Chaman Lal vs Coram
2021 Latest Caselaw 3 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT
                       SHIMLA

                                CWP No. 5370 of 2020




                                                         .
                                Decided on : 1.1.2021





    Chaman Lal

                                              ...Petitioner





                     Versus

    State of H.P. & another




    Coram
                    r         to          ...Respondents
    ___________________________________________

    Hon'ble Mr. Justice Sureshwar Thakur, Judge.

    Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
    Whether approved for reporting? Yes
    ________________________________________________
    For the petitioner :   Mr.Sanjeev     Bhushan,   Senior


                           Advocate with Mr.Rajesh Kumar,
                           Advocate.

    For the respondent : Mr. J.S. Guleria, Dy. A.G.






    Sureshwar Thakur, Judge (oral)

The writ petitioner, through the instant writ

petition, impugns Annexure P-1, where through, he has

been transferred from Kullu, as DM, FWD, Kullu to

Kinnaur, as DFO, Kinnaur. Annexure P-3 was made,

within less than two years expiring, since the making, of,

Annexure P-1, and, where through, he became transferred

from the post of DFO Kinnaur, to the post of DM, FWD,

Rampur. Resultantly, the learned counsel for the

petitioner, argues that the right, of, completion, of, a

tenure of three years, as DFO, Kinnaur, has become

.

denied, to the petitioner, despite, the relevant norm(s),

hence encapsulated in the apposite policy, making

enshrinements, rather forbidding the employer to, before

expiry of three years, of, the officers/officials concerned,

at the stations concerned, hence make an order, of,

transfer upon him. However, the vigor of the afore

espousal becomes deadened, through a perusal, becoming

made, of, clause 10, of, the guiding principles, as become

formulated, for regulating the transfer(s), of, Public

Officers/officials, clause whereof, becomes extracted

hereinafter:

"10. The Government can transfer any

Officer/Official at any time irrespective of stay, in

view of administrative exigency, in the public

interest. However, normally the tenure/stay of an

Officer/Official at one station shall be three years

which will not be applicable to the Officer of

IAS/HPAS/HPPS/HPFS, other allied services and

all Class I and II Officers"

Inasmuch as, reading(s), of, the afore extracted relevant

clause, of, the apposite policy, makes trite underlinings,

that, the normal stint, of, any Public Officer/official, at

.

the station concerned, shall be three years, and,

thereafter only the employer becoming mandatorily

injuncted, given the imparting(s), of, a mandatory

parlance, to, the phrase, "shall", occurring therein, to,

post him/her elsewhere (i) whereupon, the shortening, of

the stint, of, three years, of, the petitioner, as DFO,

Kinnaur, hence through the impugned transfer order, may

become invalidated, (ii) however, since it also becomes

prescribed therein, that the afore prescription, does

become waned, upon the apposite authority, upon

existence, of, administrative exigency(s), or, in public

interest, deeming it fit, to, curtail the afore stint, or,

tenure, of, three years, of any Public Officer/Official, at

the station(s) concerned.

2. Besides, when the afore clause is, also, enshrined

to be inapplicable, to all officers belonging , to,

IAS/HPAS/HPPS/HPFS, other allied services, and, is also

made inapplicable, to, all Class I and II Officers, and,

importantly, when the petitioner, is, uncontrovertedly, an

Officer, belonging to the Himachal Pradesh Forest

Services, (a) thereupon, merely upon his tenure, of, three

years, as DFO Kinnaur, becoming shortened, through the

.

making(s), of, the afore made transfer order, he cannot

hold any valid grudge, against the impugned transfer

order.

3. Moreover, since it is also un-repulsedly contended,

on an affidavit, hence sworn by a responsible functionary,

qua the State/competent authority, also meteing its

approval thereto, thereupon, the vigor of any oral

espousal, addressed before this Court, by the learned

counsel, for the petitioner, that it is made without any

approval being granted thereto, by the competent

authority, becomes completely unfounded. In summa, the,

afore made submissions become mis-founded.

