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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, VIRENDER SINGH, JJ.
Rajesh – Appellant
Versus
Himachal Pradesh State Electricity Board Limited and others - Respondents
CWP No.1485 of 2023
Decided on : 10-04-2023
Constitution of India, 1950 - Article 12, 14, 16(1) - Order of transfer - Posting on stations of their choices - Petition against order of transfer, however, a perusal of records goes to reveal that both petitioner as also private respondent have been pulling strings for their transfer and posting on stations of their choices – Both petitioner as well as private respondent have not only feigned ignorance regarding works and ethics of Department but their conduct is otherwise not befitting office. [Para 5]
Finding of the Court: No employee(s) in service of State, was it statutory Board and Corporation etc., can be so indispensable that he/they cannot be transferred out of Shimla so as to afford a chance towards similarly situated persons to serve in State Capital - Since, both petitioner as well as private respondent have not only feigned ignorance regarding works and ethics of Department but their conduct is otherwise not befitting office they are holding, therefore, both of them are required to be posted/ transferred out of their present place of posting, as granting an indulgence to any one of parties in this case would be causing manifest injustice to other Engineers, who are desirous to serve in Shimla but have failed to get posting because of cartel formed by influential Engineers like parties in instant case - Court is not inclined to exercise its discretion in favour of any of parties “as justice is not on their side” – Court see no reason to interfere with transfer order, but would direct respondent No.1 to post one of incumbents in District Lahaul & Spiti and other in District and report compliance before next date.
Result: Petition disposed of.
Key Points: - The judgment emphasizes that no employee can be so indispensable as to prevent transfers to allow other similarly situated persons to serve in Shimla (!) . - It discusses the right to fair treatment as an essential element of natural justice within Articles 14 and 16 of the Constitution (!) . - The Court notes the need for a model employer to act with probity, fairness, and transparency, condemning favoritism in transfers (!) (!) . - It references prior rulings condemning cartel-like behavior in postings and calls for non-arbitrary, legitimate exercise of discretion in transfers (!) (!) . - The Court refuses to interfere with the transfer order in this case, directing postings of one incumbent to District Lahaul & Spiti and the other to District Kinnaur, and requires compliance reporting before the next date (!) (!) . - It cites Sheela Suryavanshi case on the need to avoid monopoly in transfers and to consider wider public interests and students' needs (!) (!) . - The decision underscores that delaying or misusing power in transfers undermines good governance and trust in public institutions (!) . - The judgment quotes the Harinder Singh case condemning favoritism in transfer orders and reiterating model-employer obligations (!) (!) . - It frames the issue as balancing executive efficiency with protection of citizens' rights to fair treatment under constitutional provisions (!) (!) . - The date and disposition indicate the petition was disposed with specific compliance directions on transfers (!) (!) .
Tarlok Singh Chauhan, Judge (Oral)
Even though this petition is directed against the order of transfer, however, a perusal of the records goes to reveal that both the petitioner as also private respondent working as Assistant Engineers, being Class-I, have been pulling strings for their transfer and posting on the stations of their choices and have managed their postings continuously for more than three decades in and around Shimla.
2. While dealing with an issue where employees working under the State Government had been seeking their postings onlyu in Shimla and had infact formed some sort of cartel, this Court in Sheela Suryavanshi vs. State Of H.P. & Ors., 2020 Labour Industrial Cases 3907 observed as under:
“18. Off late, this Court has seen a surge in litigation relating to transfer. The State of Himachal unlike other States is not evenly or uniformly developed in matters i of basic infrastructure like education, health services etc. It is for this reason and rightly so that every employee tries to make an endeavour to seek posting in the district or tehsil headquarters where the infrastructure is relatively well developed. This we observe on the basis of the statistics relating to Shimla alone, where floating population is equal to permanent population. Most of these migration in urban areas is directly related with education of children and thereafter it could be for other purposes like better health facilities etc.
19.We further notice that because of cartel created by few of the employees serving in the urban and semi urban areas of Himachal Pradesh, t.he influential employees manage to secure their postings in and around urban areas, leaving practically no room for the other employees.
20.The instant case iso one such classical example, which reflects the modus operandi being resorted to by these teachers on completion of their tenure by seeking mutual transfer or creating artificial vacancies and thereafter getting each one adjusted in such vacancies.
21. It cannot be ignored that not only the State or Country but the whole world is in the grip of pandemic COVID-19, because of which students cannot be taught physically in the class rooms and are being taught through online classes.
22. In such circumstances, the respondents are not only duty bound but are mandated by law to ensure i that no monopoly in the matters of transfers is created in favour of selected fews but an endeavour has to be made to accommodate maximum number of teachers whose children are appearing for the board examination or examination for professional courses. These students can only study and attend classes on line if there is adequate and desired band- width. Even otherwise the facilities of tuition and coaching classes on online are mainly available in these places i.e. the district and tehsil headquarters, therefore, also the State is required to adopt a fair and transparent policy of transfer by calling for the details of all the teachers whose children are to appear in the Board exam or examination for professional courses like MBBS, AIEEE et.c. This would not only bring about an end to the monopoly created in favour of few teachers but would also ensure benefit to the student community as a whole.
23.The Central Governmoent, State Governments and likewise all public sector undertakings are expected to function like a ‘model employer’. A model employer is under an obligation to conduct itself with high probity and expected condour and the employer, who is duty bound to act as a model employer has obligation to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.
24. The action of the State must be reasonable, i fair, just and transparent and not arbitrary, fanciful or unjust. The right of fair treatment is an essential ingredient of justice. Exercise of unbridled a
Right to fair treatment is an essential inbuilt of natural justice.
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