Allowed

Meena Arora v. State of Hp and Ors.

Himachal Pradesh HC27 May 2022CWP/2511/2022

Case brief

AI extract

What is this about?

This judgment quashes a transfer order passed against a teaching staff member based on complaints without holding a verified inquiry or departmental proceedings. The court held that transferring an employee on capital, without inquiry, constitutes malice in law. Consequently, a related petition filed by another teacher was dismissed as infructuous.

What did the court decide?

The impugned transfer order dated 21.4.2022 is quashed and set aside. The other petition is dismissed as infructuous.

Meena Arora Vs State of Hp and Ors. — Service and Employment | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 27^th DAY OF MAY, 2022

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BEFORE

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HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN

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HON’BLE MS. JUSTICE JYOTSNA REWAL DUA CIVIL WRIT PETITIONS NO. 2511 OF 2022 AND 2637 OF

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2022

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1. CWP NO. 2511 OF 2022

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Between:

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MEENA ARORA WIFE OF SH. BISHAN DASS VII PATTA P.O. N NASWAL TEHSIL GHUMARWIN DISTRICT BILASPUR, H.P.

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…PETITIONER

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(BY MR. ANUP RATTAN, ADVOCATE)

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AND

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1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

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2. DIRECTOR ELEMENTARY EDUCATION, HIMACHAL PRADESH, SHIMLA. 3. PRINCIPAL, GSSS SUNHANI TEHSIL GHUMARWIN DISTRICT BILASPUR, HP 4. J R KATWAL SON OF SH. ROHIL RAM KATWAL RESIDENT OF VILLAGE ROPI P.O. AND TEHSIL JHANDUTTA DISTRICT BILASPUR, H.P. 5. MEENA KUMARI WIFE OF NOT KNOWN TO PETITIONER PRESENTLY POSTED AS TGT GSSS (B) GHUMARWIN TEHSIL GHUMARWIN, DISTRICT BILASPUR, HP

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…RESPONDENTS

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(BY MR. ASHOK SHARMA, ADVOCATE GENERAL WITH MR. SHIV PAL MINHANS, MR. VINOD THAKUR, ADDITIONAL ADVOCATE GENERALS MR. Y.S. THAKUR AND MR. RAJAT CHAUHAN, LAW OFFICER FOR THE RESPONDENTS-STATE)

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(BY MR. T.S. CHAUHAN, ADVOCATE, FOR RESPONDENT NO. 5)

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2. CWP No. 2637 of 2022

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BETWEEN

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MEENA KUMARI WIFE OF SH. VIRENDER KUMAR AGED ABOUT 44 YEARS, RESIDENT OF VILLAGE BARD, POST OFFICE SUNHANI, DISTRICT BILASPUR, HIMACHAL PRADESH PRESENTLY POSTED AS TGT (NM) AT GOVT. SENIOR SECONDARY SCHOOL (BOYS) GHUMARWIN, DISTRICT BILASPUR.

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..PETITIONER

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(BY MR. T.S. CHAUHAN, ADVOCATE)

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AND

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1. STATE OF HIMACHAL PRADESH THROUGH ADDITIONAL CHIEF SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

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2. DIRECTOR, ELEMENTARY EDUCATION, GOVERNMENT OF HIMACHAL PRADESH, SHIMLA,H.P.

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3. SMT. MEENA ARORA WIFE OF (NOT KNOWN TO THE PETITIONER) PRESENTLY POSTED AS TGT (NM) AT GOVERNMENT MIDDLE SCHOOL, BARD UNDER COMPLEX SUNHANI, TEHSIL JHANDUTTA, DISTRICT BILASPUR, H.P.

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(BY MR. ASHOK SHARMA, ADVOCATE GENERAL WITH MR. VINOD THAKUR AND MR. SHIV PAL MANHANS, ADDITIONAL ADVOCATE GENERALS, MR. Y.S. THAKUR, DEPUTY ADVOCATE GENERAL AND MR. RAJAT CHAUHAN, LAW OFFICER FOR RESPONDENTS NO. 1 AND 2.

