Partly allowed

Lakhwinder Kaur v. State of Punjab and Ors.

Punjab & Haryana HC2 Aug 2010CWP/12104/2010

Case brief

AI extract

What is this about?

Petitioner challenged her transfer to a post declared surplus. The Court quashed the order due to administrative arbitrariness, directed vacation of the post, and mandated maintenance of a unified vacancy database to prevent future harassment.

What did the court decide?

Transfer order quashed. Perpetual stay on HR/transfer orders. Secretary directed to maintain single vacancy data and ensure transfers only against vacant posts.

Lakhwinder Kaur Vs State of Punjab and Ors. — Service and Employment | Punjab & Haryana HC (2010)

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CWP No. 12104 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 12104 of 2010

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DATE OF DECISION: August 02, 2010

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Lakhwinder Kaur

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.........PETITIONER(S)

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VERSUS

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State of Punjab and others

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......RESPONDENT(S)

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CORAM: HON'BLE MR. JUSTICE AJAI LAMBA

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Present: Mr. D.K. Virk, Advocate, for the petitioner(s).

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Mr. B.S. Chahal, DAG, Punjab.

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AJAI LAMBA, J. (ORAL)

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This petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order Annexure P-1 dated 29.06.2010, whereby the petitioner has been transferred from S.S. Kaler Kalan to Kalianpur.

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When the matter was heard on 13.07.2010, the following order was passed:-

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“This petition has been filed in challenge to order Annexure P-1 vide which, the petitioner has been transferred in terms of rationalization policy. Condition no. 1 reads as under:-

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“1. In case the post is not vacant or is surplus, the

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CWP No. 12104 of 2010

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orders will not be implemented and will automatically be considered as cancelled.”

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Relevant portion of condition no. 2 reads as under:-

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“2. .........Before relieving an employee it

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should be ensured that the post where an employee has been transferred the same is vacant.......”

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Learned counsel contends that the petitioner was transferred to Government Middle School, Kalianpur. It transpires from Annexure P-2 dated 08.06.2010 that the Headmaster had already conveyed to the District Education Officer that there is only one post of SS Master available in the school, where a teacher is already serving. In such circumstances, the petitioner could not have been posted at that place.

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Notice of motion for 02.08.2010.

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District Education Officer, (S.S.) Gurdaspur is directed to remain present in Court to show as to under what circumstances, the conditions extracted above have been incorporated in the order. It is for the administration to first assess and evaluate the available post and only thereafter orders of posting/transfer could be issued.

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Further in the case in hand, the action of the respondent is clearly arbitrary and without any application of mind. It seems that the administration is failing in its duties in doing its job.

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Operation of Annexure P-1 shall remain stayed.”

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CWP No. 12104 of 2010

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Mr. Gurmeet Singh, DEO (S.S.) Gurdaspur is present in Court and has filed a short affidavit sworn on 02.08.2010, which is taken on record.

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As per the affidavit, transfer of the petitioner has been cancelled with immediate effect and the relief prayed for in the petition has been granted.

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Although this case has been rendered infructuous, however, the Court is concerned about the conditions incorporated in the orders of transfer, as reflected in above reproduced order. Sh. Gurmeet Singh has been asked to explain reasons and justification of incorporating these conditions in all the orders of transfer. It has been brought out by Mr. Gurmeet Singh that the conditions in the order of transfer as extracted in above reproduced order are included because transfer orders are issued at various levels viz. by DEO, DPI and at Secretary level. There might be overlapping of orders of transfer and a person might be transferred on a post declared surplus or two persons might be transferred against the same post by two authorities. Therefore, the conditions as reproduced are incorporated in the orders of transfer.

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I find the practice of the respondents to be a bad administrative practice. Public exchequer money is wasted by virtue of transfer at a place where ultimately it is found that the post is not vacant or has been declared surplus.

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Even otherwise a lot of harassment is caused to an employee who is asked to go and join a new place, however, when the person goes to join the place, it is found that the post is not available for his/her joining, as it has been declared surplus or is not vacant. Such orders are in total

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CWP No. 12104 of 2010

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disregard to the convenience and rights of the employee. An employee cannot be harassed by creation of such a fluid and uncertain conditions created by the respondents. An employee is not alone and has his dependents who might be his aged parents, wife and school going children. To subject an employee to transfer, only for him to find that the new place of posting is not available for him to join, is certainly subjecting an employee to unnecessary and avoidable hardship which cannot be permitted in equity and for humanitarian reasons. Passing of such orders is not only irrational and unreasonable but also irresponsible. It clearly shows administrative inefficiency and inadequacy.

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Secretary, Department of Education, Civil Secretariat, Punjab, is directed to look into the matter and ensure that a single data is maintained throughout the State so that a person is transferred only against a vacant post, or against a post available, and not otherwise.

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The matter is disposed of with the above directions.

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Copy of the order be given under signatures of the Court

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Reader.

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02.08.2010 (AJAI LAMBA) shivani JUDGE

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

Lakhwinder Kaur v. State of Punjab and Ors.

Case brief

What is this about?

What did the court decide?

Lakhwinder Kaur v. State of Punjab and Ors.

Case brief

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What did the court decide?

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