Dismissed

Vijay Kumar v. State of Hp and Another

Himachal Pradesh HC11 Aug 2023CWP/1899/2023

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging a transfer of a government officer to a 'most difficult' area. The court held that prior service in such areas under different cadres and posts does not bar a transfer in a new administrative post and found no evidence of malafide or sufficient family hardship to interfere with the transfer.

What did the court decide?

The transfer order dated 08.04.2023 was upheld and the writ petition was dismissed.

Vijay Kumar Vs State of Hp and… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.1899 of 2023

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Decided on: 11^th August, 2023 ------------------------------------------------------------------------------------- Vijay Kumar-II …..Petitioner

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Versus State of H.P. and another .....Respondents ------------------------------------------------------------------------------------Coram

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?¹ Yes

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For the Petitioner: Mr. Anil Jaswal, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Ms. Seema Sharma, Deputy Advocate General and Mr. Rajat Chauhan, Law Officer. ------------------------------------------------------------------------------------

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Jyotsna Rewal Dua, Judge

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Petitioner is a serving member of Himachal

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Pradesh Administrative Service. He has taken an exception to the notification dated 08.04.2023, transferring him as Sub-Divisional Officer (Civil), Dodra Kwar, District Shimla.

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2. The undisputed facts set out by the petitioner are as under:-

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2(I). Education Department:-

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2(I)(i). In the year 1999, the petitioner joined as Lecturer (Physics) (Class-II Gazetted) on regular basis in the

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Education Department.

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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2(I)(ii). He remained posted as Lecturer (Physics) at

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GSSS Dodra Kwar, District Shimla for about one year and one month, i.e. from December, 1999 to January, 2001. Dodra Kwar falls under most difficult area (Category ‘E’) under Clause 15 of the transfer policy in vogue.

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2(I)(iii). While posted at GSSS Dodra Kwar as Lecturer, the petitioner made a representation to the Education Department for transferring him from Dodra Kwar.

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2(I)(iv). Petitioner was transferred to GSSS Nagrota Surian, District Kangra and remained posted there from 2001 to 2005. He was posted at GSSS Bankhandi, District Kangra from 2005 to 2008.

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2(II). HPAS Allied:-

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2(II)(i). Petitioner appeared in the Himachal Pradesh Administrative Services (HPAS) Combined Competitive Examination conducted by H.P. Public Service Commission in the year 2008. He was selected as Class ‘A’ Tehsildar (Class-I Gazetted) in the H.P. Revenue Department.

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2(II)(ii). On completion of his probation period in the month of July, 2010, the petitioner was posted as Tehsildar in the tribal area of Bharmour, District Chamba. He remained posted there for three years and nine months.

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2(II)(iii). In the year 2013, the petitioner, on completion

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of his normal tenure at Bharmour, represented to the

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Revenue Department for his transfer from the hard area as per the Comprehensive Guiding Principles-2013, regulating the transfers of H.P. State Government employees. Petitioner’s request was accepted. He was though transferred as Tehsildar Dehra, District Kangra, however, for want of his reliever at Bharmour, the petitioner could not join as Tehsildar Dehra. It was only in March, 2014 that the petitioner could actually leave the tribal area of Bharmour and join Dharamshala, District Kangra as Tehsildar (Recovery). This was under the instructions of the Election Commission of India owing to Parliamentary Elections, 2014.

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2(III). Himachal Pradesh Administrative Service:-

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2(III)(i). Petitioner appeared in HPAS Combined Competitive Examination conducted by the H.P. Public Service Commission in the year 2014. This time he got selected as Himachal Pradesh Administrative Service (HPAS) Officer.

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2(III)(ii). After undergoing training, the petitioner was posted on probation as Assistant Commissioner-cum-Block Development Officer, Development Block Bijhari, District Hamirpur in the year 2015.

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2(III)(iii). On completion of the probation period as an HPAS Officer, the petitioner was ordered to be posted in the

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tribal area of Kinnaur as Assistant Commissioner to Deputy Commissioner at Reckong Peo. Petitioner made a written request to the Personnel Department, stating that he had already served tribal area of Bharmour and most difficult area of Dodra Kwar, therefore, he should not be sent to hard/tribal area again. The transfer order of the petitioner to Reckong Peo was modified and he was posted as Secretary, State Information Commission, Shimla. He remained there for three months.

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2(III)(iv). Petitioner was thereafter transferred to Salooni in District Chamba in the year 2018, where he served as Sub-Divisional Officer (Civil) for two years.

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2(III)(v). In the year 2020, the petitioner was transferred

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as Sub-Divisional Officer (Civil) to Nadaun, District Hamirpur, where he served for two years and eight months.

