Kapil Vs the State of Hp and Others

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP Nos. 5165, 5167 & 5177 of 2025 Date of Decision: 15.05.2025

___________________________________ 1. CWP No. 5165 of 2025	___________	______	______________________
Kapil State of Himachal Pradesh & Ors.	Versus		……...Petitioner …....Respondents
2. CWP No. 5167 of 2025
Farinder Kumar State of Himachal Pradesh & Ors.	Versus		……...Petitioner …....Respondents
3. CWP No. 5177 of 2025
Mukul Bhabra	Versus		……...Petitioner
State of Himachal Pradesh & Ors.			…....Respondents
Coram
Hon’ble Mr. Justice Sandeep Sha Whether approved for reporting?	rma, Judge. Yes
For the petitioner(s): Mr. Abhis Advocates.	hek Dulta	&	Mr. Vishal Verma,
For the respondent(s): Mr. Anup Kahol, Mr Additional Chauhan, respondent	Rattan, Ad . Vishal Pa Advocate Deputy s-State.	vocate nwar Gener Advo	General, Mr. Rajan & Mr. B.C. Verma, als, with Mr. Ravi cate General, for
_____________________________________ Sandeep Sharma, J .(Oral)_	_____________	______	______________________

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Since common questions of facts and law are involved in all the above-captioned cases and the petitioners herein are aggrieved of order dated 22.02.2025, which is common in all the cases, this Court, after

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having clubbed all the petitions, heard them together and the same are now being disposed of vide common judgment.

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Petitioners, who are Forest Guards, after their having completed normal tenure of posting in hard/tribal area, made representation to the competent authority for their transfer from hard/tribal area to the stations of their choice, but since competent authority i.e. Conservator of Forests (T), Chamba, Forest Circle, Chamba, Himachal Pradesh, rejected the same vide impugned order dated 22.02.2025 on the ground that request for transfer made by the petitioners cannot be accepted on account of huge shortfall of front line staff in Pangi Forest Division, Circle Chamba, petitioners have approached this Court in the instant proceedings. Though same and similar prayer has been made by the petitioners in these petitions, but for the sake of brevity, prayer made by the petitioners in CWP No. 5165 of 2025 is being reproduced herein below:

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“(i) Issue a writ of certiorari, quashing and setting aside Annexure P-4 (the rejection order dated 21.02.2025) as being illegal, arbitrary, and in contravention of the established transfer policy.

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(ii) Issue a writ of mandamus, directing Respondent No.2 to transfer the petitioner to a station of his choice, as

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mentioned in Annexure P-3, in the interest of justice, equity, and fair play.

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Petitioners herein namely Kapil, Farinder Kumar & Mukul Bhabra have been working as Forest Guards in Forest Division Pangi, Circle Chamba for more than three years. Since transfer Policy formulated by the Government of Himachal Pradesh enables an employee working in hard/tribal area to seek his/her transfer to soft area after completion of normal tenure, petitioners herein also made representations (Annexure P-3) to the competent authority, praying therein for their transfer in one of the stations, as detailed in the representations. As noticed hereinabove, afore representations filed by the petitioners came to be rejected on the ground of huge shortfall of front line staff.

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Precisely, the grouse of the petitioner, as has been highlighted in the petitions and further canvassed by learned counsel representing the petitioners is that though there are number of Forest Guards working in the Forest Department, who have not worked in hard/tribal area, but yet petitioners, who have already completed normal tenure of posting, are not being transferred that too on account of shortfall of front line staff. This Court with a view to ascertain the correctness of aforesaid submission

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made by learned counsel for the parties passed the following order dated 05.05.2025:

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“Learned Additional Advocate General to have instructions that how many Forest Guards in the Forest Department have not served the hard/tribal area till date and in that regard, complete details be placed on record on or before the next date of hearing.

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List on 15.5.2025.”

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Pursuant to afore order, learned Additional Advocate General

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has placed on record communication dated 14.05.2025 issued under the signatures of Principal Chief Conservator of Forests (Admn & HRD), O/o Pr. CCF (HoFF), Himachal Pradesh, Shimla, enclosing therewith list of persons, who have not served in hard/tribal areas in Forest Department, which is taken on record.

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Careful perusal of aforesaid communication as well as information annexed therewith suggest that there are as many as 193 Forest Guards posted in Forest Circle Chamba, out of which 79 have not served the hard/tribal area till date. Since transfer policy formulated by the Government of Himachal Pradesh itself provides that an employee working under the Government of Himachal Pradesh shall serve the tribal/hard area once in his service career, coupled with the fact that there are 79

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Forest Guards in Forest Circle Chamba, who have not served hard/tribal area, this Court is persuaded to agree with learned counsel for the petitioners that the reason assigned in the impugned rejection order for not accepting the representations of the petitioners for their transfer from hard area to soft area is wholly untenable.

