Himachal Pradesh High Court

Date Of Decision: 30.05.2025 vs State Of H.P. And Others on 30 May, 2025

Author: Sandeep Sharma

Bench: Sandeep Sharma

2025:HHC:16876



        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                       CWP No.8359 of 2024
                                Date of Decision: 30.05.2025
_______________________________________________________
Sunder Kumar                                 .......Petitioner
                         Versus
State of H.P. and Others                    ....Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner:               Mr. Vikrant Chandel, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
                     B.C. Verma, Additional Advocates General,
                     with Mr. Ravi Chauhan, Deputy Advocate
                     General, for State.
_______________________________________ _____________
Sandeep Sharma, Judge (oral):

Petitioner herein, who is JBT, is aggrieved of order dated

09.08.2024 (Annexure P-2), whereby he has been transferred from

GPS Ghaini Dhar, Education Block Seraj-I to GPS Dhobadhar,

Education Block Seraj-I, against vacant post, in condonation of short

stay.

2. Precisely, the grouse of the petitioner, as has been

highlighted in the petition and further canvassed by Mr. Vikrant

Chandel, learned counsel representing the petitioner is that impugned

transfer order is in violation of the Transfer Policy, formulated by the

Government of Himachal Pradesh, because petitioner has not

completed normal tenure of posting at present station. While making

this Court peruse pleadings adduced on record, which are duly

Whether the reporters of the local papers may be allowed to see the judgment?

2025:HHC:16876 -2-

supported by way of an affidavit, Mr. Vikrant Chandel, learned counsel

representing the petitioner states that prior to petitioner's transfer to

GPS Ghaini Dhar, Education Block Seraj-I, he was posted at GPS

Bagachanogi, Education Block, Seraj-I, which is at a distance of 81

kilometers from GPS Ghaini Dhar, Education Block Seraj-I. He further

states that prior to issuance of impugned transfer order, petitioner has

already remained posted in sub-cadre area twice, i.e. GPS

Bagachanogi, Education Block, Seraj-I and GPS Damno, Education

Block Seraj-I, but yet again, he is being transferred to GPS

Dhobadhar, Education Block Seraj-I, which is again a sub-cadre area.

While referring to the Transfer Policy, formulated by the Government

of Himachal Pradesh, Mr. Chandel states that in terms of afore Policy,

an employee cannot be transferred to another station without his/her

having completed normal tenure of posting at one station. He further

states that employee transferred from a sub-cadre area, cannot be

again transferred to another sub-cadre area, rather, in terms of Policy,

he is required to be given station of his choice.

3. While referring to the reply filed by the respondents, Mr.

Chandel, learned counsel representing the petitioner states that

specific plea raised by the petitioner with regard to his posting in sub-

cadre area on two occasions has been not denied. He further

submitted that transfer of the petitioner from the present place of 2025:HHC:16876 -3-

posting has been effected on the basis of some D.O. note issued by

an extra-constitutional authority and as such, it is not sustainable. He

submitted that since factum with regard to issuance of D.O. note, has

been not specifically denied by the respondents in their reply, that

stands duly established on record and as such, in light of judgment

passed by Division Bench of this Court in CWP No.2862 of 2021,

titled Vipender Kalta Vs. State of H.P. and Others, decided on

20.07.2021, impugned transfer order deserves to be quashed and

set-aside.

4. To the contrary, Mr. Rajan Kahol, learned Additional

Advocate General while supporting the impugned transfer order,

vehemently argued that though petitioner has not completed normal

tenure of posting at present station, but since it is not in dispute that

he remained posted in the vicinity of afore station for quite long, no

illegality can be said to have been committed by the respondents

while passing impugned transfer order. While seriously refuting

allegation of the petitioner that his transfer has been effected on the

basis of some D.O. note issued by an extra-constitutional authority,

Mr. Kahol argued that perusal of record nowhere suggests that

impugned transfer order has been issued on the basis of some D.O.

note, rather, same has been issued with the approval of the

competent authority, that too, on the proposal made by the 2025:HHC:16876 -4-

Directorate. While referring to the Transfer Policy, formulated by the

Government of Himachal Pradesh, Mr. Kahol states that afore Policy

does not bar an employer to post an employee twice in hard/sub-

cadre area, rather in administrative exigency, an employee can be

again sent to hard/tribal area for two-three tenures. While referring to

the reply filed by the respondents, Mr. Kahol states that since at

present there is no teacher at GPS Dhobadhar, Education Block

Seraj-I and on account of non-availability of teachers, studies of

students are suffering, petitioner has been sent to aforesaid school.