4. The learned counsel for the petitioner, has also

drawn the attention of this Court, to Annexure R-7,

Annexure whereof, is, a complaint addressed against the

writ petitioner, by the addressee thereof, to, the Hon'ble

Chief Minister, Himachal Pradesh, wherein imputations,

are made, against the writ petitioner, vis-à-vis, his in

breach, of the apposite norms and guidelines, rather

awarding works, to, certain underserving aspirants. He

further argues, that since the afore complaint, is,

contended in the reply/affidavit, furnished, to, the CWP,

.

by the respondent, to be awaiting, an, adjudication, (i) and

also when for ensuring, the, makings, of, an impartial

adjudication thereon(s), does, hence become, the guiding

factor, for, the writ petitioner, rather through the

impugned Annexure, becoming transferred, (ii) thereupon,

the impugned Annexure(s), acquiring a punitive tinge or a

vindictive overtone, that hence, it is not made for

subserving any public interest, or for subserving any

administrative exigency. He contends that the impugned

transfer order, rather becomes ingrained with malafides,

and political vindictiveness, and, thereupon, it warrants

an interference, being made, by this Court.

5. For fortifying the afore made submission, the

learned counsel for the petitioner, depends upon, a verdict

made by this Court, on 3.1.2020, upon CWP No. 2587 of

2019, case titled as, "Joginder Rao versus State of

Himachal Pradesh and another", (i) wherein a

Coordinate Bench of this Court, after considering the

verdicts pronounced by this Court, in case titled as, "Raj

Kumar versus State of Himachal Pradesh and others,

decided on 31.12.2014, and, also its after considering a

verdict, pronounced by this Court, in case titled as " Amir

.

Chand Vs. State of Himachal Pradesh", reported in

2013(2) Him.L.R.648, (ii) wherein an expostulation of law

becomes cast, that upon any complaint being received,

from, public representative(s), hence against Public

Officers/Officials concerned, (iii) thereupon, upto

verification, being made, qua truth(s) thereof, (iv)

thereupto the order of transfer, becoming, a, colorable

order, of, transfer, or it acquiring overtones, of,

punitivness, (v) whereupons it also acquiring a taint of

voidness or illegality, (vi) besides, it has also been

expostulated therein(s) that vis-à-vis, the imperative

facet(s) of existence(s), of, administrative exigency(ies), or,

of administrative necessities, besides, vis-à-vis, the

apposite transfer order(s), sub-serving public interest,

rather the apposite therewith empowerment(s), falling

within the domain, of, Administrative Heads, or rather(s)

not falling within the domain, of, Public Representatives,

nor within the domain(s), of, the Highest political

executive(s).

6. Be that as it may, in a judgment rendered in

Amir Chand's case (supra), obviously, given, the,

democratic nature, of, our polity, there is no absolute

.

exclusion, of, democratically elected political executives,

against their not participating, in the relevant process, of,

making transfer(s), of, public officers/officials concerned.

Nonetheless, the transfer order, is, mandated therein, to

be free from any tinge or overtones, of, punitiveness,

rather imbuing it, upon any un-verified complaint, rather

becoming the, motivating or guiding factor, with, the

authority(ies) concerned, in its making the apposite

order, of, transfer.

7. However, no fixed ratio-decidendi, can become

culled therefrom, for making any unflinching

determination rather omnibously appertaining qua

therethrough any straightjacket formula, or any rigid

dictat, becoming cast,(i) qua dehors, the position, status

and influencing capacity, of, the Public Officers/Officials

concerned, against whom, any unverified allegation, of,

his/their purportedly committing any mis-demeanor, or

his/their committing breach, of, any Rules, of, service, (ii)

thereupon, unless any inquiries, qua therewith become,

hence completely concluded, rather constituting a

completest interdiction, against the authority concerned,

to, hence make an order, of, transfer, upon the purported

.

delinquent concerned.

8. Be that as it may, in any democratic polity, Public

Representative(s), who obviously, enjoy the mandate, of,

public, and who also hold an interface with the public,

rather, for ensuring the efficient manning, of, the

Administrative works, by all officials/officers concerned, (i)

may, unless the making, of, aspersion(s) by them, against,

the, purported ill working(s), of, Public Officers/officials

concerned, becoming evidently established, to, become

steeped in a deep vendetta, nursed by them, against

public officials concerned, and, who otherwise, are,

efficient, and, honest, do, hold some well canalized

discretion(s), rather for ensuring, the, healthy running, of

public administration, by Public Officers/officials

concernds', hence in, the, processes, appertaining, to the

transfers, of, public officials/officers concerned, (ii) and,

yet again with a rider that, upon, the highest political

executive(s), becoming seized thereof, he/it making an

independent objective, application of mind, to the

necessity(ies), of, administrative exigency(ies), becoming

therethrough sub-served, or public interest, also

becoming therethrough hence subserved.

