Harish Kumar vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 9 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                            CWP No. 4993 of 2020
                                           Decided on: 1st January, 2021




                                                                            .
    ________________________________________________________





    Harish Kumar                              ....Petitioner

                                      Versus





    State of Himachal Pradesh and others
                                            ...Respondents
    ________________________________________________________
    Coram




    1 Whether

              approved for reporting? No.

    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.

    ________________________________________________________
    For the petitioner:     Mr.    Devender    K.   Sharma,
                            Advocate.


    For the respondents:                  Mr.   Ashok     Sharma,    Advocate
                                          General, with Mr. Vinod Thakur, Mr.
                                          Vikas Rathor Additional Advocates
                                          General, Ms. Seema Sharma, Mr.




                                          Bhupinder Thakur and Mr. Yudhvir
                                          Singh Thakur, Deputy Advocates





                                          General, for respondents No. 1 & 2.

                                          Mr. Vishwa Bhushan, Advocate, for





                                          respondent No.3.
                                          Through Video Conferencing

    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the order of transfer, petitioner

has filed the instant petition for grant of following 1 Whether reporters of Local Papers may be allowed to see the judgment?

substantive relief:-

"i) That the impugned transfer order dated 28.10.2020 may

.

kindly be quashed and set aside and the petitioner may

kindly be allowed to continue at the present place of posting in the interest of justice and fair play or in alternative the respondent may kindly be directed to adjust the petitioner at nearby places in his home town

district in the interest of justice and fair play.

2. It is not in dispute that the petitioner has been

transferred on the basis of a D.O. note, therefore,

transfer order is liable to be set aside on this ground

alone, in view of the judgment rendered by this Court in

CWP No. 801 of 2013, titled Sanjay Kumar versus

State of H.P and ors. and the connected matters,

decided on 5.07.2013.

3. However, at this stage, learned counsel for

respondent No.3 would argue that since the petitioner

has completed his normal tenure of service at the given

station, therefore, the mere fact that transfer of the

petitioner has been preempted or prompted by D.O. note

would not furnish him a cause of action to assail the

order of transfer. In support of his submissions, strong

reliance is placed on a judgment rendered by this Court

in CWP No. 2026 of 2019, titled Kirpa Ram Vs State

of H.P. and ors., decided on 21.11.2019, wherein vide

.

para-2, it was observed as under:-

"It is not in dispute that the petitioner has completed

his normal tenure of service at the given station. Therefore, the mere fact that the transfer of the petitioner has been preempted or prompted by D.O note would not furnish a cause of action to the petitioner to challenge the order of transfer when his tenure of

service at the given station has already been completed."

4. Obviously, there can be no quarrel with the

judgment aforesaid, but it needs to be noticed that after

passing of the aforesaid direction, the entire world

including our country and the State are facing COVID-19

pandemic. It is on account of this pandemic that the

State Government itself has imposed a complete ban on

general transfers vide order dated 23rd July, 2020 and

thereafter vide notification dated 19th November, 2020.

5. Now, the transfers can be made only:-

(i) to fill up vacant posts in tribal/difficult/hard areas;

(ii) to fill up vacancies arising out of retirements, promotions and creation of new posts;

(iii) transfers necessitated on account of

disciplinary matters, vigilance cases, criminal proceedings etc.;

(iv) in cases involving administrative grounds and

.

exigencies.

6. The case of the petitioner does not fall under

any one of the eventualities as contemplated above and,

therefore, the order of transfer cannot be sustained and

is liable to be set aside.

7.

Learned counsel for respondent No.3 would,

however, contend that it is only on account of compelling

circumstances that respondent No.3 was compelled to

seek transfer. Even this contention is without any merit

because in case respondent No.3 was facing certain

personal difficulties, then she ought to have approached

her employer, rather than procuring D.O. note, who

thereafter was required to consider and decide such

representation.

8. As regards, the personal hardship of

respondent No.3, it is more than settled that the Courts

are extremely slow to interfere directly in personal

hardship cases, the clear implication of the almost

consistent directions given in the cases that the

transferee could make a representation to the competent

.

authority.

9. Reference in this regard can conveniently be

made to the judgment of the Hon'ble Supreme Court in

Rajendra Roy vs. Union of India and Another (1993)

1 SCC 148, wherein it was observed as under:-

7. ......The appellant has not made by representation about personal hardship to the

department. As such there was no occasion for

the department to consider such representation. This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned

department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonable expected that if

such representation is made, the same should be considered by the department as

expeditiously as practicable.

10. Consequently, the present petition is allowed

and the impugned office order dated 28.10.2020

(Annexure P/1) is quashed and set aside. However,

respondent No.3 is also permitted to make a

representation and in case the same is made within two

weeks from today, respondents No.1 and 2 shall consider

and decide the same within a period of four weeks

thereafter. Pending application(s), if any, also stands

.

disposed of.

(Tarlok Singh Chauhan) Judge

(Jyotsna Rewal Dua) Judge January 01,2021 (Gaurav)