordered to be quashed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending miscellaneous application(s), if any, shall also stand disposed of.