The need for fair, objective, and transparent application of the Transfer Policy to avoid arbitrariness and discrimination in state action.

JUDGMENT :

Ranjan Sharma, J.

Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.

2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the order intended to be passed herein.

3. The petitioner has filed the instant petition with the following reliefs:-

“(i) That the respondent be directed to decide the representation dated 06-07-2023 (Annexure P-2) within time bound manner and transfer the petitioner to the station of his choice as per the transfer policy of State of H.P.

(ii) That the Respondents be directed to transfer the petitioner to one of the stations of his choice as per the transfer policy of State of H.P. as mentioned supra.”

4. The petitioner was initially posted on contract basis as an Assistant Professor (History) in Government Degree College Pangi at Kilar, District Chamba, Himachal Pradesh, which is a tribal area and he joined as such on 07.07.2018 [Annexure P-1]. His services were regularized in March, 2021. Since his initial appointment, the petitioner has been working as such at the said station, i.e. Government Degree College Pangi at Kilar, District Chamba and has completed five years mandatory stay in tribal area.

5. In this regard, the petitioner has submitted a representation dated 06.07.2023, through proper channel, which was forwarded by the Principal Government Degree College Pangi, District Chamba, vide letter of even date, followed by undated reminder, which was also forwarded, vide letter dated 07.09.2023 by the said Principal, to Respondent No.2-Director, Higher Education, Himachal Pradesh [Annexure P-2 (colly)]. As per Clause 16.5 of the existing Transfer Policy, the petitioner has mentioned five stations of choice, i.e. (i) Government College Chamba; (ii) Government College Kullu; (iii) Government College, Dharamshala; (iv) Government College Nagrota Bagwan; and (v) Government College, Jawali, in his reminder, as aforesaid. The said representation/reminder are stated to be pending.

6. Learned counsel for the petitioner submits that petitioner belongs to tribal area of Pangi (Chamba) and he has completed the mandatory service of five years as per Clause 16.5, in the tribal area of Pangi (Chamba). Therefore, the petitioner has a right to be considered for posting from tribal area to any of the five stations of choice, in terms of Clauses 12 and 16.1 of the Transfer Policy, but by not transferring the petitioner to one of the stations of choice, as mentioned above, the respondents have ignored the provisions which is alleged to be not in spirit of existing Policy and the law.

7. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that the representation/reminder [Annexure C-2(colly)], shall be looked into/examined, in accordance with law, in a time bound manner.

8. Be that as it may, once the State Authorities have issued the Transfer Policy, mandating certain concessions, to its employees, in view of Clauses 12 and 16.1 of the Transfer Policy, then, the aforesaid Clauses in the Transfer Policy, cannot be permitted to remain only on papers. In order to give effect to the aforesaid Clauses in the Transfer Policy, the respondents are bound to either call for an option from an employee or to prescribe a time-line when, such option(s) by way of representation, could be exercised by an employee, on completion of the normal tenure of two winters and three summers in such areas [for those who do not belong to such areas] and on completion of the normal tenure of five years in such areas [for those who belong to such areas as in this case]; and then to consider/examine the aforesaid option and to pass appropriate orders, in terms of Clauses 12 and 16.1 of the Transfer Policy, so that the benefit of such concession(s) is admissible in a fair, objective and transparent manner to all concerned, so as to avoid perversity and discrimination in State action; by prol