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Perusal of Clauses 12, 15 and 16.1 of Transfer Policy clearly reveals that an employee after his/her having completed normal tenure of posting i.e. two winters and three summers in tribal area, is entitled to be considered for posting in a soft area or station of his/her choice. Most importantly, norms as taken note hereinabove nowhere suggest that the claim of the petitioners for transfer from tribal area to station of choice or to a soft area is to be considered only against vacancy. To the contrary, a reference to Clauses 12, 15 & 16.1 of the Transfer Policy mandates to consider the claim of such an employee, for posting at any one of the five stations of choice, in which he has not served earlier and with the rider that such station(s) of choice shall be in more than one districts. Coordinate Bench of this Court, in CWP No 525 of 2024 titled as Vijay Chauhan Vs. State of Himachal Pradesh & Ors. , decided on 12.01.2024, dealt with a similar issue and held as under:

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“12. Notably, a similar fact-situation came up for adjudication in CWP No.8483 of 2023, titled as Savita vs. State of Himachal Pradesh, decided on 04.11.2023, wherein, this Court, after considering the mandate of Clauses 12, 15 and Clause 16.1 of the existing transfer policy, has quashed a similar rejection order, wherein, the claim of the petitioner therein, for posting from tribal area to any of the indicated station of choice or to a soft area was rejected on the ground of “non availability of vacancy”. Since this plea in rejection orders was dehors the transfer policy, therefore, the same was quashed and set-aside, with the direction to the respondents to reconsider/re-examine the claim for posting afresh.

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13. In this background, a reference needs to be drawn to the judgment passed by this Court, in case of Savita (Supra) which reads as under:-

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“11. This Court cannot refrain itself from observing that Clauses 12 and 16 of the Transfer Policy issued by the Respondent, mandates the State Authorities Respondents to consider the cases of employees for posting “to” any station in the “Tribal-Hard Areas etc.” [referred to in Para 5 above] and “from” such areas to a “Soft Areas etc.” [referred to in Para 5 above], by adopting a continuous process of change so that all employees, who have not served in such areas even once, should be posted to such areas. This discretion is to be fairly and objectively exercised by sending employees to such areas (Tribal-

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Hard Areas etc.) who have never served in such areas, and secondly, an employee who had served earlier can be sent again to such areas, only if, either due to the cadre being small or due to the fact that available incumbents, [who have never send in such areas] fall in any of the concessional categories mandated in Clause 5 of the Transfer Policy are granted relaxation /exemption by the Competent Authority [under Clause 23 of Existing Norms/Policy] as to achieve the object of uniform and non discriminatory application of norms and principles governing transfers and to ensure fairness in the State action.

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12. The object of Clauses 12 and 16 of the existing Transfer Policy is that benefit of posting “to” and “from” the Tribal/Hard Areas” to the “Soft Areas” and vice versa should be invariably and uniformly applied on rotational basis, to all concerned in a cadre primarily with the twin objective; firstly, the employees who have served in Tribal-Hard Areas earlier are not sent again to these areas; and secondly, to ensure that the employees who have never served in such areas or had enjoyed their leisure postings in soft areas endlessly either by manipulating mutual transfers or adjustments by invoking political patronage or otherwise either by soliciting favours, directly or indirectly, person(s) not

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connected with the affairs of the Respondent-State or by managing written recommendation based on a DO-UO Note reflects a very bad State of affairs, for quiet same time, which is acted upon either by the Competent Authority or by the administrative-transferring authorities, merely because a recommendation was given by a person not connected or even a recommendation given by a legislative-MLA or even the concerned Minister. Such recommendations cannot be acted upon automatically, unless and until such recommendation reveals and is founded on cogent material, justifying public interest and administrative exigencies either due to complaint etc. A recommendation by a legislator-MLA can only be acted upon, in case, it reveals public interest and administrative exigencies i.e. based on complaint etc. in terms of Clause 16 of the existing policy. Action of resorting to transfer of an employee, on the mere asking of such persons, in absence of any material justifying public interest and administrative exigencies amounts to colorable exercise of power leading to arbitrariness in state action, by violating its own norms and principle governing transfers, is deprecated. The transfer of an employee shall accrue, in case, it is based on a proposal, from the administrative transferring authority, justifying public interest and administrative exigencies, on cogent material and then is approved by the Competent

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Authority. Any reverse action, flowing from top to bottom [competent authorities to administrative transferring authority] without any cogent material indicating public interest and administrative exigencies gives rise to unfairness and arbitrariness and exercise of discretion in a discriminatory manner, by ignoring its own norms, leading to perversity cannot be permitted, when, the administrative transferring authority, Head of Department is the best person to adjudge the necessity of transferring or not to transfer an employee in public interest and administrative exigencies. Even, an employee who manages transfers, on extraneous considerations i.e. written recommendations of persons not connected with the affairs of state or even a legislator are equally at fault, when, it is trite law, that an employee who seeks a transfer or cancellation/modification etc. should approach the authorities in the department, who are bound to consider such request and redress the same, within a reasonable time. It is seen that despite requests by an employee, the administrative transfer authorities sit over the matter, compelling such employees to approach Courts or due to in action to seek asylum by way of recommendations. In this background, to ensure fairness in state action, this Court mandates that on receipt of any request/representation for transfer or against transfer the administrative transferring authority are mandated to