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2(IV). Present Dispute:-

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2(IV)(i). The respondents issued a notification on 15.01.2023 (Annexure P-1), bringing Ms. Aprajita Chandel as Sub-Divisional Officer (Civil) to the place of the petitioner at Nadaun, District Hamirpur. No posting order was indicated for the petitioner in this notification. The notification provided for issuance of separate posting order in future for the petitioner.

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2(IV)(ii). For about three months, there was no posting

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order for the petitioner.

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2(IV)(iii). Vide notification dated 08.04.2023 (Annexure P-2), the petitioner, who was awaiting his posting, was transferred as Sub-Divisional Officer (Civil), Dodra Kwar, District Shimla.

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3. In the backdrop of above facts, the petitioner

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has preferred the instant writ petition seeking following substantive relief:-

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“(i) That the impugned office order dated 08.04.2023 Annexure P-2 qua the petitioner may kindly be quashed and set aside and the petitioner may kindly be posted at suitable place as he has already served the hard area thrice in his entire service career as lecturer as well as Administrative Officer.”

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4. Petitioner has assailed the transfer order dated 08.04.2023 on following main counts:-

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4(i). The mode and manner in which the petitioner

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has been transferred reflects malafide intentions of the respondents.

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4(ii). Having already served in the hard/most difficult areas, the petitioner could not have been sent again to the hard/most difficult area.

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4(iii). The petitioner is facing adverse family

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circumstances.

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5. I have heard learned counsel for the petitioner and learned Advocate General on the above points. These are being discussed and answered hereinafter:-

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5(I). Mode and manner of petitioner’s transfer to

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Dodra Kwar:-

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5(I)(i). Learned counsel for the petitioner highlighted the fact that while bringing Ms. Aprajita Chandel, HPAS to the place of the petitioner under notification dated 15.01.2023, no posting order was issued to the petitioner. The notification simply stated that petitioner’s posting order will be issued separately. It was only on 08.04.2023 that posting at Dodra Kwar was assigned to the petitioner. For about three months, the petitioner was on ‘road’. Placing on record certain transfer orders, which were issued by the respondents between 15.01.2023 and 08.04.2023, learned counsel for the petitioner stated that the respondents created the vacancy at Dodra Kwar in the interregnum, i.e. after the issuance of notification dated 15.01.2023, where the petitioner was finally adjusted on 08.04.2023.

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Pointing out all these facts, learned counsel for the petitioner contended that the mode and manner in which the petitioner has been transferred from Nadaun to Dodra Kwar shows the malafide intentions of the respondents to harass him.

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5(I)(ii). Having heard learned Advocate General and on perusing the record produced by the respondents, I do not find any force in this submission. The record shows that the petitioner was not the only Officer, who was awaiting posting. There were several other officers, who were awaiting their postings. It is also not the case of the petitioner that the respondents did not pay him salary for the period in question or that he was denied the facilities due to him as per his status. Merely because the posting order was issued about three months later, is not sufficient to draw the inference that petitioner’s transfer was on account of malafides. There is no further allegation levelled by the petitioner. No specific allegation has been levelled by the petitioner against anyone. Petitioner has not been able to demonstrate any malafide on record.

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The point is answered accordingly.

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5(II). Transfer to tribal area:-

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5(II)(i). Learned counsel for the petitioner highlighted with much vigour that the petitioner has already served in Dodra Kwar, falling in most difficult area, from December, 1999 to January, 2001 (one year and one month) as Lecturer (Physics). He had also served the tribal area of Bharmour, District Chamba from July, 2010 to March, 2014 as Tehsildar. Having served in most difficult and

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tribal areas, petitioner could not have been sent once again to Dodra Kwar, where he had already served as Lecturer.

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Attention in this regard was invited to Clause 12 of the office memorandum dated 10.07.2023, whereby Comprehensive Guiding Principles-2013 for regulating the transfer of State Government employees were notified. The clause reads as under:-

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“12. Posting of Employees in Hard/Difficult/Remote/Hard Areas: In view of the observations made by the Hon’ble High Court vide judgment dated 27-08-2007 in CWP No.1105/2006 titled as Sushila Sharma, Head Teacher V/s State of H.P. & others, every department will ensure that all the employees are treated fairly and equally in the matter of transfer and posting. The Departments may also ensure that every employee during his tenure of service, serves in Tribal/Hard/ Difficult Areas and also in Remote/Rural Areas. While making transfers the Department shall ensure that the employees who have already served in Tribal/Hard areas as well as Remote/Rural Areas are not again sent to these Areas and there may be a continuous process of change whereby all the employees have a chance to serve in Tribal/Hard Areas as well as Remote/Rural Areas and measures shall be taken to ensure that employees remained posted in the Urban Areas/Cities for a long period, are transferred and posted to Rural/Remote Areas and Hard/Tribal Areas in the transfer season when the transfers are made. It will be the responsibility of concerned Head of Department/competent authority to relieve the officer/official transferred to tribal/difficult/hard/ remote/rural areas.

