CWP/4116/2019 on 31 December 2019

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 4116 of 2019

Decided on: 31.12.2019 Asha Ram .......Petitioner Versus State of H.P and others …...Respondents

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge The Hon’ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. T.S. Chauhan, Advocate. For the respondents: Mr. Vikas Rathore, Addl. A.G with Mr. Narinder Guleria, Addl. A.G, Mr. J.S. Guleria, Dy. A.G and Mr. Raju Ram Rahi, Dy. A.G for respondents No. 1 and 2. Mr. N.K. Tomar, Advocate for respondent No.3. Dharam Chand Chaudhary,

J. (Oral)

The petitioner is working as Naib Tehsildar and presently posted as such in Tehsil office Nalagarh, District Solan, H.P. He has now been ordered to be transferred to Forest Settlement Circle, Shalaghat, District Solan, H.P.

2. The complaint is that his transfer has been ordered on the basis of a D.O. note. It is keeping in view such averments, following order came to be passed in this writ petition on 19.12.2019:- “Learned Advocate General has placed on record the written instructions as directed on the previous date. 1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

However, learned counsel representing the petitioner has produced the copy of a note of Shri K.L. Thakur, stated to be the former MLA from Nalagarh constituency. Therefore, respondent No.2 to produce the record of the transfer of the petitioner from Nalagarh to Darlaghat, on the next date. List on 31.12.2019.”

3. Consequently, learned Additional Advocate General has produced the record. Note 52 and 53 in the noting portion of the record pertains to transfer of eight number of Naib Tehsildars on the basis of D.O. Notes issued by the office of the Hon’ble Chief Minister, whereas, proposal at Serial No. 9 of note 53 and 54 pertains to transfer of Shri Nihal Chand Kashyap, Naib Tehsildar Sub-Tehsil Kunihar to Tehsil Nalagarh vice Shri Asha Ram (petitioner herein) on verbal directions of the authorities. Such authorities as per note, re-numbered again as 54 is the office of the Hon’ble Chief Minister. This note is re-produced here as under:- “N-52 onwards for perusal Transfer proposals of Naib Tehsildar at Sr. No. 1 to 8 are based on DO notes whereas proposal at Sr. No. 9 is as per verbal directions from CM office.”

4. It is thus seen that the proposal to transfer the petitioner from Tehsil office Nalagarh to some other place has not been routed through the office of the Administrative Head of the Department of revenue and rather has come from the office of the Hon’ble Chief Minister. This proposal when examined

further in the Revenue Department to the Government of Himachal Pradesh and the matter discussed by the Principal Secretary (Revenue) with Deputy Secretary (Revenue), the order of transfer of Naib Tehsildars eight in number at Serial No. 1 to 8 of Note 52 and 53 were ordered to be issued, however, the proposal qua the transfer of the petitioner and Nihal Chand was recommended to be rejected in view of Tehsil Arki being home Sub-Division of the petitioner, he could have not been transferred there. Even relaxation qua posting of Naib Tehsildar in his home Sub-Division was also not recommended to be sought from the competent authority as provided under Clause 3 of the “Comprehensive Guiding Principles-2013 for regulating the transfer of State Government employees”. The matter when further placed before the competent authority, Nihal Chand aforesaid was approved to be transferred to Nalagarh Tehsil and as regards the petitioner against vacant post without mentioning any station. Accordingly, the petitioner initially was proposed to be transferred against the vacant post of Naib Tehsildar lying vacant in the office of Settlement in tehsil Circle, Darlaghat, District Solan, however, before this proposal could have been materialized, it transpired that the post in the office of Settlement, in tehsil Circle, Darlaghat, District Solan was not vacant being already filled-up. It is in these circumstances, the petitioner was ultimately transferred vide impugned order,

Annexure P-3 as Naib Tehsildar, Forest Settlement Circle, Shalaghat, District Solan against a vacant post. Shalaghat is a place which falls under Tehsil/Sub-Division Arki. The petitioner is also permanent resident of Tehsil and Sub-Division, Arki. As per guiding office memorandum, Annexure P-4, a Naib Tehsildar cannot be posted in his home Sub-Division. As regards the relaxation, the Principal Secretary (Revenue) has not recommended the same to be sought from the competent authority, as is apparent from the perusal of note 57 recorded with hand. The present, therefore, is a case where though no D.O note is on record, however, the petitioner has been transferred at the behest of political executive i.e. the office of the Chief Minister and not by the Administrative Head after due application of mind.

5. True it is that this Court in Sanjay Kumar vs. State of Himachal Pradesh and others, 2013(3) Shimla Law Cases 1373 and also Amir Chand vs. State of Himachal Pradesh 2013(2) Him. L.R. 648 and in its recent judgment rendered in CWP No.2490 of 2019, titled Dalip Singh versus State of H.P. & Others has held that the Chief Minister and Ministers/elected representatives may recommend the transfer of an employee, however, the transfer order has ultimately to be issued by the Administrative Head on application of mind and uninfluenced by the recommendations so made by the elected

representative. The impugned order Annexure P-3, therefore cannot be said to have been issued by the Administrative Head on application of mind and uninfluenced by the political pressure. On the other hand, in terms of transfer policy, Annexure P-4, the petitioner being a Naib Tehsildar in rank could have not been posted in his home Sub-Division. There is also nothing on record to show that he has been transferred from Tehsil office, Nalagarh to Forest Settlement Circle, Shalaghat, District Solan in larger public interest. It is rather Nihal Chand, the private respondent has been accommodated in Tehsil office, Nalagarh against the post which was occupied by the petitioner. Not only this but the petitioner has been transferred well before the completion of his normal tenure as Naib Tehsildar, Nalagarh. The impugned order Annexure P-3, as such, is not legally sustainable. The same is accordingly set aside, leaving it open to the respondents to transfer the petitioner, if required, in accordance with law and also the transfer policy.

6. The writ petition is accordingly disposed of, so also the pending application(s), if any. (Dharam Chand Chaudhary)

Judge

December 31, 2019

(Anoop Chitkara) (naveen) Judge