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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J
Sh. Kamal Jeet Gupta, S/o Late Sh. Subhash Chand Gupta - Petitioner
Versus
State of Himachal Pradesh Through Special Secretary (Rd) And Ors. – Respondents
Civil Writ Petition No. 4123 of 2020
Decided On : 05-10-2021
Constitution of India, 1950 – Article 226 - Petition – Power of High Court to issue writ - Petition is second round of litigation - Earlier transfer order was assailed by petitioner on various grounds, including that he was transferred after short span of 5 months after his joining at present place of posting in February, 2020 in pursuance to his transfer vide order issued on his request on medical ground and also that said transfer order was issued on basis of D.O. Note number Secretary- approved at instance of local MLA, whereby he had recommended transfer of respondent No. 3 vice versa petitioner after condonation of short stay without any administrative or any other justifiable reason - Transfer was quashed by Court vide judgment passed in CWP – Held, petitioner is not adamant to remain at Nurpur only, but he would be satisfied in case he is posted in Development Block Bhatyat where post may be available on voluntary retirement of present incumbent posted there. In case permitted to voluntarily retire and respondents-Department considers petitioner and finds it suitable to post him , then Department would also be at liberty to post respondent No. 3 , as in such eventuality transfer of petitioner from will not amount punishment to him for approaching Court for redressal of his grievance - It is also made clear that respondent Authority is not precluded from transferring petitioner or respondent No. 3 in consonance with law of land and Transfer Policy, but in administrative exigency or in larger public interest, but not to accommodate one and to harass the other - Petition is allowed in aforesaid terms and disposed of.
JUDGMENT :
In the instant petition, petitioner, serving as Superintendent Grade-II in Panchyati Raj Department, Government of Himachal Pradesh, has assailed his impugned transfer order dated 25.9.2020 passed by Director Rural Development after considering representation of the petitioner in pursuance to judgment dated 1.9.2020 passed by a Division Bench of this High Court in CWP No. 2682 of 2020, titled Kamal Jeet Gupta Vs. State of H.P., whereby after quashing the earlier transfer order dated 23.7.2020 of petitioner and respondent No. 3, they were permitted to make representations to the Department to re-consider their transfer after giving them opportunity of hearing with further direction to maintain status quo qua posting of the petitioner and respondent No. 3 till decision by the Department.
2. Present petition is second round of litigation. Earlier transfer order dated 23.7.2020 was assailed by the petitioner on various grounds, including that he was transferred after short span of 5 months after his joining at present place of posting i.e. Nurpur in February, 2020 in pursuance to his transfer from Kangra to Nurpur vide order dated 18.2.2020 issued on his request on medical ground and also that the said transfer order (dated 23.7.2020) was issued on the basis of D.O. Note number Secretary-CM-17006/2017-VIP-A-221477, dated 20.6.2020 approved at the instance of local MLA, whereby he had recommended transfer of respondent No. 3 vice versa petitioner after condonation of short stay without any administrative or any other justifiable reason. The said transfer was quashed by the Court vide judgment dated 1.9.2020 passed in CWP No. 2682 of 2020.
3. Director Panchyati Raj after considering representations of petitioner and respondent No. 3, in sequel to order dated 1.9.2020 passed by a Division Bench of this Court, has maintained posting of respondent No. 3 at Nurpur, vide order dated 25.9.2020, whereas petitioner has been ordered to be transferred to Chamba.
4. Grievance of the petitioner is that respondent No. 3 was accommodated on the basis of DO Note causing displacement of the petitioner from present place of posting within a short span of five months and the said transfer was quashed by the Court, but vide order dated 25.9.2020, the Director has again accommodated respondent No. 3, but has displaced the petitioner by posting him at a distant place, which indicates vindictive attitude of the respondents against the petitioner for approaching the Court for redressal of his grievances. Petitioner has placed on record recommendations made by local MLA on 18.6.2020 and D.O. Note dated 26.6.2020 issued in sequel thereto approving the transfer of respondent No. 3 vice versa petitioner from Dharamshala to Nurpur in relaxation of ban on transfer and also condonation of short stay of respondent No. 3.
5. Recommendations of Local MLA read as under:-
1. Sh. Manoj Kumar Supdtt. Grade-II presently working at Office DRDA Dharamshala Distt. Kangra may please be transferred to o/o B.D.O. Nurpur Distt. Kangra against Kamal Jeet Gupta Supdtt. Grade-II & vice versa. Short stay of both may please be condoned.
2. … … … …”
6. The approved note reads as under :-
Sh. Maonj Kumar, Supdt. Grade-II may be transferred without TTA/JT in condonation of short stay from O/o DRDA Dharamshala, Distt. Kangra to O/o BDO Nurpur, Distt. Kangra against Sh.Kamal Jeet Gupta, Supdt. Grade-II & vice-versa, in relaxation of ban on transfers.
Director, Panchyati Raj & RD, Kasumpti, Shimla-9 is requested to take necessary action accordingly and report compliance.”
7. Record of the Department was summoned and perused. Undoubtedly, a public representative has a right to recommend for transfer of an employee for various reasons for public welfare and public interest as well as redressal of grievance of an employee, but it must not be a dictate to the Departmen
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