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12.1 All the Departments will ensure that all employees during their entire period of service will serve for at least single tenure in the Tribal/Difficult/Hard areas and remote/rural areas. In order to earn their promotion, service in such areas will be mandatory. This would be subject to adequate number of posts being available in such areas. However, this will not apply to those employees who have less than 5 (Five) years to

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superannuate. This stipulation is to be incorporated in R & P Rules wherever applicable. A common provision to this effect has been devised by the Department of Personnel after having obtained the approval of competent authority. No Government employee can claim his transfer or posting as a matter of right. It will be the discretion of the State Government to post/transfer any employee anywhere in the State keeping in view of the administrative exigencies/convenience.”

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5(II)(ii). Apart from above, it was also contended that the petitioner had been transferred in the year 2015 to tribal area of Kinnaur as Assistant Commissioner to Deputy Commissioner at Reckong Peo. This posting was in his capacity as an HPAS Officer. At that time, petitioner had made request to the Department that he having already served in the most difficult/tribal areas, therefore, he should not be sent to these areas. The respondents had accepted the request at the relevant time. After accepting petitioner’s request, it is not open for the respondents now to send the petitioner to most difficult/tribal area once again. 5(II)(iii). Having heard learned counsel for the petitioner as well as learned Advocate General and on consideration of the record, I am not inclined to accept the above contention. The service rendered by the petitioner for one year and one month at Dodra Kwar (most difficult area) was

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in his capacity as Lecturer (Physics), a Class-II (Gazetted) post.

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For achieving better prospects, the petitioner appeared in the HPAS Combined Competitive Examination in the year 2008. He got selected as Class ‘A’ Tehsildar, a Class-I (Gazetted) post in the H.P. Revenue Department. It being a new post, a new cadre, the petitioner on his first posting was sent to the tribal area of Bharmour, where he accordingly joined as such and remained posted for about three years and nine months. It is not the case of the petitioner that he could not have been transferred to Bharmour even though he had already served Dodra Kwar, falling under category of most difficult area, as a Lecturer (Physics). The petitioner had joined as directly recruited Tehsildar, which was altogether a different service, it is for that reason the petitioner had to serve in the hard/tribal area of Bharmour and with that knowledge he served the tribal area.

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Petitioner further excelled in his service career and in the year 2014, he qualified HPAS Combined Competitive Examination and got selected as an HPAS Officer, a premiere administrative service of the State. The previous postings of the petitioner in most difficult area of Dodra Kwar as Lecturer (Physics) and tribal area of

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Bharmour as Class ‘A’ Tehsildar cannot come to the aid of the petitioner in applying Clause 12 of the transfer policy seeking exemption from serving hard/tribal/difficult areas as HPAS Officer. Petitioner has not served any tribal/hard/most difficult area as an HPAS Officer. His previous tenures in these areas were not only in different capacities, but also under different services. His such past terms spent in these areas would not bestow him any privilege for staying away from these areas in the capacity of an administrative officer/HPAS cadre. Even otherwise, the petitioner now belongs to Class-I Gazetted post, that too of HPAS cadre-the premier administrative service of the State. The petitioner is bound to serve where the Department sends him in exigency of service and in public interest. The feeble ground urged about petitioner’s representation having been accepted in the year 2015, exempting him from being sent to hard/tribal/most difficult area on account of his past service rendered in such area, is also not substantiated by the record. His representation had not been dealt by the concerned Department. The competent authority taking note of the representation, allowed the petitioner to remain at that time as the Secretary, State Information Commission, Shimla.

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5(iii) Family circumstances: -

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Petitioner’s mother aged 75 years is stated to be

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a heart patient and his wife a Vocational Teacher, working on outsource basis on a non-transferable job at GSSS Khaniara Khas, Dharamshala, District Kangra. Petitioner’s son had appeared in 10^th Class examinations at the time of filing of the petition. It is for the petitioner to represent to the employer if he is facing some tough times, requiring adjustment in posting and for the employer to decide such representation in accordance with law.

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For all the aforesaid reasons, no interference with the impugned transfer order is called for. The writ petition is accordingly dismissed alongwith pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua August 11, 2023 Judge Mukesh

Vijay Kumar v. State of Hp and Another

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Vijay Kumar v. State of Hp and Another

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