Himachal Pradesh High Court
Amit Kumar vs Unknown on 8 October, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 6196/2021
BETWEEN:
1. AMIT KUMAR,
S/O LATE SH. DAULAT RAM,
AGED ABOUT 42 YEARS,
RESIDENT OF VILLAGE KHANER,
POST OFFICE HALNIDHAR,
TEHSIL KUMARSAIN, DISTRICT SHIMLA,
HIMACHAL PRADESH.
2. HIRA LAL VERMA,
S/O LATE SH. BHAG CHAND,
RESIDENT OF VILLAGE BATHONE,
POST OFFICE SERI BANGLOW,
TEHSIL KARSOG, DISTRICT MANDI,
HIMACHAL PRADESH.
3. ASHOK KUMAR BHARDWAJ,
S/O SH. SITA RAM BHARDWAJ,
RESIDENT OF VILLAGE JANOG,
POST OFFICE & TEHSIL
THEOG, DISTRICT SHIMLA,
HIMACHAL PRADESH. ....PETITIONERS
(BY SH. SURENDER SHARMA, ADVOCATE)
AND
1. HIMACHAL PRADESH STATE ELECTRICITY
BOARD LIMITED THROUGH ITS
EXECUTIVE DIRECTOR (PERSONNEL),
VIDYUT BHAWAN,
SHIMLA-171004.
2. SH. HIRANAND VERMA,
ASSISTANT ACCOUNTS OFFICER,
FINANCE & ACCOUNTS WING,
HPSEB LIMITED, SHIMLA-4,
(PRESIDENT, HIMACHAL PRADESH STATE
ELECTRICITY BOARD LIMITED
MINISTERIAL SERVICES ASSOCIATION).
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3. SH. KESHWA NAND SHARMA,
O/O CHIEF ENGINEER SYSTEM
PLANNING HPSEBL, SHIMLA-4,
(GENERAL SECRETARY, HIMACHAL PRADESH
STATE ELECTRICITY BOARD LIMITED
MINISTERIAL SERVICES ASSOCIATION).
.
....RESPONDENTS
(SH. TARA SINGH CHAUHAN, ADVOCATE, FOR R-1)
(SH. R.S. GAUTAM, ADVOCATE, FOR R-2)
(SH. J.L. BHARDWAJ, ADVOCATE, FOR R-3)
RESERVED ON: 6.10.2021
___________________________________________________________________
This petition coming on for admission before notice this
day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
The instant petition has been filed for the grant of
following substantive reliefs:
(i) that the impugned Annexures P-1 to P-3, P-5 and P-6
may kindly be quashed and set aside.
(ii) that respondent No.1 may kindly be directed not to
transfer and post the petitioners on the basis of
impugned Annexures P-1 to P-3, P-5 and P-6.
(iii) that the respondent No.1 may kindly be directed to
initiate appropriate proceedings against respondents
No. 2 and 3 for interfering with the working of the
respondent-Board by making requests/proposals to
transfer the petitioners and other employees.
(iv) that the respondent No.1 may kindly be directed to
produce the record and place on record the
particulars with regard to the postings and transfers
of respondents No. 2 and 3 from the date(s) of their
initial appointments till date and thereafter keeping
in view their longer stay at Shimla, the respondent
No.1 may kindly be directed to post respondents No.
2 and 3 out of Shimla.
2 Learned counsel for the respondent-Board as well as
.
private respondents would argue that the instant petition is
premature and, therefore, not maintainable inasmuch as the
petitioners have not actually been transferred and only having
been recommended to be transferred, they cannot prevent or pre-
empt particular course by filing this petition.
3 During the course of the hearing, both the parties
produced voluminous documents, which only go to indicate that
currently it is respondents No. 2 and 3, who happen to be office
bearers of Himachal Pradesh State Electricity Board Limited
Ministerial Services Association and earlier, it was the
petitioners. The impugned Annexures P-1 to P-3, P-5 and P-6, are
communications issued by respondents No. 2 and 3 for
recommending the transfer of the petitioners.
4 We have heard learned counsel for the parties and
have also gone through the records of the case carefully.
5 We are appalled by the gross indiscipline existing in
the respondent-Board where the members of the different
Employees' Associations or Unions have been addressing
communications directly to the Hon'ble Chief Minister being
oblivious or intentionally ignoring the Conduct Rules. This
practice requires to be discontinued forthwith.
6 What is more distressing is that these Employees'
Associations or Unions are acting as extra constitutional
authorities and are making recommendations for non-consensual
.
transfers, especially of their opponents.
7 This Court, while dealing with an identical case being
CWP No. 4851/2021, titled as Sushil Kumar vs. State of H.P.
& ors. decided on 9.9. 2021, observed as under:
5. It is rather very unfortunate that cases are coming up
repeatedly before this Court, in which the impugned
transfer orders or transfer cancellation orders unabashedly
and brazenly state that the transfer order or transfer
cancellation is being done by or at the instance of persons,
who have no role, position or authority in the administration
of the department.
6. For better administration, the employees/officers must
be shielded from fear of being harassed by the repeated
transfers or transfers ordered at the instance of someone,
who has nothing to do with the business of administration.
7. This court has repeatedly held that the transfer of
officials/officers is required to be effected on the basis of
set norms and guidelines; and this power cannot be
wielded arbitrarily, mala fide or an exercise against
efficient and independent officer or at the instance of
politicians, who has no concern with the working of the
department.
