Kumar vs "13. Indeed
2022 Latest Caselaw 3970 HP

                      REPORTABLE/NON-REPORTABLE
    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 31st DAY OF MAY, 2022
                          BEFORE




                                                  .

    HON'BLE MRS. JUSTICE SABINA, ACTING CHIEF JUSTICE
                           &
           HON'BLE MR. JUSTICE SATYEN VAIDYA





           CIVIL WRIT PETITION No. 2262 OF 2022

    Between:-
    NAIN KUMAR SON OF LATE SH. MITHLESH





    KUMAR, RESIDENT OF HOUSE NO. 2794/10,
    RANI TAL, NAHAN, DISTRICT SIRMAUR,
    H.P.
                                       ......PETITIONER

    (BY MR. SURINDER SAKLANI, ADVOCATE).

    AND

    1. STATE OF HIMACHAL PRADESH,


       THROUGH SECRETARY(HOME),
       TO THE GOVERNMENT OF
       HIMACHAL PRADESH, SHIMLA-2.




    2. ADG-CUM-COMMANDANT GENERAL,
       HOME GUARDS & CIVIL DEFENCE,





       HIMACHAL PRADESH, SHIMLA-1.

    3. PARMOD KUMAR (SON OF NOT KNOWN





       TO THE PETITIONER), SUPERINTENDENT
       GR-II, HOME GUARDS & CIVIL
       DEFENCE, CTI SARGHEEN,
       DISTRICT SHIMLA, H.P.
                                      ...RESPONDENTS

    (BY SH. ASHWANI SHARMA,
    ADDITIONAL ADVOCATE GENERAL, FOR
    R-1 & R-2.)




                                 ::: Downloaded on - 01/06/2022 20:04:58 :::CIS
                                      -2-



    (MR. NEERAJ SHARMA, ADVOCATE,
    FOR R-3.)




                                                             .
                  This petition coming on for admission after notice





    this day, Hon'ble Mr. Justice Satyen Vaidya, passed the

    following:-





                               ORDER

By way of instant petition, petitioner has prayed

for following reliefs:

"(i). That a writ in the nature of certiorari may

very kindly be issued thereby quashing impugned transfer order dated 08.04.2022 (Annexure P-1).

(ii) That a writ in the nature of mandamus may

very kindly be issued thereby directing the respondents to allow the petitioner to continue

serving as Superintendent Gr-II in Home Guards 4th Battalion Nahan, District Sirmaur,

Himachal Pradesh."

2. The petitioner has assailed his transfer order

dated 08.04.2022 (Annexure P-1), whereby, he has been

transferred from Home Guards 4th Bn. Nahan, District

Sirmaur to Home Guards and Civil Defence, CTI Sargheen,

District Shimla, H.P. on the ground that the said order has

been issued to accommodate respondent No.3 and is on the

basis of D.O. Note No. 383638. It is further contended that

.

the petitioner was promoted as Superintendent Gr-II in May,

2018 and posted at CTI Sargheen, Shimla and remained upto

December, 2019 when he was transferred to the present place

of posting i.e. Home Guards 4th Bn. Nahan, District Sirmaur.

Now, vide order dated 08.04.2022, he has again been

transferred without allowing the petitioner to complete his

normal tenure of posting i.e. three to five years.

3. The stand of the respondents No. 1 and 2 is that

the petitioner on his promotion as Senior Assistant in the

year 2012, was posted at Fire Headquarter, Shimla but was

again transferred back to 4th Home Guards Battalion Nahan

in the year 2013 on his request. The petitioner was thereafter

transferred to Fire Headquarter, Shimla in the year 2016 and

subsequently on his promotion as Superintendent Grade-II,

he was transferred to CTI, Sargheen in the year 2018.

However, the petitioner was again transferred to 4th Home

Guards Battalion, Nahan in the year 2019 on his request

where he is serving till date. Thus, the petitioner has served

at Nahan for 22 years out of his total service of 30 years. It is

further alleged that the petitioner himself has been recipient

of D.O. Note on earlier occasion and hence he is estopped

.

from seeking indulgence of this Court.

