Dharam Chand Chaudhary, J.@mdashComplaint is that the petitioner has been transferred vide order Annexure P-1 from Govt. Primary School, Bhatoli, Education Block Ghumarwin-II, District Bilaspur to Govt. Centre Primary School, Dhanipukhar, Education Block Jhandutta, District Bilaspur, on the recommendation of a local leader, simply to accommodate the 4th respondent. It has, therefore, been pleaded that the transfer of the petitioner is not in the public interest nor in the exigency of service and rather is the result of colourable exercise of power at the instance of a defeated candidate of ruling party, that too to accommodate the 4th respondent, who is alleged to be politically a heavyweight. The impugned order Annexure P-1, therefore, has been sought to be quashed and set aside with further direction to the respondents to allow the petitioner to continue at Govt. Primary School, Bhatoli, the present place of his posting till he completes his normal stay there. Against his transfer, the petitioner though made a representation, however, while the same was in the process of being considered by the competent authority, respondent No. 4 Maya Devi filed CWP No. 7251 of 2013, seeking a direction to the Director, Elementary Education (2nd respondent) to initiate action against the Deputy Director, Elementary Education, Bilaspur (impleaded by name as 3rd respondent) and also a direction to the Deputy Director to relieve her from Govt. Centre Primary School, Dhanipukhar so that she could join at the transferred station, i.e. Govt. Primary School, Bhatoli.
2. Respondent No. 4 has filed reply to the writ petition, taking a stand that a coordinate Bench of this Court vide order dated 30.9.2013 passed in CWP No. 7251/2013 had directed the 3rd respondent to implement the order of transfer Annexure P-1 to this petition, after hearing the petitioner, who was respondent No. 5 in that petition. On merits, the stand taken by respondent No. 4, reads as follows:
4. That the contents of the para 4 are admitted to the extent that the petitioner in his entire carrier of 16 years has spend at three places only. It is factually incorrect that the SMC made representation to the competent authority, in fact the present petitioner brought political interference and got passed resolution from SMC by getting false signature of the persons and same was sent to the MLA of the constituency. The transfer order made in favour of the replying respondent was not implemented and she was forced to seek direction from this Hon''ble Court. It is further submitted that the present petitioner was heard and filed reply in the matter. It is incorrect to say that the case was not heard on merit.
5. That the contents of these paras are denied. The petitioner himself stated in para 4 of the petition that for the last 16 years he remained at three places. It is denied that the petitioner was transferred on the DO note of the Ex-MLA of this constituency. It is next to impossible that DO note was brought on 22.8.2013 and transfer order has been affected on 23.8.2013.
3. The respondents were directed to produce the record, leading to the transfer of the petitioner from Govt. Primary school, Bhatoli to Govt. Centre Primary School, Dhanipukhar.
4. The record produced by learned Additional Advocate General reveals that the 4th respondent is recipient of UO Note, as she has been transferred to the place of the posting of petitioner, pursuant to UO Note No. Secy/CM-E0202/2012-DEP-C-77113 dated 21.8.2013, which reads as follows:
Hon''ble Chief Minister has approved the following:
Smt. Maya Devi, JBT may be transferred without TTA and in condonation of short stay from GCPS Dhanipukhar, Block Jhandutta, Distt. Bilaspur to GPS Bhatoli under complex GSSS Malyawar, Block Ghumarwin-II, Distt. Bilaspur vice Shri Dalip, JBT and vice-versa, by clubbing his stay within the radius of 5 Kms.
Director of Elementary Education, HP, Shimla is requested to take necessary action accordingly and report compliance.
Sd/-
Under Secretary
to the Chief Minister.
5. The record further reveals that the UO Note was diarized in the Directorate of Elementary Education vide diary No. 10218 on 21.8.2013 itself. The same was processed in the Directorate on the next day, i.e. 22nd August, 2013 for issuance of orders. The proposal was approved by the 2nd respondent and consequently impugned order came to be issued on the next day, i.e. 23rd August, 2013.
