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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ranjan Sharma, J.
Vijay Chauhan - Petitioner
Vs.
State of Himachal Pradesh & Others - Respondents
CWP No.525 of 2024
Decided On : 12-01-2024
Transfer Policy - Trained Graduate Teacher - Clauses 12, 15 & 16.1 - The court discussed the Transfer Policy clauses 12, 15, and 16.1, which mandate the consideration of an employee's claim for posting at any one of the five stations of choice, without the requirement of vacancy. The court highlighted the importance of fair and equal treatment in transfer and posting, emphasizing the need to avoid prolonged stay in difficult areas and to ensure a continuous process of change for all employees.
Fact of the Case:
The petitioner, a Trained Graduate Teacher, sought a writ to quash rejection orders for transfer from a tribal area to a station of choice. The petitioner had completed the minimum tenure in the tribal area and was eligible for consideration under the Transfer Policy.
Finding of the Court:
The court found that the rejection orders were dehors the mandate of the Transfer Policy, as they were based on the non-availability of vacancy, which was not a requirement under the relevant clauses. The court referred to a similar case and directed the respondents to re-examine the petitioner's representation and pass appropriate orders within a specified timeframe.
Issues: The issues revolved around the petitioner's eligibility for transfer under the Transfer Policy, the requirement of vacancy for consideration, and the fair and equal treatment of employees in transfer and posting.
Ratio Decidendi: The court's decision was based on the interpretation of the Transfer Policy clauses 12, 15, and 16.1, emphasizing the need for fair and equal treatment in transfer and posting, avoidance of prolonged stay in difficult areas, and the continuous process of change for all employees.
Final Decision: The rejection orders were quashed and set aside, and the respondents were directed to re-examine the petitioner's representation and pass appropriate orders within a specified timeframe.
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 peculiar facts as borne out from the pleadings.
3. The petitioner, working as Trained Graduate Teacher in Government Senior Secondary School Shansha, District Lahaul Spiti, a tribal area, come up before this Court, seeking the following relief(s):-
b. Issue a writ in nature of mandamus directing the respondent to transfer the petitioner from present place of posting which is a difficult/Tribal area to place of his choice in District Kangra in terms of the judgment of this Hon’ble Court dated 23.10.2018 in CWP No.2114 of 2018 and judgment dated 24.12.2020 in CWP No.5801 of 2020;
c. Issue a writ of mandamus further directing the respondent to transfer and relieve the petitioner from present place of posting i.e. GSSS Shansha, District L & S H.P. forthwith in relaxation to the condition of joining of the substitute in place of the petitioner.”
4. The petitioner, is a Trained Graduate Teacher (Medical), and is presently posted in Government Senior Secondary School Shansha, District Lahaul and Spiti since November, 2020.
5. Being a regular Trained Graduate Teacher, the petitioner has completed the minimum of two winters and three summers in aforesaid school, which is a categorized tribal area, as per Transfer Policy.
6. On completion of the normal tenure of two winters and three summers in the Tribal Area, the petitioner became eligible and entitled to be considered for posting in a soft area or station of choice as per Clauses 12, 15 & 16.1 of the Transfer Policy, which reads as under:-
In view of the observations made by the Hon'ble High Court vide judgment dated 27-08-2007 in CWP No. 1105/2006 titled as Sushila Sharma. Head Teacher Vs. State of H.P. & others, every department will ensure that all the employees are treated fairly and equally in the matter of transfer and posting The Departments may also ensure that every employee during his tenure of service. serves in Tribal/Hard/Difficult Areas and also in Remote/ Rural Areas. While making transfers the Department shall ensure that the employees who have already served in Tribal/Hard Areas as well as Remote/ Rural Areas are not again sent to these Areas and there may be a continuous process of change whereby all the employees have a chance to serve in Tribal/ Hard Areas as well as Remote/ Rural Areas and measures shall be taken to ensure that employees remained posted in the Urban Areas/ Cities for a long period, are transferred and posted to Rural/ Remote Areas and Hard/ Tribal Areas in the transfer season when the transfers are made. It will be the responsibility of concerned Head of Department/competent authority to relieve the officer/official transferred to tribal / difficult / hard / remote / rural areas.
12.1 All the Departments will ensure that all employees during their entire period of service will serve for at least single tenure in the Tribal/ Difficult/Hard areas and remote/rural areas. In order to earn their promotion, service in such areas will be mandatory. This would be subject to adequate number of posts being available in such areas. However, this will not apply to those employees who have less than 5 (Five) years to superannuate. This stipulation is to be incorporated in R & P Rules wherever applicable. A common provision to this effect has been devised by the Department of Personnel after having obtained the approval of competent authority. No Government employee can claim his transfer or posting as a matter of right. I
The main legal point established in the judgment is the importance of fair and equal treatment in transfer and posting, as mandated by the Transfer Policy clauses 12, 15, and 16.1, to avoid prolonged....
Judicial intervention in transfer matters is warranted when decisions violate established transfer policies and principles of fairness, ensuring no arbitrary actions by authorities.
Mandatory and uniform application of Transfer Policy, fair and objective exercise of discretion in employee transfers.
The central legal point established in the judgment is the need for fair and equal treatment of employees, non-discrimination, and non-arbitrariness in state action as per Articles 14 and 16 of the C....
The main legal point established in the judgment is that the transfer of a government employee should be made in public interest and for administrative reasons, and frequent transfers without justifi....
The main legal point established in the judgment is the requirement for genuine material revealing public interest and administrative exigency for transfers, and the inadmissibility of clubbing previ....
The need for fair, objective, and transparent application of the Transfer Policy to avoid arbitrariness and discrimination in state action.
The central legal point established in the judgment is the interpretation and application of the Transfer Policy in determining the petitioner's eligibility for transfer.
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