4. We have perused the records produced on behalf

of the official respondents. It is revealed that petitioner in

2012 was posted at Fire Headquarter, Shimla and was

transferred back to 4th Home Guards Battalion, Nahan in the

year 2013 on his request. Also, on his promotion as

Superintendent Grade-II in the year 2018, petitioner was

transferred to CTI, Sargheen, Shimla from where in the year

2019 on his request, he was again transferred back to 4th

Home Guards Battalion, Nahan. Thus, the petitioner has

remained posted at Nahan during substantial period of his

service career.

5. It is further revealed from record that petitioner

himself had been recipient of D.O. Note in past. This Court

has repeatedly held that an employee, who himself has been

beneficiary of D.O. Note, cannot challenge the transfer orders

issued on the basis of D.O. Note in favour of some other

person.

6. Reference in this regard can conveniently be made

to the judgment rendered by this Court in CWP No. 1387 of

2021, titled as Parveen Kumar Vs. State of H.P. & Ors.,

.

decided on 31.03.2021, wherein it was observed as under:-

"13. Indeed, transfer is an incidence of

service and government employees are supposed to be transferred and posted anywhere in the State. The transfers of the

petitioner and that of respondent No. 4 are effected after the approval of the competent authority. The petitioner, earlier managed his

posting at GSSS Nabahi, Mandi, and now he

has been transferred from Nabahi, after completion of his normal tenure, so he has no

right to say that transfer of respondent No. 4, effected on the basis of D.O. Note, is illegal and bad in the eyes of law. In fact, transfer

of the petitioner has no tinge of malafides,

neither without public interest nor vitiated, being against the settled Transfer Policy, as

transfer is an incidence of service. Moreover in Sanjeev Sood vs. State of Himachal Pradesh and others, CWP No. 4208 of 2020, decided on 22.12.2020, this Court has held as under:

"9. This Court in CWP No. 4063 of 2019, titled Smt. Anita Rana and Anr.

vs. State of Himachal Pradesh and others, decided on 31.12.2019, has specifically held that a recipient /beneficiary of DO note cannot approach this Court ventilating the

.

grievance that he /she has been

transferred on the basis of DO Note. It would be apposite to refer to the relevant observations made by a Coordinate Bench in order dated

31.12.2019, which reads as under:-

"We have heard this matter for some time and also perused the

record produced by the office of respondent No. 2. It is seen from the record that on the D.O.

Note, the transfer of petitioner No. 1 has been proposed to be r cancelled. Meaning thereby that

she is also recipient of D.O.

Note, hence not justified in ventilating the grievances that she has been transferred on the

basis of D.O. note. Therefore, the writ petition qua her deserves to be dismissed and is accordingly dismissed leaving it

open to her to make a representation either for

cancellation of her transfer or adjustment at some suitable place, if so advised."

10. Since it is apparent that the petitioner, on earlier occasions, got himself posted at stations of choice on the basis of UO Notes, petition praying therein for quashment of impugned order is not maintainable at all. However, having taken note of the fact that both, petitioner and respondent No.3, have been repeatedly exerting political pressure to get themselves posted at stations of their choice, we dispose of this petition by

directing respondents to transfer both, petitioner and respondent No.3, to some other places in the State, especially where both of them have not served till date, within two weeks."

.

7. Thus, the petition filed by the petitioner is not

maintainable. Even otherwise, petitioner has been transferred

from Nahan where he served 22 years, out of his total service

of 30 years and he cannot make any legitimate grievance

against the impugned order of transfer.

8. In the light of the above observations, we do not

find any merit in this petition and the same is dismissed. No

order as to the costs.

9. Pending application(s), if any, shall also stand

disposed of.

                                                     (Sabina)
                                                Acting Chief Justice





    31st May, 2022.                               (Satyen Vaidya)





         (GR)                                           Judge