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examine the same in the light of applicable norms. In the aforesaid backdrop, this Court hopes and trusts that the Respondents redress the grievances- representation made by an employee for or against transfers expeditiously, not later than two weeks from receipt thereof, so as to ensure expeditious redressal and fairness in state action. 13. Another aspect needs to examined is that after completion of normal tenure of two winters and three summers in the Difficult-Tribal Areas referred to in Clause 16 of the existing Norms governing Transfers, the respondents have retained such incumbents in these areas either by prolonging their stay in the Tribal/Hard Areas, adds and aggravates the unfairness, arbitrariness and discrimination in state action, by ignoring Clause 12 and 16 of its own Policy. The action of the respondents in prolonging the stay in Tribal Hard Areas despite completion of normal tenure of two winters and three summers, as mandated by the Policy, by neither seeking an option nor considering an employee for posting to a station in the ‘Soft Area’ is deprecated by this Court. The respondents-State Authorities cannot ignore the mandate of the law. The respondents cannot ignore uniform and equal application of these norms when, these norms were primarily incorporated in the existing policy keeping in view the mandate of the judgment passed by this Court in

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CWP No.1105 of 2006, titled as Sushila Sharma vs. State of Himachal Pradesh.

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14. The plea of the respondents, in the impugned order, dated 10.10.2023, Annexure P-3, that the petitioner cannot be transferred to soft area i.e. Non Tribal/ Non Difficult/Non Hard/Non Remote/Non Rural areas, despite having submitted a representation, is on the ground that the respondents do not have vacancy at the stations of choice in soft areas as claimed by aforesaid employees, in considered opinion of the Court is arbitrary and perverse, on the ground that the provisions of Clause 12 and 16 of the Transfer Policy nowhere mandates such concession of posting to soft area is only to be extended against vacancy. This plea of the State Authorities, is arbitrary, unjust and perverse and, therefore, this plea dehors any such provision mandating the posting in soft areas after completion of normal tenure of hard area only against vacancy is not borne out from the policy, therefore, the same is quashed.

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15. However, keeping in view the fair submission by Mr. Anup Rattan, learned Advocate General assisted by Mr. B.C. Verma, learned Additional Advocate General to the effect that, in case, the petitioner makes a

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representation, her case shall be considered either against vacancy or against longer stay or otherwise so that her stay in the difficult/rural area is not prolonged any more.

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Accordingly, this Court permits the petitioner to file representation indicating fresh stations of choice in soft area within four weeks; with further directions to the Respondent No.2-Director of Elementary Education to reconsider the entire matter and decide the representation /matter within two weeks thereafter.

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16. In the entirety of the above discussion, the impugned order dated 10.10.2023 (Annexure P3), rejecting the representation of the petitioner for transfer from GSSS Kaffotta, District Sirmaur for posting in a soft areas; is quashed and set aside; with directions to reconsider the entire matter afresh, in light of the observations made hereinabove and the directions contained in Paras 9 to 15 supra.”

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Besides above, it is also worth mentioning that this Court in

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catena of cases have repeatedly advised respondent-State to ensure implementation of Transfer Policy in its letter and spirit so that no scope of complaint of bias or discrimination is left to be made by the employee.

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Since it is quite apparent from the communication dated 14.05.2025 that there are 79 Forest Guards posted in Chamba Circle, who have not worked

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in tribal/hard area till date, there appears to be no impediment for the respondents to accept the prayer made on behalf of the petitioners for the transfer from hard area to soft area, especially when they have completed normal tenure of posting i.e. two winters and three summers.

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Consequently, in view of above, this Court finds merit in all the present petitions and accordingly, the same are allowed. Rejection order dated 21.02.2025 is quashed and set aside in all the cases and respondents are directed to consider and decide the representations of the petitioners afresh within a period of seven days. Needless to say, authority concerned, while doing the needful in terms of instant order, shall afford an opportunity of being heard to the petitioners and pass appropriate orders taking note of observation made hereinabove and if required, requisite number of Home Guards out of 79 Forest Guards, who have longer stay and have not served tribal/hard area even once, may be considered for transfer in place of the petitioners, but while doing so respondents shall strictly abide by the provisions of Comprehensive Guiding Principles-2013, to avoid multiplicity of litigation. Pending applications, if any, stand disposed of.

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May 15, 2025 (sunil)

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(Sandeep Sharma), Judge

Kapil v. the State of Hp and Others

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Kapil v. the State of Hp and Others

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