5. While controverting the aforesaid submission of learned

Additional Advocate General, Mr. Vikrant Chandel, learned counsel

representing the petitioner, on instructions, states that now one Mr.

Tek Chand, JBT, has already joined at GPS Dhobadhar, Education

Block Seraj-I, and as such, it cannot be said that on account of non-

availability of teacher, studies of nine students, who are studying in

afore school, are suffering.

6. Having heard learned counsel representing the parties

and perused material available on record, this Court finds that

petitioner was transferred to GPS Ghaini Dhar, Education Block Seraj-

I, on 18.05.2023, meaning thereby, he has not completed normal

tenure of posting at present station. Though, it came to be vehemently

argued at the behest of respondents-State that prior to issuance of 2025:HHC:16876 -5-

impugned transfer order, petitioner remained posted in the vicinity of

GPS Ghaini Dhar, Education Block Seraj-I, but such submission

deserves outright rejection, being totally contrary to record.

7. As per pleadings adduced on record, especially reply filed

by the respondents, petitioner, prior to his posting at GPS Ghaini

Dhar, Education Block Seraj-I, was posted at GPS, Bagachanogi,

Education Block Seraj-I, which is at a distance of 81 kilometers from

the present place of posting, if it is so, it cannot be said that petitioner

remained posted in the vicinity of present place of posting for more

than three years. Once Transfer Policy itself provides for a minimum

tenure of three years at one station, coupled with the fact that there is

no administrative exigency to transfer the petitioner from the present

place of posting, impugned transfer order, being passed in violation of

Transfer Policy, deserves to be quashed and set-aside.

8. Factum with regard to issuance of D.O. note by some

extra-constitutional authority has not been specifically refuted by the

respondents/State in its reply, rather, on account of evasive reply,

plea of petitioner with regard to issuance of D.O. note deserves to be

accepted. Though pursuant to the order passed by this Court, record

with regard to transfer of the petitioner has been made available, but

there is no mention of D.O. note in the same. Though perusal of

impugned transfer order nowhere indicates that transfer of the 2025:HHC:16876 -6-

petitioner has been effected on the basis of some D.O. note, but once

factum with regard to issuance of D.O. note has not been specifically

denied, allegation of the petitioner with regard to issuance of D.O.

note deserves to be admitted. Division Bench of this Court in

Vipender Kalta (supra), has held as under:

"32. The Hon'ble Supreme Court as also this Court and various other High Courts have held in certain cases that it would be permissible for the administrative authority to consider recommendations of the MLAs or MPs or Ministers concerned, that too, in case they have received complaints regarding the working of the government servants seeking their transfer, however even then the final decision in this regard has to be taken by the administrative department as the politician cannot don the rule of administration.

33. Even otherwise, upholding such kind of transfers would mean compromising with the rule of law, which is a basic feature of the Constitution, which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure.

34. Rule of law contemplates governance of laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being.

35. Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who 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 and is accordingly quashed."

9. Leaving everything aside, this Court having taken note of

the fact that petitioner has not completed normal tenure of posting at

present station, coupled with the fact that prior to issuance of

impugned transfer order, he has already served in sub-cadre area on 2025:HHC:16876 -7-

two occasions i.e. GPS Bagachanogi, Education Block, Seraj-I and

GPS Damno, Education Block Seraj-I, he otherwise could not have

been again transferred to sub-cadre area i.e. GPS Dhobadhar,

Education Block Seraj-I, rather, in terms of Transfer Policy, formulated

by the Government of Himachal Pradesh, he ought to have been

given station of his choice.

10. Consequently, in view of detailed discussion made

hereinabove, present petition is allowed and impugned transfer order