CWP/4116/2019 of ASHA RAM Vs STATE OF HP AND OTHERS 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, JudgeThe 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.Gwith Mr. Narinder Guleria, Addl.A.G, Mr. J.S. Guleria, Dy. A.G andMr. Raju Ram Rahi, Dy. A.G forrespondents No. 1 and 2.

Mr. N.K. Tomar, Advocate forrespondent No.3.

Dharam Chand Chaudhary, J. (Oral)

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

2. The complaint is that his transfer has been orderedon the basis of a D.O. note. It is keeping in view suchaverments, following order came to be passed in this writpetition on 19.12.2019:- “Learned Advocate General has placed on record thewritten 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 hasproduced the copy of a note of Shri K.L. Thakur, stated tobe the former MLA from Nalagarh constituency.

Therefore, respondent No.2 to produce the recordof the transfer of the petitioner from Nalagarh toDarlaghat, on the next date.

List on 31.12.2019.”

3. Consequently, learned Additional Advocate Generalhas produced the record. Note 52 and 53 in the noting portion ofthe record pertains to transfer of eight number of Naib Tehsildarson the basis of D.O. Notes issued by the office of the Hon’bleChief Minister, whereas, proposal at Serial No. 9 of note 53 and54 pertains to transfer of Shri Nihal Chand Kashyap, NaibTehsildar Sub-Tehsil Kunihar to Tehsil Nalagarh vice Shri AshaRam (petitioner herein) on verbal directions of the authorities.Such authorities as per note, re-numbered again as 54 is theoffice of the Hon’ble Chief Minister. This note is re-producedhere as under:- “N-52 onwards for perusal Transfer proposals of Naib Tehsildar at Sr. No. 1 to 8 arebased on DO notes whereas proposal at Sr. No. 9 is asper 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 hasnot been routed through the office of the Administrative Head ofthe Department of revenue and rather has come from the officeof the Hon’ble Chief Minister. This proposal when examined

further in the Revenue Department to the Government ofHimachal Pradesh and the matter discussed by the PrincipalSecretary (Revenue) with Deputy Secretary (Revenue), the orderof transfer of Naib Tehsildars eight in number at Serial No. 1 to 8of Note 52 and 53 were ordered to be issued, however, theproposal qua the transfer of the petitioner and Nihal Chand wasrecommended to be rejected in view of Tehsil Arki being homeSub-Division of the petitioner, he could have not beentransferred there. Even relaxation qua posting of Naib Tehsildarin his home Sub-Division was also not recommended to besought from the competent authority as provided under Clause 3of the “Comprehensive Guiding Principles-2013 for regulating thetransfer of State Government employees”. The matter whenfurther placed before the competent authority, Nihal Chandaforesaid was approved to be transferred to Nalagarh Tehsil andas regards the petitioner against vacant post without mentioningany station. Accordingly, the petitioner initially was proposed tobe transferred against the vacant post of Naib Tehsildar lyingvacant in the office of Settlement in tehsil Circle, Darlaghat,District Solan, however, before this proposal could have beenmaterialized, it transpired that the post in the office ofSettlement, in tehsil Circle, Darlaghat, District Solan was notvacant being already filled-up. It is in these circumstances, thepetitioner was ultimately transferred vide impugned order, Annexure P-3 as Naib Tehsildar, Forest Settlement Circle,Shalaghat, District Solan against a vacant post. Shalaghat is aplace which falls under Tehsil/Sub-Division Arki. The petitioner isalso permanent resident of Tehsil and Sub-Division, Arki. As perguiding office memorandum, Annexure P-4, a Naib Tehsildarcannot be posted in his home Sub-Division. As regards therelaxation, the Principal Secretary (Revenue) has notrecommended the same to be sought from the competentauthority, as is apparent from the perusal of note 57 recordedwith hand. The present, therefore, is a case where though no D.Onote is on record, however, the petitioner has been transferredat the behest of political executive i.e. the office of the ChiefMinister and not by the Administrative Head after dueapplication of mind.

5. True it is that this Court in Sanjay Kumar vs. Stateof Himachal Pradesh and others, 2013(3) Shimla LawCases 1373 and also Amir Chand vs. State of HimachalPradesh 2013(2) Him. L.R. 648 and in its recent judgmentrendered in CWP No.2490 of 2019, titled Dalip Singh versusState of H.P. & Othershas held that the Chief Minister andMinisters/elected representatives may recommend the transferof an employee, however, the transfer order has ultimately to beissued by the Administrative Head on application of mind anduninfluenced by the recommendations so made by the elected

representative. The impugned order Annexure P-3, thereforecannot be said to have been issued by the Administrative Headon application of mind and uninfluenced by the politicalpressure. On the other hand, in terms of transfer policy,Annexure P-4, the petitioner being a Naib Tehsildar in rank couldhave not been posted in his home Sub-Division. There is alsonothing on record to show that he has been transferred fromTehsil 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 beforethe completion of his normal tenure as Naib Tehsildar, Nalagarh.The impugned order Annexure P-3, as such, is not legallysustainable. The same is accordingly set aside, leaving it opento the respondents to transfer the petitioner, if required, inaccordance with law and also the transfer policy.

6. The writ petition is accordingly disposed of, so alsothe pending application(s), if any.

(Dharam Chand Chaudhary)

Judge

December 31, 2019

(naveen)

(Anoop Chitkara) Judge