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HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE DEEPAK GUPTA, J. & HON’BLE MR.JUSTICE SURINDER SINGH, JJ.
SANT RAM PANT
Petitioner
VERSUS
STATE OF H.P. & ORS
Respondents
CWP No. 114 of 2009
Decided on 17-9-2009.
Transfer - Employee Grievance - State of Himachal Pradesh - CWP No. 1105 of 2006 - Sushila Sharma v. State of H.P & others - [19.12.2008, 1.1.2009] - The court held that transfer orders should not be cancelled without making reference to the administrative department and giving it an opportunity to put forth its views. The court emphasized that employees should approach their own department for grievances and not directly approach political representatives. The court set aside the illegal order dated 1.1.2009 and allowed the writ petition in favor of the petitioner.
Fact of the Case:
The petitioner challenged the order modifying the transfer of respondent No.3 and his own subsequent transfer, alleging that it was done solely to accommodate respondent No.3. The court directed the State to produce records justifying the cancellation of respondent No.3's transfer and found that the note justifying the cancellation was issued without any material on record.
Finding of the Court:
The court found that the cancellation of the transfer order lacked justification and was illegal. It also found the petitioner's grievance genuine and allowed the writ petition in favor of the petitioner.
Issues: The issues revolved around the legality of the transfer orders, the lack of justification for the cancellation of respondent No.3's transfer, and the genuineness of the petitioner's grievance.
Ratio Decidendi: The court emphasized that transfer orders should not be cancelled without reference to the administrative department and that employees should approach their own department for grievances. It also highlighted the need for reasons to be made apparent from the record when cancelling a transfer order.
Final Decision: The court set aside the illegal order dated 1.1.2009 and allowed the writ petition in favor of the petitioner. The petitioner's transfer was allowed due to genuine grievances, while the original transfer order of respondent No.3 was upheld.
Deepak Gupta, J-By means of this writ petition, the petitioner has challenged the order dated 1.1.2009 whereby the transfer order of respondent No.3 has been modified and he has been adjusted at Hamirpur vice petitioner and the petitioner has been posted to Mehla (Chamba).
2. Briefly stated the facts of the case are that the petitioner as well as the respondent No.3 are employees of the State of Himachal Pradesh and they are both working as Agricultural Development Officers in the State of Himachal Pradesh. The respondent No.3 was promoted as Agricultural Development Officer and on promotion was posted to Mehla (Chamba). It appears that respondent No.3 was not happy with this transfer and approached the office of the Hon’ble Chief Minister to the State of Himachal Pradesh. Consequently, the order of his transfer was cancelled vide impugned order dated 1.1.2009 and he was ordered to be adjusted in the Quality Control Laboratory, Hamirpur against which post the petitioner was working. Resultantly, the petitioner was transferred from ADO, Quality Control Laboratory, Hamipur to Development Block, Mehla (Chamba).
3. The case of the petitioner basically is that he has been transferred only to accommodate the respondent No.3. Whereas the petitioner has served in the tribal area of Nichar, respondent No.3 has never served in a tribal area and has still been adjusted at Hamirpur.
4. On 22nd June, 2009 we had directed the State to produce the record to show as to what necessitated the cancellation of the transfer of respondent No.3 to Mehla and his transfer to Hamipur. On 27th June, 2009 some record was produced and we had passed the following order:-
“The only record produced beforeus to justify the cancellation of transfer of respondent No.3 is somenote sent by the Deputy Secretary to Hon’ble the Chief Minister on 29th December, 2008. There is nothing onrecord to show that on what basis this note was issued. The State is directed to produce the entire recordin this regard. List on 6th August,2009. The respondent No.3 may engagea counsel and may file reply on orbefore the said date.”
5. Thereafter, the entire record has been produced. We have heard Sh.Ajay Sharma, learned counsel for the petitioner, Sh.R.M.Bisht, learned Deputy Advocate General for the State and Sh.Bipin Negi, learned counsel for the respondent No.3.
6. From the facts narrated above, it is apparent that respondent No.3 on his promotion was posted to Mehla (Chamba) vide order dated 19.12.2008. Thereafter, this order was cancelled by the impugned order dated 1.1.2009. Despite our two orders as quoted above, the only record produced by the State justifying the order dated 1.1.2009 is a note which has been issued by the Deputy Secretary to the Chief Minister addressed to the Principal Secretary (Agriculture) to the Government of Himachal Pradesh which reads as follows:-
“Hon’ble Chief Minister has approved the following:
Shri Ajay Kumar Chopra, ADO under orders of posting at Mehla, Distt.Chambamay be adjusted at Plant Fertilizer Quality Control Laboratory, Hamirpur against Shri Sant Ram without TTA/JT.
Pr.Secretary (Agriculture) to the Govt. of Himachal Pradesh is requested totake necessary action accordingly.
-sd-Deputy Secretary to the Chief Minister
The Pr.Secretary (Agriculture) to theGovt. of Himachal Pradesh,
H.P. Secretariat, Shimla 171 002.”
7. We had repeatedly asked the Government as to on what basis this note was issued. No written representation or any other communication has been produced before us justifying the issuance of such a note.
8. When transfers are made, an employee may be aggrieved by his transfer. An employee has a right to make a representation against such transfer. It is also the right of the employer, including the State, to look into the grievances of the employee and if the grievance made by the employee is found to be genuine, the State is well within its right to redress the grievance of the employee and cancel the order of t
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