8. The result of such political interference in the matter of
transfers and postings of government servants is that the
government servants get demoralized and they become
affiliated to some political party or politician, which is
wholly destructive to all norms of administration.
9. The citizens have a fundamental right to good
governance, which is possible only if government servants
including the employees of the Board/Corporation, who are
governed and controlled by the State Government, are
politically neutral and are not transferred or otherwise
victimized at the instance of a political party or politician.
10. To say the least the Association has made a mockery
.
and has used its strength as a tool to transfer the
employees.
11. The Government as an ideal employer has a bounden
duty to strictly safeguard the interest of its employees
against the machinations of such organization so that the
public servants can discharge their functions without fear
or favour and they need not to toe the line drawn by the
association. If such transfer is allowed to take effect, it
would embolden other association(s) to seek the transfer of
unfavourable and upright government officials from their
pocket boroughs and to see that they are posted
somewhere else.
12. This would demoralize the government servants and
may even inspire them to amend their ways in such a
manner so as to please each and every one whoever come
under the banner of the Association. If the government
machinery has to serve the people well, their functioning
and official routines are to be insulated against the
extraneous influences.
13. Even otherwise, upholding such kind of transfers
would mean compromising with the rule of law, which is a
basic feature of the Constitution, that permeates the whole
of the constitutional fabric and is an integral part of the
constitutional structure. Rule of law contemplates
governance by laws and not by humour.
14. That apart, the transfer cannot be used as a medium
to scuttle or choke the voice of dissent, especially, the
voice of dissent cannot be silenced through administrative
arbitrariness.
15. The employees' association primarily constituted to
highlight the grievances of the employees can no doubt
request the competent authority for transfer of employees of
the Association highlighting the grievances of the
employees, but in no case can recommend for the transfer
.
of the employees that too to a particular station, which is
solely the job of the administrative department.
16. In addition thereto, under no conditions or
circumstances can these associations, unions etc., as the
case may be, recommend for a non-consensual transfer
merely because the association may comprise of sizable
number of employees. These Associations cannot indulge in
hand twisting tactics and try to exert pressure on the
administrative authority to effect a non-consensual transfer.
17.
Likewise, these associations cannot impress upon the
administrative authorities to promote a particular employee,
as that again is only within the exclusive domain and
domain of the administrative department. In case an
individual employee is aggrieved by his non promotion, then
it is always open to him to approach the administrative
department and in case, the administrative department
does not accede to his request, the door of justice are
always open to such employee. The association cannot
usurp the power of administrative department.
18. Therefore, we direct that henceforth no
recommendations for non consensual transfer shall be
made by the Himachal Pradesh Sikshak Mahasangh
(Association), much less, accepted by the competent
authority. It is made clear that when such
recommendations come to the notice of this Court, then the
Himachal Pradesh Sikshak Mahasangh shall be
disqualified for all intent and purposes.
19. Since the recommendations to transfer the petitioner
had been mooted by an extra constitutional authority,
which 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.
8 In compliance to the directions contained in aforesaid
.
case, the Chief Secretary to the Government of Himachal
Pradesh, has issued instructions, which read as under: -
"Your attention is invited to the Hon'ble High Court orders
dated 20.7.2021 titled as Vipender Kalta vs. State of H.P. &
others and further orders dated 9.9.2021 of Hon'ble High
Court passed in CWP No.4851/2021, titled as Sushil Kumar
vs. State of H.P. & others. In both the cases the Hon'ble
High Court has expressed serious concern over
recommendation related to service matters of employees
including transfer, promotion etc., by extra constitutional
authorities which have no role in the functioning and
business of the administration. All the Secretaries/HODs
must ensure that such recommendation, if received, should
not be taken on their face value and must be put up to
competent authorities purely on merit and dealt strictly on
administrative grounds."
9 Even instructions, in compliance to the aforesaid
judgment, also stand issued by the Director (Higher Education).
10. However, it appears that the judgment rendered in
Sushil Kumar's case supra has not had its effect on the
Employee's Associations or Unions, as they in the blatant and
brazen manner continue to make recommendations for non-
consensual transfers, as is evident from the facts of the instant
case.
11 If any individual employee or officer or office bearer of
any Union or Association, recognized or unrecognized, indulge in
any coercive or intimidating or indisciplined acts or behavior, the
.
employer is always at liberty to take such action, as permissible in
law.
12 Therefore, we make it absolutely clear that henceforth
the Boards, Corporation or any other institutions, falling under the
definition of the 'State' under article 12 and 226 of the Constitution
of India, shall not entertain much less consider and decide
recommendations made by any of the Employees' Associations or
Unions for non-consensual transfers of its employees in the State
of Himachal Pradesh and any Employees' Associations or Unions in
the State of Himachal Pradesh resorting to such practice shall, in
addition to any other action, be liable to be de-recognized and
disqualified for all intents and purposes.
13. A copy of this order be sent by the Registry of this Court
to the Chief Secretary to the Government of Himachal Pradesh for
onward circulation to all the Departments of the Government, all
Boards, Corporations etc.
14 As regards the instant petition, the same being
premature at this stage is accordingly dismissed so also the pending
application(s), if any. For compliance, list on 22.10.2021.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
8.10.2021 Judge
(pankaj)