.

9. Needless to say, that, the Administrative Officers,

or the heads, of, the departments concerned, , though also

likewise in the process, of, making(s), of, orders of

transfers, hence hold clout in the afore facet, yet their

discretion is also enjoined, to be well regulated or well

canalized, hence for, ensuring obviation(s) of sprouting(s),

of, ill occurrence(s), of, capriciousness and arbitrariness,

in the exercising(s), by them, of, his/their powers, of,

transfers. Resultantly, therethrough, there would be

balancing or accrual of proportionality, interse the role of

elected representatives, in the running, of, the

Administration, and, of the Administrative Heads, or

Administrative Officers. Necessarily, both are to be in

conjunct, or are to be in the complete synchronization, in

theirs ensuring, the, operations, of, or, for, ensuring the

streamlined manning(s), of, the administration, by the

public officer/officials concerned, hence on all facets, or

both are to work collectively, for hence theirs ensuring

qua vice(s) of arbitrariness, and, capriciousness, rather

not making their deepest percolation(s), during the

collective, engagements by them, in, the processes,

appertaining, to, the exercising(s), by each of them, of

.

powers, of, making transfer(s), of public officers/officials

concerned. Dehors, the afore echoing(s), emanating from

this Court, yet makes it incumbent, upon it, to also

proceed, to draw a parity, interse the judgment (supra),

i.e. Rattan Chand, and especially, interse, the factual

scenario prevailing therein, vis-à-vis, the factual scenario

prevailing hereat, for hence this Court, becoming

facilitated, to, draw the apposite, applicable hereat parity.

10. In judgment (supra), the therein petitioner, was

working as Principal in Government, Senior Secondary

School (Boys), Bilaspur, whereat a female teacher, took to

file a false and concocted complaint, encapsulating

therein allegations, of hers' becoming, harassed by the

petitioner therein. The afore complaint, was addressed to

the H.P. State Commission for Women, and it was on the

recommendation, of, the latter, rather for ensuring qua

the afore inquiry, becoming impartially conducted against

the petitioner therein, qua the petitioner therein, became

transferred, upon, a consonance therewith, made D.O.

note. The afore recommendation(s), of, the State

Commission for Women, apparently, appeared to be, the,

paramount or, the, causa-causans, hence working with

.

the authority concerned, in its making an order, of,

transfer, upon the petitioner therein. It was concluded

therein, that the un-inquired into, and, un-verified

complaint, as made, against the petitioner therein, could

not, till its conclusion, become the valid anchor, for, the

making, of, the transfer order, and, hence, it acquired a

deep tinge, of, punitiveness, and, thereupon, it being

amenable, for becoming quashed. It is, from the afore

factual scenario, borne therein, that this Court would

gauge the relevance, of, Annexure R-7, and, also dehors,

its remaining un-verified, whether the competent

authority, could make, an order, of, transfer, upon the

petitioner. The res-controversia, qua the acquisition, of,

any punitive colour, by, the impugned transfer order, or

it being, the, sequel, of, colorable exercising(s), of, the

apposite powers, by the authority concerned, is, amenable

for becoming rested, on the anchor, of, (a) the status, and,

the influencing capacity, of, the officers concerned, to,

during the subjudice complaint, made against him or her,

hence make efficacious interefence(s), therewith or tamper

with the documentary evidence, hence appertaining

therewith, (b) whereupon(s) the holding, of, the impartial

.

inquiry would become forestalled. (b) whether the

subjudice or un-verified complaint, directly appertaining

to the discharge, of, her/his public duties, is, free from

any element, of, moral turpitude, or, free from any

element, or, stench, of, grave mis-conduct, hence

encapsulated in the relevant CCS Rules, (c) the nature, of,

the complaint, inasmuch as, it appertaining to sexual

offences or offences, which are un-related to the afore,

and again, whether without disturbing, the delinquent or

the accused, yet an impartial inquiry or investigation, qua

therewith, being permissible, and, the permissibility and

impermissibility, of, an impartial inquiry, or investigation,

being made into the apposite complaint, rather without

the accused or the delinquent concerned, becoming

disturbed from the station concerned, becoming anchored,

upon, an objective application, of, mind, by the authority

concerned, vis-à-vis, the afore expostulated parameters,

(e) whether the transfer from the station concerned, of, the

accused/delinquent concerned, enjoining him to join, at, a

station, even remoter or more far flung, than the one

wherefrom, he/she became transferred, on the afore

ground, of, an un-verified or subjudice complaint,

.

becoming addressed to the officers concerned, or to the

highest political executive concerned.

