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2012 Supreme(HP) 239
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Deepak Gupta, Rajiv Sharma, JJ.
Pankaj Singhal - Petitioner.
Versus
Himachal Road Transport Corporation Limited, Main Bus Stand, Shimla-3 through its Managing Director. - Respondent.
CWP No. 4801 of 2012-A
Decided on :6.9. 2012
For the Petitioner:Mr. Dilip Sharma, Sr. Advocate with Mr. Umesh Kanwar, Advocate.
For the Respondent:Mr. Adarsh Sharma, Advocate.
The central legal point established in the judgment is that a person holding a higher post cannot be posted against a lower post, and transfers should be made based on administrative exigencies without discriminatory preference for a junior for the higher post.
Headnote:
Transfer - Administrative Exigency - E.P. Royappa versus State of Tamil Nadu and another, (1974) 4 SCC 3
Fact of the Case:
The petitioner, a Deputy Divisional Manager, was transferred to a lower post at Rampur Unit. The petitioner had been suspended and faced a criminal case, but both were resolved. The petitioner argued that the transfer was due to a shortage of staff, but the court found no merit in this argument.
Finding of the Court:
The court found that the petitioner, being a Deputy Divisional Manager, should have been posted against a post commensurate with his status and not to the junior post of Regional Manager. The court also noted that the transfer was not in line with the principles established in E.P. Royappa versus State of Tamil Nadu and another.
Issues: The main issue was whether the transfer of the petitioner to a lower post was justified based on administrative exigency.
Ratio Decidendi: The court relied on the principles established in E.P. Royappa versus State of Tamil Nadu and another, emphasizing that a transfer from a higher post to a lower post with discriminatory preference of a junior for the higher post would be invalid.
Final Decision: The writ petition was allowed, and the transfer of the petitioner to Rampur was quashed and set aside. The respondent-corporation was directed to post the petitioner on an equal status post in public interest/administrative exigency.
Per Rajiv Sharma, Judge.
Petitioner was promoted to the post of Deputy Divisional Manager (Non-Technical) on 5.10.2006 and was posted at Tara Devi, Shimla. He was transferred from Tara Devi, Shimla to Solan on 22.1.2009. He was further transferred from Solan to Dharamshala Divisional Office on 31.5.2010 to work as Divisional Manager. He was transferred from Dharamshala to Hamirpur on 21.1.2011. He was further transferred from Hamirpur to Head Office Shimla on 13.12.2011. Petitioner has now been transferred from Shimla to Rampur Unit vide office order dated 19.6.2012.
2. There are four Divisional Managers available as per the cadre strength in the respondent-corporation and same number of posts of Deputy Divisional Managers. The Divisional Managers and Deputy Divisional Managers as per the submission of Mr. Dilip Sharma, learned Senior Advocate are to be posted at divisional level. He has further argued that the Rampur Unit where the petitioner has been transferred from Head Office, only the post of Regional Manager is available. In other words, his submission is that petitioner has been transferred to a lower post. He has further argued that one Sh. Vijay Singh, who was promoted on 21.1.2011, has been permitted to work as Divisional Manager and Sh. Daljit Singh, who was promoted on temporary/ ad hoc basis on 15.9.2010, is also discharging the duties of Divisional Manager.
3. Mr. Adarsh Sharma has brought to the notice of the Court that the petitioner when earlier was posted as Divisional Manager could not work efficiently. He has also argued that number of officers, namely, R.N. Negi, Kulbhushan Nayyar, Naveen Kaplas, Vijay Singh and Anil Sen etc., though holding the post of Deputy Divisional Managers, have worked as Regional Managers. He has further argued that the petitioner was put under suspension and criminal case has been registered against him for misappropriation. He has lastly contended that the petitioner has been sent to Rampur due to shortage of staff.
4. We have heard the learned counsel for the parties and have perused the pleadings carefully.
5. Petitioner was promoted on 5.10.2006 as Deputy Divisional Manager (Non-Technical). He has been permitted to discharge the duties of Divisional Manager till the date of his transfer to Rampur, i.e. 19.6.2012. Sh. Vijay Singh was promoted on 21.1.2011. However, he is working as Divisional Manager. Sh. Daljit Singh, who was promoted as Deputy Divisional Manager on 15.9.2010 on temporary/ ad hoc basis is also working as Divisional Manager. There is no merit in the contention of Mr. Adarsh Sharma that the petitioner when earlier posted as Divisional Manager could not discharge his duties efficiently. There is neither any averment in the reply how the petitioner was not efficient nor any record has been produced to this effect. There is also no merit in the contention of Mr. Adarsh Sharma that the petitioner has been posted at Rampur due to shortage of staff. In case, there is shortage of staff, junior-most incumbent ought to have been sent to Rampur instead of petitioner.
6. As far as the suspension of petitioner is concerned, the same has been revoked by the competent authority and the petitioner was reinstated on 9.11.2007. So far as registration of criminal case against the petitioner is concerned, he stands acquitted by the competent court on 2.4.2011. Petitioner was also put under suspension on 2.9.2011; however, after receiving the explanation of the petitioner, the suspension has also been revoked on 24.9.2011. Petitioner being Deputy Divisional Manager should have been posted against the post commensurating to his status and not to the junior post of Regional Manager. A person who is holding higher post cannot be posted against lower post.
7. Their Lordships of the Hon’ble Supreme Court in E.P. Royappa versus State of Tamil Nadu and another, (1974) 4 SCC 3 have held that so long as the transfer is made on account of the exigencies of administration and is not
