CWP/1656/2019 on 30 December 2019

HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.1656 of 2019 Decided on: 30.12.2019 Rajender Singh Thakur

....…......Petitioner Versus State of H.P. and others ........Respondents _______________________________________________________________

Coram:

Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice. Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner : Mr. V.S. Chauhan, Sr. Advocate, with Mr. Ajay Singh Kashyap, Advocate. For the respondents : Mr. Ashok Sharma, Advocate General, with Mr. Adarsh Sharma and Ms. Ritta Goswami, Additional Advocate Generals, for respondents No.1 & 2/State. Mr. Vinod Thakur, Advocate, for respondent No.3. _______________________________________________________________ Jyotsna Rewal Dua, Judge (Oral). By way of present writ petition, the petitioner has approached this court mainly with the following prayers:- a) To issue writ of certiorari or direction in the nature thereof quashing the transfer order of petitioner Annexure P-1 as unconstitutional, illegal,and contrary to the settled norms with 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

respect to transfer by taking away vested legal rights of the petitioner. b) To issue a writ of mandamus or order or direction in the nature thereof, directing the respondents to allow the petitioner to continue at his present place of posting.”

2. The petitioner has challenged his transfer order dated 17.07.2019 (Annexure P-2, whereby he has been transferred from Government Sr. Senior Secondary, School, Tayali (SML) to Government Sr. Secondary School, Mahori (SML), vice private respondent No.3. The main grouse of the petitioner is that he has been transferred merely on the basis of a D.O. Note issued by the elected representative(s) just to accommodate and adjust private respondent No.3.

3. The impuged transfer order has been challenged on the grounds:- (i) that the petitioner has not yet completed his normal tenure at the present place of posting at Government Sr. Secondary School, Tayali and (ii) that the impugned transfer order has been passed only to accommodate and adjust respondent No.3, who has managed his transfer on the basis of a D.O. Note.

4. Considering the averments and the prayer of the petitioner that his transfer has been effected on the basis of a D.O. Note issued by the elected representative(s) on the request of private respondent No.3, we had called for and perused the record relating to the transfer of petitioner as well as respondent No.3.

5. Record reveals that the transfers of petitioner and respondent No.3 have been effected merely on the basis of a D.O. Note issued by the elected representative(s). It is noticed that the impugned transfer order has been ordered even when the concerned department itself pointed out that the petitioner could not have been transferred taking into account his short stay as Principal at Government Sr. Secondary School, Tayali. It is seen that the said proposal was straightway implemented by the Competent Authority without applying its independent and uninfluenced mind before issuing impugned transfer order dated 17.07.2019 (Annexure P-2).

6. Since in the instant case, the impugned transfer order (Annexure P-2) has been issued merely on the proposal of elected representative(s) by the Competent Authority without applying its uninfluenced and independent mind whatsoever, therefore, the instant writ petition is allowed. Accordingly, impugned transfer order dated 17.07.2019 (Annexure P-2), is quashed and set aside. However, the Competent Authority is at liberty to consider the matter of transfers of petitioner as well as private respondent No.3 afresh, strictly in accordance with Transfer Policy. With the aforesaid observations/directions, the writ petition stands disposed of, so also the pending miscellaneous application(s), if any. Copy 'Dasti'.

(L. Narayana Swamy)

Chief Justice

(Jyotsna Rewal Dua) December 30, 2019

Judge (Yashwant)