Point of Law: Employment and Service matter - Lecturer in DIET post - Transfers of Petitioner - It is trite that transfer is an incidence of service and as long as the authority acts keeping in view administrative exigency and taking into consideration public interest as paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines.

JUDGMENT :

Vivek Singh Thakur, J.

Petitioner has approached this Court for quashing two even dated impugned orders dated 26.3.2021 (Annexures P-2 and P-3), whereby vide order Annexure P-2 petitioner, posted in District Institute of Education and Training (DIET) Nahan, District Sirmour, H.P., has been repatriated to his parent department i.e. Higher Education and has been ordered to be posed at GSSS Dhamwari, District Shimla, H.P. against vacancy as Lecturer/Lecturer School New (Mathematics) and vide separate even dated order (Annexure P-3) respondent No. 4, serving as Lecturer/Lecturer School New (Mathematics) in Higher Education Department and posted at GSSS Ludhiana, District Sirmour, has been transferred/posted in DIET Nahan, District Sirmour H.P. against resultant vacancy.

2. Petitioner has laid challenge to his repatriation and transfer order on the ground that he has been transferred on the basis of D.O. letter, but not for administrative exigency, despite the fact that since last 18 years he has been performing his duties to the best of his abilities in DIET Nahan and his repatriation and posting as well as transfer/adjustment of respondent No. 4, is in violation of norms notified by Education Department vide notification dated 10.10.2013 (Annexure P-4) issued as per National Council for Teacher Education (NCTE) guidelines.

3. Case advanced on behalf of the petitioner is that he had made complaints against Principal pointing out financial irregularities, whereupon Principal, being inimical to the petitioner, had started making complaints against petitioner and in the meanwhile respondent No. 4 approached Hon’ble Education Minister and in sequel thereto petitioner has been repatriated and transferred and respondent No. 4 has been accommodated despite the fact that there was ban on transfers, wherein transfers could not have been ordered, except on medical grounds or administrative exigency.

4. It is further case of the petitioner that in addition to his academic qualification to be appointed as a Lecturer Mathematics, petitioner has also done Master in Education (M.Ed.), which is essential qualification for appointment as a Lecturer in Education in DIET, which is evident from qualification prescribed against the category of Lecturer in Education reflected in chart Annexure P-5 placed on record with the petition. It is case of the petitioner that petitioner was posted in DIET Nahan in the year 2002 and, now, after issuance of notification dated 10.10.2013, fresh induction, at any point of time, thereafter, shall be by centralized Selection Process at the level of Director Higher Education as provided in clause 5(ii) of this Notification, but in present case such procedure has not been followed and, therefore, impugned orders are not sustainable in the eye of law.

5. For submission on behalf of petitioner, respondents- Department was directed to file reply and also to produce the record. Respondent department has not chosen to file reply but has produced record. Learned Additional Advocate General at the time of production of record has stated that impugned orders have not been issued on the basis of D.O. letter, but Annexure P-2 has been issued for complaints against the petitioner and Annexure P-3 has also been issued on request of respondent No. 4 made to the competent authority, whereupon, in addition to other contentions raised on behalf of petitioner, learned counsel for the petitioner has also submitted that issuance of impugned orders on the basis of complaints against the petitioner is an act of malice in law, as a transfer on the basis of complaints, in lieu of punishment but without inquiry is not permissible and before transferring an employee on the basis of complaints, an employer is under obligation to hold an inquiry, may be preliminary. To substantiate his submissions, learned counsel for the petitioner has relied upon Somesh Tiwari Vs. Union of India & Others, (2009) 2 SCC 592 and also judgments passed by the D