Sarita Thakur Vs State of Hp and Others

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 2598 of 2024 Reserved on: 30.04.2024 Decided on: 06.05.2024.

__________________________________________________________ Smt. Sarita Thakur ...Petitioner Versus State of Himachal Pradesh and others …Respondents _________________________________________________________ Coram_

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

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1 Whether approved for reporting? No

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______________________________________________________ For the petitioner : Mr. Devender K. Sharma, Advocate. For the respondents: Ms. Avni Kochhar, Deputy Advocate General, for respondents No. 1 to 3/State. Mr. Vikas Rathore, Advocate, for respondent No. 4.

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Satyen Vaidya, Judge

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Aggrieved against the transfer order dated 16.03.2024, petitioner has approached this Court by way of instant petition.

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Petitioner is working as TGT (Medical) and is posted at GSSS Lower Palkwah (Una). Vide impugned office order dated 16.03.2024, Annexure P-1, petitioner has been ordered to be transferred to GSSS Badthal Madhana (SMR) and in her place, respondent No.4 has been transferred

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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from GSSS Badthal Madhana (SMR) to GSSS Lower Palkwah (Una).

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The petitioner has alleged that her husband is also a State Government employee and is presently posted as Head Master, Govt. High School Lower Palkwah, District Una and for such reason, the petitioner was also posted at GSSS Lower Palkwah, Una, as per Clause 5.4 of the transfer policy of the State Government. It has also been alleged that the impugned transfer is neither for any administrative exigency nor in public interest, rather, it has been effected only to accommodate respondent No.4 on the recommendation of respondent No.5, who is an extra constitutional authority having no role to play in the administrative affairs of the department. Further, the petitioner has submitted her inability to join at the transferred station on account of her family circumstances.

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Respondent No.4 has filed the reply and has contested the claim of petitioner by making a counter allegation that the petitioner herself has been recipient of a D.O. Note of an extra constitutional authority in the past

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and for such reason, she has no right to challenge the

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impugned transfer on the ground of same having been effected on the basis of D.O. Note. Respondent No.4 has also projected her family circumstances as reason for making request for transfer. It has been submitted that the husband of respondent No.4 is working with NFL Nangal, which is near the place to which respondent No.4 has been transferred.

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On 23.04.2024, the official respondents had placed on record copy of D.O. Note, which has been instrumental in effecting the impugned transfer. Copy of another D.O. Note of the year 2018 has also been placed on record, which is alleged by respondent No.4 to be instrumental in getting the petitioner posted at Lower Palkwah.

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I have heard learned counsel for the parties and have also gone through the records of the case carefully.

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A Division Bench of this Court in case titled Vipender Kalta vs. State of Himachal Pradesh (2021) 3 Shimla Law Cases, 1462 , while delivering judgment dated 20.07.2021, has held as under:

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“ 28 . The citizens have a fundamental right to good governance, which is possible only if government servants are politically neutral and are not transferred or otherwise victimized at the instance of a political party or politician.

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29. It is only when the Court notices gross irregularities being committed by the government in the matters of transfer, it becomes necessary for the court to interfere. Therefore, its time to turn the searchlight on the State Government and remind it that the transfer policy should not be taken lightly and or made a mockery or a tool to transfer government employees on the whims and fancies of the politicians.

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30 . The Government as an ideal employer has a bounden duty to strictly safeguard the interest of its employees against the machinations of politicians. The public servants need to discharge their functions without fear or favour and they need not to toe the line drawn by the politicians.

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31 . If such transfer is allowed to take effect, it would embolden the other political cadre and influential local level politicians of all hues to seek the transfer of unfavourable and upright government officials from their pocket boroughs and to see that they are posted in somewhere else. This would demoralize the government servants and may inspire them to amend their ways in such a way of pleasing each and every one whoever come under the banner of some political party. If the government machinery has to serve well

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the people, their functioning and official routines are to be insulated against the extraneous influences. (Refer Akash Sharma v. State of U.P., 2007 (4) AWC 2899).

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32 . The Hon’ble Supreme Court as also this Court and various other High Courts have held in certain cases that it would be permissible for the administrative authority to consider recommendations of the MLAs or MPs or Ministers concerned, that too, in case they have received complaints regarding the working of the government servants seeking their transfer, however, even then the final decision in this regard has to be taken by the administrative department as the politician cannot don the rule of administration.

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33 . Even otherwise, upholding such kind of transfers would mean compromising with the rule of law, which is a basic feature of the Constitution, which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure.

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34 . Rule of law contemplates governance of laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. 35. Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who has no role in the functioning and business of the administration, therefore, the impugned transfer of the petitioner on the basis of such recommendations cannot be sustained and is accordingly quashed.

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36 . The government would be well advised not to entertain much less encourage such extra constitutional authority to interfere with the administration and governance of the State, or else, there is every likelihood of there being a complete breakdown of rule of law.”

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It has been established on record that the D.O.

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Note, on the basis of which the impugned transfer has been effected has been issued by Vice President of a political party. He is neither elected public representative nor otherwise has any role to play in the administration of the administrative department of petitioner and respondent No.4. In this view of the matter, the impugned order of transfer is in the teeth of judgment passed by a Division Bench of this Court in Vipender Kalta’s case (supra) and cannot be sustained for such reason alone.

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As regards the allegation of respondent No.4 that the petitioner herself has been recipient of a D.O. Note in the past, the record reveals that recommendation was made by an office-bearer of a political party whereby a triangular transfer was suggested between one Smt. Vandana Rana, petitioner and Ms. Deepti. It has been contended on behalf

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of the petitioner that the aforesaid recommendation was not at her instance and otherwise also respondent No.4 has not been able to establish that the aforesaid recommendation was to benefit the petitioner as it involved two other persons. In such circumstances, the inference that petitioner had been beneficial of a D.O. Note in the past, cannot be drawn.

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In result, the petition is allowed. The impugned transfer order dated 16.03.2024, Annexure P-1, is quashed and set-aside.

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The petition stands disposed of in the aforesaid

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terms, so also the pending application(s), if any.

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6^th May, 2024 (Satyen Vaidya) (GR) Judge

Sarita Thakur v. State of Hp and Others

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Sarita Thakur v. State of Hp and Others

Case brief

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