Himachal Pradesh High Court
Vandana Sharma vs State Of Himachal Pradesh & Others on 16 May, 2023
Bench: Vivek Singh Thakur, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.1639 of 2023
.
Date of Decision: May 16, 2023
Vandana Sharma ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Ajit Sharma, Advocate.
For the Respondents: Mr.Anup Rattan, Advocate General, with
Mr.R.P. Singh, Deputy Advocate General,
for respondents No.1 to 3.
Mr.Narender Guleria, Advocate, for
respondent No.4.
Vivek Singh Thakur, J (Oral)
Petitioner has filed present petition assailing her
transfer order vide Notification dated 25.03.2023, whereby she
has been transferred from CDPO, ICDS Project Sadar, Mandi,
District Mandi, H.P. to ICDS Project Dharampur, District Mandi,
H.P., vice respondent No.4 Kundan Hazari.
2. Grievance of the petitioner is that she has been
transferred only on the basis of D.O. Note No.Secy/CM-
1 Whether reporters of the local papers may be allowed to see the judgment?
22117/2022-VIP-C-6348, dated 09.02.2023, but for no
administrative exigency or public interest.
3. Record has been produced which indicates that after
.
receiving approved U.O. Note with respect to transfer, the same
was reproduced on the noting sheet and it was recorded that
both, i.e. petitioner as well as respondent No.4 Kundan Hazri, are
having short stay at their respective places of postings, but with
observation that the same has already been condoned by the
Hon'ble Chief Minister vide U.O. under reference and matter was
submitted forr consideration of concerned authority and
concerned authority, without making any observation, has
proposed transfer order, without any comments, but on the basis
of already approved U.O. Note, and accordingly impugned
transfer order has been passed.
4. Respondent-State has also produced photocopy of
previous record which indicates that in 2013 transfer of
respondent No.4-Kundan Hazri from Tehsil Welfare Office Sadar
to Tehsil Welfare Office Kaylong, was cancelled vide office order
dated 14.08.2013 on the basis of U.O. Note No.Secy/CM-
07034/2012-VIP-C-73926, dated 12.08.2013, issued by the
Hon'ble Chief Minister. Thereafter, in the year 2020 respondent
No.4-Kundan Hazri was again transferred through U.O. Note
dated 27.01.2020 from Tehsil Padhar, District Mandi to Tehsil
Sadar, District Mandi, vide office order dated 12.05.2020.
5. It is evident from the impugned transfer order that
transfer has been ordered on the basis of approved U.O. Note,
but without any other reason.
.
6. For adjudication of present case, reference in this
regard can be made to various pronouncements of this Court,
including Ram Krishan vs. District Education Officer, reported in
ILR HP 1979 HIM 481 : 1979 Shim LC 345; A.K. Vasudeva vs. State
of H.P. and others, reported in ILR (Himachal Series) (1981) 10
HIM 359; 1982 Shim LC 104; CWP No.1105 of 2006, titled as
Sushila Sharma vs. State of H.P. and others; Sant Ram Pant vs.
State of H.P. and others, reported in 2009 (3) Shim. L.C. 206; CWP
No.2844 of 2010, titled as Pratap Singh Chauhan vs. State of H.P.
& others reported in 2010(3) Shim.LC 379, decided on 18.06.2011;
CWP No.3530 of 2011, titled as Babita Thakur vs. State of H.P. and
others reported in 2011(2) Shim.LC 28; Amir Chand vs. State of
Himachal Pradesh, reported in 2013 (2) HLR (DB) 648; Sanjay
Kumar vs. State of H.P. and Ors., reported in Latest HLJ 2013 (HP)
1051; Raj Kumar vs. State of H.P. and Ors., reported in 2015 (1)
Him. L.R. (DB) 567; CWP No.2621 of 2020, titled as Lekh Raj vs.
State of H.P. & Ors., decided on 17.08.2020 : 2020 SCC Online HP
3429; CWP No.511 of 2020, titled as Sheela Suryavanshi vs. Stae
of H.P., decided on 26.8.2020; CWP No.2677 of 2020, titled as
Shugal Singh vs. State of H.P., decided on 24.9.2020; CWP
No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal
Pradesh, decided on 29.9.2020; CWP No.5294 of 2020, titled as
Abdul Hamid vs. State of H.P. and others, decided on 5.1.2021 :
2021 SCC Online HP 48: 2021 Lab IC (NOC 215) 65; CWP No.1387
of 2021, titled as Praveen Kumar vs. State of H.P and others,
decided on 31.3.20221; CWP No.2862 of 2021, titled as Vipender
.
Kalta vs. State of H.P. and others, decided on 20.7.2021; and CWP
No.5721 of 2021, titled as Promila vs. State of H.P. and others,
decided on 8.10.2021.
7. Following observation made by Coordinate Bench of
this High Court in CWP No. 2621 of 2020 titled as Lekh Raj vs. State
of HP reported in 2020 SCC Online HP 3429 is also relevant, which
reads as under:-
"8. ... ... ... then such recommendations are thereafter
got implemented through the Hon'ble Chief Minister,
leaving virtually little or no scope for any discretion or
taking any independent decision for the administrative
department.
9. ..........
10. Before the recommendations could reach the
administrative department, the same were placed
before the Hon'ble Chief Minister, who appended his
note on 03.07.2020 "May be done as proposed". It
appears that all the proposed transfers were approved
as it is, without even consulting the administrative
authority.
10A. It is more than settled that an elected
representative can only propose the transfer of an
employee, that too for genuine and cogent reasons
and not by usurping the authority of the administrative
department, who alone is competent to issue the
orders of transfer after due application of mind.
Obviously, the administrative department in such
circumstances, had no choice whatsoever, but to
implement the recommendations made by the local
MLA as approved aforesaid."
8. In the aforesaid facts and circumstances and in the
.
light of pronouncements of this Court, we have no other option
but to quash the impugned transfer order and the same is
quashed accordingly.
9. However, it is also made clear that quashing of
transfer does not mean that petitioner as well as respondent
No.4 cannot be transferred in any administrative exigencies. The
concerned authority shall be at liberty, if required so, to transfer
them to utilize their services wherever so required in public
interest, in accordance with law.
10. Petition is disposed of in aforesaid terms, so also
pending application(s), if any.
11. Parties are permitted to produce a copy of this order,
downloaded from the web-page of the High Court of Himachal
Pradesh, before the authorities concerned, and the said
authorities shall not insist for production of a certified copy but if
required, may verify it from Website of the High Court.
(Vivek Singh Thakur),
Judge.
(Sushil Kukreja),
Judge.
May 16, 2023
(Purohit)