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(BY MR. ANUP RATTAN, ADVOCATE, FOR RESPONDENT NO. 3)

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These petitions coming on for order this day, Hon’ble

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Mr. Justice Tarlok Singh Chauhan, J passed the following:

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O R D E R

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CWP NO. 2511 OF 2022

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The instant petition has been filed for the grant of following substantive relief:

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“That the transfer order dated 21.4.2022 (Annexure P-2) may kindly be quashed and set aside in the interest of justice and fair play.”

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The petitioner was appointed as TGT Non Medical at

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GMS Kalari and thereafter served at various places. In June, 2019, she came to be transferred to GSSS Sunahi, after making an application for transfer on mutual basis. In March, 2022, the petitioner again submitted an application after obtaining the consent from one Priyanka Chandel for transfer on mutual basis,

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which was approved by the Hon’ble Chief Minister vide letter dated 23.3.2022.

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It is further averred that before this letter could be given effect to, respondent No. 4, who happens to be the MLA of the area, intervened and consequently the request as made by the petitioner was not given effect to. Not only this, respondent No. 4 thereafter issued DO Note requesting the Hon’ble Chief Minister to approve the transfer of the petitioner from GMS Bard to GSSS (B) Ghumarwin without her consent, which in fact has resulted in passing of the impugned order.

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The records of the transfer have been produced by the State which reveal that transfer of the petitioner is not a transfer simplicitor, but has been effected on the basis of complaints made by the members of the School Management Committee (SMC).

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If the transfer is made on the basis of complaints, the least what was required to be done by the respondents was to have at least held an inquiry on the allegations leveled against the petitioner and not simply issue the order of transfer, which is impermissible in law.

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It is one thing to say that the employer is required to pass the order of transfer in administrative exigency, but it is another thing to say that the order of transfer has been passed by way of or in lieu of punishment. When the order of transfer is

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passed in lieu of punishment or to avoid departmental inquiry, the same is liable to be set aside being wholly illegal.

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The State is under obligation to act fairly without ill will or malice-in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. Passing an order for an unauthorized purpose constitutes malice in law.

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In “Somesh Tiwari vs. Union of India & others,

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2009 2 SCC 592, the Hon’ble Supreme Court while dealing with an order of transfer which in fact had been passed as a substitute for punishment, observed as under:

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“16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with,

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save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is ow two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.”

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A similar reiteration of law can be found in a Division

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Bench judgment rendered by this Court in “ Raj Kumar versus

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State of H.P. and another” , Latest HLJ 2014 (HP) Suppl. 243.

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As observed above, in case the department had received any complaint(s) against the working of the petitioner, then the complaint(s) was/were required to be sent to the administrative department, who in turn was required to verify the same and if found to be true, then alone on this ground the petitioner could have been ordered to be transferred.

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Admittedly, this exercise has not been undertaken by the administrative department. Therefore, the order of transfer cannot sustain having been passed capriciously and arbitrarily.

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It needs to be reiterated that if the petitioner has been found indulging in any kind of activity not befitting to his official duty, the respondent-authority could have conducted the inquiry

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and impose appropriate penalty and could not have ordered to transfer her. When a transfer is made without holding the inquiry, the same is not only against the interest of concerned public servant but is also against public interest. It tends to destroy the morale of the government servant and the same is otherwise illegal and cannot receive the seal of approval from this Court.

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Accordingly, the instant petition is allowed and the impugned order of transfer dated 21.4.2022 (Annexure P-2) is quashed and set aside. However, it is made clear that this order shall not come in the way of respondents, muchless prevent them from conducting inquiry against the petitioner, in accordance with law. The parties are left to bear their own costs. The pending application(s), if any, are also disposed of.

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CWP No. 2637 of 2022

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In view of the order passed in CWP No. 2511 of 2022,

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the instant petition is rendered infructuous. Accordingly, the petition is dismissed as infructuous. The pending application(s), if any, are also disposed of.

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(Tarlok Singh Chauhan) Judge

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(Jyotsna Rewal Dua) Judge

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MAY 27, 2022 Kalpana

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Meena Arora v. State of Hp and Ors.

Case brief

What is this about?

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Meena Arora v. State of Hp and Ors.

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