11. Necessarily, only upon the afore touchstones or

parameters, becoming objectively, and, with a thorough

application, of, mind, becoming hence applied, would

validly mobilize, the authority concerned, to make an

order, of, transfer, even, vis-à-vis, any un-verified

complaint, or a subjudice complaint, or hence

therethrough(s) theirs purveying, a valid anchor, for, the,

making(s), of, an order, of, transfer.

12. For applying the afore parameters, to the facts at

hand, and, after distinguishing the judgment, pronounced

by this Court, in Rattan Chand's case (supra), to the

facts at hand, this Court responds to the contentions

sworn, on affidavit, by the respondents, wherein

echoing(s) occur, qua earlier, to Annexure R-7, becoming

addressed to the highest political executive, his

committing the misdemeanor, of, insubordination.

Though, the afore ill act became condoned , yet it does,

prima-facie, reflect, upon the petitioner, taking to overlook

certain norms and guidelines, appertaining, to, the

assignments, of, public works, to him. However, though

.

Annexure R-7, is, disclosed on a sworn affidavit, to be

subjudice, or and awaiting verification, thereupon, upon

this Court, bearing in mind, the prima-facie, influencing

capacity, of, the writ petitioner, inasmuch as, his being a

Class-I Officer, and, also his holding the records,

appertaining to the contemplated against him inquiry,

founded upon Annexure R-7, and, whereupon, he would

obviously, de-facilitate, the holding, of, a contemplated

qua therewith, fair inquiry against him, through his,

prima-facie, may be taking, to tamper with the records,

as are, in his custody, (a) thereupon(s), for obviously

forestalling the afore(s), the rendition(s), of, the transfer

order, hence becomes not stained with vice(s), of,

punitivness, nor its makings, is, through colourable

exercising(s), of, apposite powers by the authority

concerned.

13. Furthermore, even upon testing, the, validity, of,

the impugned Annexure, vis-à-vis, the parameter, of, the

writ petitioner, being therethrough(s) becoming

transferred to a harder or a remoter station, than the

station whereat, he is nowat posted, and, whereupon(s),

his transfer, may become construable to be, dehors a

.

subjudice complaint, borne in Annexure R-7, being

processed before the highest executive authority, hence

made colorably, and, hence it acquiring a tinge, of,

punitiveness, and whereupon, it would become quashed

and set aside. However, when uncontrovertedly, the

station, whereto the writ petitioner, is, transferred, is not,

remoter, nor is, more far flung, than the station, whereat

he is nowat posted, thereupon, his transfer, as made

through the impugned transfer order, also, cannot be

construed to be punitive, dehors,an incomplete or un-

verified inquiry, borne in Annexure R-7, being processed,

by the authority concerned.

14. In summa, there is no merit in the writ petition,

and it is accordingly dismissed. However, the

respondents are directed to, forthwith, conclude the

inquiry.

15 Though, the learned counsel for the petitioner

submits that the spouse, of, the latter, is, also serving

under the Government of Himachal Pradesh, and hence,

upon impugned transfer order, becoming validated,

thereupon the writ petitioner would be deprived of, the

company of his spouse. However, the afore can be

.

mitigated, through the respondent also considering the

posting of the spouse, of, the writ petitioner, at Rampur.

Furthermore, even if, the children, of, the writ petitioner,

are, undergoing education at Kinnaur, yet they can still

proceed to complete their education, through theirs taking

online classes, as during the ongoing pandemic, the

imparting(s), of physical teachings to them, at the

school(s)/institution(s) concerned, are, completely

paralyzed. Also, the pending application(s), if any, are also

disposed of.

(Sureshwar Thakur) Judge

(Chander Bhusan Barowalia) Judge 1.1.2021 Kalpana