Himachal Pradesh High Court
Tulsi Ram vs State Of Himachal Pradesh And Another on 18 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No.10427 of 2023
Decided on: 18th December, 2023
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Tulsi Ram
....Petitioner
Versus
State of Himachal Pradesh and another
......Respondents
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
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1 Whether approved for reporting? Yes
For the petitioner: Mr. Tek Chand, Advocate.
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For the respondents: Mr. Rajan Kahol, Additional Advocate
General.
Ranjan Sharma, Judge (Oral)
Notice. Mr. Rajan Kahol, learned Additional
Advocate General, appears and waives service of notice on
behalf of the respondents.
2. With the consent of the parties, the instant writ
petition is taken up for disposal, at this stage, in view of the
order intended to be passed herein.
3. The petitioner has filed the instant petition with
the following reliefs:-
"(i) That the respondent be directed to decide the
Whether reporters of Local Papers may be allowed to see the judgment?
representation dated 06-07-2023 (Annexure P-
2) within time bound manner and transfer the
petitioner to the station of his choice as per the
transfer policy of State of H.P.
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(ii) That the Respondents be directed to transfer
the petitioner to one of the stations of his
choice as per the transfer policy of State of H.P.
as mentioned supra."
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4. The petitioner was initially posted on contract
basis as an Assistant Professor (History) in Government
Degree College Pangi at Kilar, District Chamba, Himachal
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Pradesh, which is a tribal area and he joined as such on
07.07.2018 [Annexure P-1]. His services were regularized in
March, 2021. Since his initial appointment, the petitioner has
been working as such at the said station, i.e. Government
Degree College Pangi at Kilar, District Chamba and has
completed five years mandatory stay in tribal area.
5. In this regard, the petitioner has submitted a
representation dated 06.07.2023, through proper channel,
which was forwarded by the Principal Government Degree
College Pangi, District Chamba, vide letter of even date,
followed by undated reminder, which was also forwarded,
vide letter dated 07.09.2023 by the said Principal, to
Respondent No.2-Director, Higher Education, Himachal
Pradesh [Annexure P-2 (colly)]. As per Clause 16.5 of the
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existing Transfer Policy, the petitioner has mentioned five
stations of choice, i.e. (i) Government College Chamba; (ii)
Government College Kullu; (iii) Government College,
Dharamshala; (iv) Government College Nagrota Bagwan; and
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(v) Government College, Jawali, in his reminder, as aforesaid.
The said representation/reminder are stated to be pending.
6.
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Learned counsel for the petitioner submits that
petitioner belongs to tribal area of Pangi (Chamba) and he has
completed the mandatory service of five years as per
Clause 16.5, in the tribal area of Pangi (Chamba). Therefore,
the petitioner has a right to be considered for posting from
tribal area to any of the five stations of choice, in terms
of Clauses 12 and 16.1 of the Transfer Policy, but by not
transferring the petitioner to one of the stations of choice, as
mentioned above, the respondents have ignored the
provisions which is alleged to be not in spirit of existing Policy
and the law.
7. Per contra, Mr. Rajan Kahol, learned Additional
Advocate General, submits that the representation/reminder
[Annexure C-2(colly)], shall be looked into/examined, in
accordance with law, in a time bound manner.
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8. Be that as it may, once the State Authorities
have issued the Transfer Policy, mandating certain
concessions, to its employees, in view of Clauses 12 and
16.1 of the Transfer Policy, then, the aforesaid Clauses in
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the Transfer Policy, cannot be permitted to remain only on
papers. In order to give effect to the aforesaid Clauses
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in the Transfer Policy, the respondents are bound to either
call for an option from an employee or to prescribe a time-line
when, such option(s) by way of representation, could be
exercised by an employee, on completion of the normal tenure
of two winters and three summers in such areas [for those
who do not belong to such areas] and on completion of the
normal tenure of five years in such areas [for those who
belong to such areas as in this case]; and then to consider/
examine the aforesaid option and to pass appropriate orders,
in terms of Clauses 12 and 16.1 of the Transfer Policy, so that
the benefit of such concession(s) is admissible in a fair,
objective and transparent manner to all concerned, so as
to avoid perversity and discrimination in State action;
by prolonging the stay of an employee and by permitting
those who have never served in such areas to enjoy
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leisure postings, either on political patronage or
extraneous considerations; which smells of arbitrariness
unreasonableness, defeating the object and spirit of Article 14
of the Constitution of India. Admittedly, in instant case, the
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respondents have not called for an option from the petitioner
in terms of Clauses 12 and 16.1 of the Transfer Policy.
9.
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Faced with this situation and in view of the
above facts and circumstances, Mr. Tek Chand, learned
counsel for the petitioner, prays that representation/
reminder [Annexure P-2 (colly)], may be directed to be
examined/considered by the competent authority. The prayer
being innocuous is not opposed by the learned State Counsel
also and accordingly, the same being genuine, is granted.
10. As prayed for, this Court disposes of the instant
writ petition, with the directions to Respondent No.1-
Secretary (Education) to the Government of Himachal
Pradesh, to decide the aforesaid representation/reminder
[Annexure P-2 (colly)], in the light of Clauses 12 and 16.1 of
the Transfer Policy, within two weeks from today,
by a speaking order.
11. This Court hopes and trusts that while deciding
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the representation/reminder, the respondents shall make
every endeavour to give defacto and dejure effect to Clauses
12 and 16.1 of the Transfer Policy, so as to avoid perversity,
arbitrariness and discrimination in State action [as discussed
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in Para-8 (supra); and to ensure that the Transfer Norms are
applied uniformally and equally to all concerned.
12.
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Needless to say that, this Court has not adverted
to the merits of the matter and all questions of facts
and law are left open.
In aforesaid terms, the writ petition as well as
the pending miscellaneous application(s), if any, shall also
stand disposed of, accordingly.
(Ranjan Sharma)
Judge
December 18, 2023
(Bhardwaj)