6. Thus, it is crystal clear from the record that respondent No. 4 Smt. Maya Devi has managed her transfer from GCPS Dhanipukhar to GPS Bhatoli by resorting to political influence. This Court in a catena of judgments has deprecated the practice of transfer of Govt. servants at the instance of Ministers/MLAs and other public representatives, including the workers of political parties, of course leaving open to them to make complaint, if any, against Govt. servant to the competent authority, i.e. Head of the Department. The Heads of Departments have also been authorized to effect the transfers of Govt. servants in accordance with law and the policy, if any, formulated in this behalf and also in the exigency of service and public interest. We draw support to such findings from the judgment of a coordinate Bench of this Court in Amir Chand Vs. State of H.P. and others, CWP No. 5351 of 2012 and that of the principal Bench of this Court in Sanjay Kumar Vs. State of H.P. and others, CWP No. 801 of 2013. This Bench itself in a recent judgment, delivered on 22.11.2013 in Amar Chand Vs. State of H.P. and others, CWP No. 8267 of 2013, while quashing clause 17 of the transfer policy, reiterated the law laid down in the judgments supra that the transfers of Govt. servants on the recommendations of the political executives being not legally sustainable should be quashed. The relevant portion of the judgment reads as follows:
6. What was urged before us by learned Advocate General emphatically is that it is open to the State to act on the representation of public representatives at all levels. In particular, he has referred to Clause 17 of the Policy which states that on request from public representatives at all levels, on administrative exigencies and in the public interest, transfer shall be considered by the competent authority.
7. We are unable to accept this contention. What we find is that the State now seeks to nullify the decisions of this Court which have been upheld by the Supreme Court. In Amir Chand''s case this Court had considered in extenso the grounds on which transfer can be effected in accordance with law. The Court had also considered in detail the law applicable. It inter alia followed the decisions of the Supreme Court in
8. Subsequently, in Sanjay Kumar''s case these very principles have been re-affirmed. We note that in Amir Chand''s case, inter alia four specific directions had been issued namely:-
....4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representatives do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred.
5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.
6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments.
7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister in charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers.
8. We fail to see how Clause 17 of the policy, as noticed by us supra, can be construed to be in consonance with law as considered in two judgments Sanjay Kumar and Amir Chand''s cases. We cannot accept the submission of the State that the Hon''ble Supreme Court by its order in the SLP (supra) has approved the new policy notified on 10th July, 2013. The Supreme Court''s order cannot be read to verify or modify the two judgments supra. This submission, to the contrary, cannot be accepted. It is trite that no policy/regulation can be framed by the State which is not in consonance with law and with the law laid down by the Court. We therefore dispose of all these writ petitions with the following directions:
(a) Clause 17 of the Transfer Policy is quashed and set aside and all transfers effected on the basis of D.O./U.O. notes are quashed and set aside and are not permitted now or in future;
(b) If the petitioners in all these petitions or other employees, as also the private respondents have served at one particular place of posting beyond the normal tenure, it will be open to the respondent-State to transfer them in accordance with law;
(c) The provisions of the Transfer Policy shall be in consonance with the directions issued by this Court in Amir Chand''s case (supra). Any provision, which does not comply with the directions, will not be implemented.
10. We note that despite the law pronounced by this Court on the principles as laid down by the Hon''ble Supreme Court in various judgments, transfers are being effected contrary to those principles. The docket of this Court has become choked with petitions challenging such transfers, which not only affects the calendar of the Court but also has deleterious effect on the education system as most of the petitioners are teachers, which is not to say that employees of the other departments are not approaching this Court for cancellation of transfers on D.O./U.O. notes.
7. In view of what has been stated hereinabove, the impugned order having been issued pursuant to UO note reproduced supra, is not legally sustainable and as such deserves to be quashed and set aside.
