Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 455

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RANJAN SHARMA, J.
Sudhir Kumar – Appellant
Versus
State of H.P. & Ors – Respondents
CWP No. 9098 of 2023
Decided on : 20-11-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Surinder K. Sharma, Advocate.
For the Respondents: Mr. Rohit Thakur,

The Transfer Policy mandates that an employee who has already served in a difficult area should not be re-sent to such an area.

Headnote:
Transfer Policy - Employee Transfer - The court directed the petitioner to raise his grievance in terms of the Transfer Policy to the Director of Elementary Education and granted interim protection till the decision of the representation.
Fact of the Case:

The petitioner, a Drawing Master, was transferred from one school to another in a difficult area, and he challenged the transfer order based on the Transfer Policy and the disability of his son.
Finding of the Court:

The court permitted the petitioner to raise his grievance in terms of the Transfer Policy and directed the Director of Elementary Education to consider the representation. The court also granted interim protection by staying the transfer order.
Issues: The issues involved the petitioner's transfer from a difficult area and the violation of the Transfer Policy.
Ratio Decidendi: The court's decision was based on the Transfer Policy, which mandated that an employee who has already served in a difficult area should not be re-sent to such an area, and the court granted interim protection to the petitioner.
Final Decision: The court directed the petitioner to raise his grievance in terms of the Transfer Policy and granted interim protection by staying the transfer order.

JUDGMENT :

RANJAN SHARMA, J.

Notice. Mr. Rohit Thakur, learned Deputy Advocate General appears and waives service of notice on behalf of the respondents.

2. The petitioner has filed the instant petition with the following prayer(s):-

“i) That writ of certiorari may kindly be issued, quashing and setting aside the impugned office order dated 31.10.2023 (Annexure P-1) qua the petitioner.

ii) That writ of mandamus may kindly be also issued, directing the respondents to allow the petitioner to continue to work at the present place of posting i.e. Government Senior Secondary School Bator, District Chamba, H.P.”

3. In the backdrop of the reliefs as claimed, the only claim of the petitioner based on averments in Para 2 and 4 (B) of the writ petition, is that, the petitioner was appointed as Drawing Master in the respondent-department in December, 2013 and was posted in Government Senior Secondary School Batot, District Chamba, which is a hard/difficult/remote/rural area. His only grievance is that now as per the impugned order dated 31.10.2023, Annexure P-1, he has again been transferred from GSSS Batot, District Chamba to GHS Bihali under complex Government Senior Secondary School Sikothi, District Chamba against vacancy. The petitioner has assailed the impugned order dated 31.10.2023, Annexure P-1 on the ground that the petitioner had already served in the difficult area of GSSS Batot and has now been transferred to GHS Bihali, which as per him, is also a difficult/hard/remote/rural area. In addition to this, the petitioner has relied upon Annexure P- 2 i.e. the disability certificate where the son of the petitioner is permanent disabled to the extent of 50%.

4. Per contra, Mr. Rohit Thakur, learned Deputy Advocate General submits that the petitioner has been served at the present station i.e. GSSS Batot since December, 2013 and the petitioner has neither any fundamental right nor any legal right to remain posted at the present station or choice of station.

5. In rebuttal, learned counsel for the petitioner submits that the respondents-State has framed Transfer Policy on 10th July, 2013 and as per Clause 12 and 16 of the aforesaid policy which is based on the mandate of law passed by this Court in CWP No.1105 of 2006, titled as Sushila Sharma versus State of H.P. & Others, decided on 27.08.2007 mandating that if an employee has already served in the tribal/difficult/ hard/rural/remote area then, such an employee is not to be resent to such area. The Policy mandates that the continuous process of change has to be adopted, so as to avoid the charge of discrimination amongst employees. Learned Counsel for the petitioner further submits that the respondents have violated this Clause of the Policy by re-posting the petitioner to the tribal/difficult/remote hard area as already referred to above.

6. Be that as it may, once the petitioner has already been continuing at present station since December 2013, the petitioner cannot insist for retention at the present station. That being so and as requested by the learned counsel for the petitioner, this Court, permits the petitioner to raise his grievance in terms of Clause 12 and 16 of the Transfer Policy to the Respondent No.2-Director of Elementary Education, Himachal Pradesh within one week from today; with further directions to the aforesaid respondent to consider/examine the representation in light of the aforesaid Clause of the Transfer Policy which is based on the mandate in the case of Sushila Sharma (supra) within three weeks thereafter, after affording a personal hearing to the petitioner.

7. Learned counsel for the petitioner submits that the petitioner has not been relieved, therefore, this Court, in peculiar facts and circumstances of the case is of the view that the interim protection needs to be granted to the petitioner.

8. Accordingly, till the decision of the representation as aforesaid, the office order dated 31.10.2023, Annexure P-1 transferring the petitioner from GSSS Bator, Distr

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