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2024 Supreme(HP) 69
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Satyen Vaidya, J.
Kishori Lal - Petitioner
Vs.
State of H.P. and Ors. - Respondents
CWP No. 1680 of 2024
Decided On : 02-04-2024
Advocate Appeared:
For the Petitioner: Mr. Kulbhushan Khajuria, Adv.
For Respondents:Ms. Avni Kochhar, Deputy Advocate General, Mr. Devender K. Sharma, Adv.
IMPORTANT POINT
Transfers influenced by political interference and extra-constitutional authorities are not sustainable and violate the fundamental right to good governance.
Headnote:
Transfer - Violation of Transfer Policy - Comprehensive Guiding Principles-2013 - CWP No. 1387 of 2021 - Vipender Kalta Vs. State of Himachal Pradesh (2021) 3 Shimla Law Cases, 1462
Fact of the Case:
The petitioner challenged an office order for his transfer from one school to another, alleging violation of the transfer policy and political interference.
Finding of the Court:
The court found that the transfer was influenced by political interference and violated the principles established in Vipender Kalta case. The court directed the respondents to explain why the directions from the Vipender Kalta case had not been implemented.
Issues: Violation of transfer policy, political interference, non-implementation of court directions
Ratio Decidendi: The court emphasized the fundamental right to good governance, the need for politically neutral government servants, and the duty of the government to safeguard employees against political interference. It held that transfers influenced by extra-constitutional authorities cannot be sustained.
Final Decision: The impugned order of transfer was set aside, and the respondents were required to explain why the court's directions had not been implemented.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has taken an exception to office order dated 01.03.2024 (Annexure P-1), whereby petitioner has been ordered to be transferred from Govt. Sen. Sec. School, Trifalghat (Mandi) to Govt. Sen. Sec. School, Balag (Mandi), against respondent No.3.
2. The grievance, as raised, by the petitioner is firstly that his transfer is in violation of ‘Comprehensive Guiding Pinciples-2013’-for regulating the transfer of State Government employees, as he has not been allowed to complete his normal tenure at Govt. Sen. Sec. School, Trifalghat, secondly, his transfer was neither for any administrative exigency or in public interest, rather was a consequence of political interference by respondent No.4, on whose recommendation, the impugned order of transfer came to be issued.
3. Parties were put to notice, respondents No. 1 to 3, have filed written instructions dated 19.03.2024, issued by respondent No. 2. Respondent No. 3 has filed his detailed reply.
4. The stand taken by respondents No. 1 and 2 is that the petitioner has completed his normal tenure of three years and for maintaining so, it has been submitted that the petitioner has been posted within a distance of 30 Kms since 11.06.2020. Respondents No. 1 and 2 being employer have asserted their right to transfer the petitioner.
5. Respondent No.3 has contested the claim of the petitioner by submitting that the petitioner has already completed his normal tenure. It has been detailed that prior to his posting at Govt. Sen. Sec. School, Trifalghat, petitioner had served Govt. Sen. Sec. School, Samaila (Mandi) since 11.06.2020 and distance between both the stations was just 3 Kms. It has also been alleged that the petitioner had also been a beneficiary of D.O. Note in the past. As per respondent No. 3, the transfer of petitioner from Govt. Sen. Sec. School, Samaila to Govt. Sen. Sec. School, Trifalghat was result of a D.O. Note. Further, respondent No. 3 has also tried to justify his transfer to Govt. Sen. Sec. School, Trifalghat, giving reasons of his ill health and other family problems.
6. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
7. The material on record reveals that neither respondents No. 1 and 2 nor respondent No. 3 have specifically denied the allegation that respondent No. 4 has been instrumental in getting the respondent No. 3 transferred in place of the petitioner. The contesting respondents have also not shown that respondent No. 4 is an elected public representative. The specific allegation of the petitioner that respondent No. 4 is merely a leader of ruling party having no other capacity in the State Government, has also not been controverted.
8. Learned counsel for respondents vehemently argued that this Court has held that the person who has completed his normal tenure is not entitled to object to his transfer on the ground of having been effected on the basis of D.O. Note. He further submitted that this Court has also held in CWP No. 1387 of 2021, titled as Praveen Kumari Vs. State of H.P. that a government servant, who himself has been beneficiary of D.O. Note cannot have any right to object to the transfer of other person in his place on the basis of D.O. Note.
9. The facts of the case in hand, as noticed above, are somewhat different from the facts which formed subject matter of the judgment relied upon by learned counsel for respondent No.3. In this case, the fact that the impugned transfer is a consequence of intervention by respondent No. 4 and that respondent No. 4 is not holding any office or responsible position in the government has remained uncontroverted. That being so, the instant case carries different dimension.
10. The issue regarding the interference in administrative functions of the government by persons/ authorities having no role to play in the affairs of the administration, has already been decided by a Division Bench of this Court in Vip