8. Otherwise also, the incumbency position of both, the 4th respondent and the petitioner, as apparent from the record produced by learned Additional Advocate General, reads as follows:
Smt. Maya Devi, JBT, Home address: Village Bhatoli, Post Office Majyawen, Tehsil Ghumarwin, District Bilaspur
Remarks: She remained in Home Panchayat School, i.e. GPS Bhatoli, Satahli, Malyawar w.e.d. 20.3.92 to 14.9.12 and she is working in GPS Dhanipukhar since 14.9.12 where she has not completed her normal stay and managed her transfer.
Sh. Dalip Singh, JBT, GPS Bhatoli, E/B Ghumarwin-II, Home Address: Village-Tikari Sanaur, Post Office Rohin, Tehsil Ghumarwin, District Bilaspur, HP
9. It is seen that except for the transfer of the 4th respondent to Govt. Primary Centre School, Dhanipukhar on 14.9.2012, she right from the day of her appointment i.e. 20.3.1992, remained posted in such schools, which were situated at a distance of 100 metres, 10 kilometres, 100 metres and 3 kilometres respectively from her native place. She was transferred to Dhanipukhar during the last year on 14.9.2012. She managed her transfer vide impugned order Annexure P-1 within 11 months of her stay there to Govt. Primary School, Bhatoli, which is at a distance of 100 metres from her home. True it is that the petitioner also remained posted w.e.f. 10.1.2007 till date in Govt. Primary School, Amarsinghpura and Bhatoli, the present place of his posting, at a distance of 3 kms. from his native place. We, therefore, leave it open to the respondents to transfer the petitioner from his present place of posting, however, in accordance with law and not for any other consideration.
10. If we come to CWP No. 7251/2013 filed by respondent No. 4 Smt. Maya Devi, of course the petitioner (respondent No. 5 therein) was duly served and he even filed the reply also, however, pursuant to the statement made by learned Assistant Advocate General, the said writ petition was disposed of finally vide order dated 30.9.2013, which reads as follows:
Mr. J.S. Guleria, learned Assistant Advocate General under instructions from Sh. Pritam Singh Dhatwalia, Deputy Director, Elementary Education, Bilaspur, submits that within two days, order transfer dated 23.8.2013, shall be complied with. As such, no other and further orders are required to be passed in the present petition. Disposed of as such, so also the pending applications(s), if any.
11. Therefore, there is no adjudication of the matter on merits in that petition and to the contrary, respondent No. 4 who is recipient of UO Note, is not justified in seeking direction qua enforcement of the impugned order.
12. Before parting with, we deem it appropriate to point out that respondent No. 4 is guilty of suppressing the facts from this Court, as in the reply to the writ petition, reproduced hereinabove, she has denied her transfer on DO note and also that the DO note was brought to the Directorate of Elementary Education on 22.8.2013, on the basis whereof the order of transfer was issued on 23.8.2013.
13. The factual position discussed hereinabove, leaves no manner of doubt that the 4th respondent is recipient of UO note dated 21.8.2013, which was received in the Directorate of Elementary Education on 22.8.2013 and on the basis thereof, the impugned order Annexure P1 had been issued on 23.8.2013. She even concealed this position in CWP No. 7251/2013 and rather blamed the petitioner (respondent No. 5 therein) that under the political pressure he brought, the order of her transfer (impugned order) has not been implemented by the respondents. She, therefore, has hoodwinked this Court and as such rendered herself liable for imposition of costs.
14. With the above observations, the writ petition is allowed. Consequently, impugned order Annexure P-1 is quashed and set aside. We also impose cost of Rs. 5000/- which shall be deposited by the 4th respondent in H.P. High Court Bar Association Welfare Fund, within four weeks from today, failing which the 3rd respondent shall deduct this amount from her salary. We leave it open to the respondents to transfer the petitioner, in accordance with law, if so advised. Petition stands disposed of. Pending miscellaneous application(s), if any, shall also stand disposed of.
