Amar Chand Vs State of HP (HPHC)

Amar Chand Vs State of HP 22.11.2013 Overruled by SC on 19.01.2015 in State of HP Vs Tara Devi
CWP No. 8267 of 2013 along with CWP Nos. 8521 of 2013, 7872 of 2013, 8519 of 2013, 7709 of 2013, 7738 of 2013, 8531 of 2013, 6384 of 2013, 8113 of 2013, 7783 of 2013, 6290 of 2013, 7864 of 2013, 7817 of 2013, 7513 of 2013, 6378 of 2013, 6670 of 2013, 8408 of 2013, 8484 of 2013, 8486 of 2013, 7176 of 2013, 7435 of 2013, 6145 of 2013, 7306 of 2013, 8180 of 2013, 7866 of 2013, 7006 of 2013, 7007 of 2013, 7415 of 2013, 7240 of 2013, 7453 of 2013, 7855 of 2013, 7858 of 2013
Judgment Reserved on 29th October, 2013 Date of Decision 22nd November, 2013

Coram The Hon'ble Mr. Justice Dev Darshan Sud, J. The Hon'ble Mr. Justice Dharam Chand Chaudhary, J.

Transfer of employees - clause 17 of transfer policy quashed

CWP No. 8267 of 2013 
For the Petitioner: Mr. Naresh Verma, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate Nos. 1 to 4: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy Advocate General. 
CWP No. 8521 of 2013 
For the Petitioner: Mr. C.N. Singh, Advocate with  Mr. Devender Sharma and Ms.Monika Bansal, Advocates. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General.   
CWP No. 7872 of 2013 
For the Petitioner: Ms. Sunita Sharma, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1and 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8519 of 2013 
For the Petitioner: Mr. Anil Jaswal, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.4: Ms. Sunita Sharma, Advocate. 
CWP No. 7709 of 2013 
For the Petitioner: Mr. Onkar Jairath, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.3: Mr. Anand Sharma, Advocate. 
CWP No. 7738 of 2013 
For the Petitioner: Mr. Narender Singh Thakur, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.4: Mr. K.B. Khajuria, Advocate. 
CWP No. 8531 of 2013 
For the Petitioner: Mr. R.R. Rahi, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.4: Ms. Sunita Sharma, Adovcate. 
CWP No. 6384 of 2013 
For the Petitioner: Mr. Sanjeev Bhushan, Advocate. 
For the Respondents: Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8113 of 2013 
For the Petitioner: Mr. Vikas Rathore, Advocate. 
For the Respondents: Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7783 of 2013 
For the Petitioner: Mr. J.L. Bhardwaj, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 6290 of 2013 
For the Petitioner: Mr. Onkar Jairath, Advocate. 
For the Respondents: Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7864 of 2013 
For the Petitioner: Ms. Archana Dutt, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7817 of 2013 
For the Petitioner: Mr. SC. Sharma, Advocate. 
For the Respondents Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7513 of 2013 
For the Petitioner: Ms. Shubh Mahajan, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3 and 5: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 6378 of 2013 
For the Petitioner: Mr. S.D. Gill, Advocate. 
For the Respondents: Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 6670 of 2013 
For the Petitioner: Mr. Dalip Sharma, Sr. Advocate  with Mr. Umesh Kanwar, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8408 of 2013 
For the Petitioner: Mr. S.S. Panta, Advocate. 
For the Respondents: Mr. Sharwan Dogra, Advocate   General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8484 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8486 of 2013 
For the Petitioner: Mr. Pushpender Verma, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7176 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7435 of 2013 
For the Petitioner: Mr. Vikas Rathore, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 6145 of 2013 
For the Petitioner: Mr. Yudhvir Singh Thakur, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7306 of 2013 
For the Petitioner: Mr. Raj Negi, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 8180 of 2013 
For the Petitioner: Mr. Umesh Kanwar, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7866 of 2013 
For the Petitioner: Mr. Lalit Sharma, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 4: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.5: Mr. Varun Rana, Advocate. 
CWP No. 7006 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7007 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7415 of 2013 
For the Petitioner: Mr. Ajay Sharma, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7240 of 2013 
For the Petitioner: Mr. Sanjeev Bhushan, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7453 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 to 3: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
For Respondent No.4: Mr. Devender K. Sharma, Advocate. 
CWP No. 7855 of 2013 
For the Petitioner: Mr. K.B. Khajuria, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 and 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General. 
CWP No. 7858 of 2013 
For the Petitioner: Mr. Hamender Chandel, Advocate. 
For Respondent Mr. Sharwan Dogra, Advocate  Nos. 1 & 2: General, with Mr. VS Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy  Advocate General.   

Dev Darshan Sud, J.   

All these writ petitions are being disposed of by this common judgment as the petitioner(s) have challenged their transfer(s) which have been effected on the basis of D.O./U.O. notes. It is the allegation of the petitioner(s) that these notes have been obtained by political intervention and the transfers as such are against law.

2. It is submitted by learned Advocate General that despite two judgments of this Court in CWP No. 801 of 2013-A, titled Sanjay Kumar vs. State of HP and others and CWP No. 5351 of 2012, titled Amir Chand vs. State of HP which have been affirmed by the Supreme Court, it is still open to the State to act on the representation of public representatives at all levels as per Clause 17 of the Transfer Policy as such the Supreme Court permits transfer according to this Clause.

3. Before adverting to the submissions made, we note that CWP No. 5351 of 2012, titled Amir Chand vs. State of HP along with other connected petitions were disposed by the Division Bench of this Court on 9th January, 2013 with the directions to the State Government to amend the transfer policy to bring it in concord with the law as pronounced therein. Thereafter, CWP No. 801 of 2013-A titled Sanjay Kumar vs. State of HP and others along with companion matters was decided by another Division Bench presided over by Hon'ble the Chief Justice on 5th July, 2013 following and reiterating the decision in Amir Chand's case (supra). In the interregnum, the present petitions were filed.

4. The decision passed in Sanjay Kumar's case and companion matters was challenged before the Hon'ble Supreme Court, which rejected the petition directing:-

"Heard learned counsel for the petitioners. We do not see any cogent reason to interfere with the impugned judgment and order in these petitions. The special leave petitions are dismissed. However, we clarify that the State is entitled to make the transfer as per the transfer policy adopted by the State for the particular time and particular Department……"

5. It would thus be apparent and evident that the decisions in both Sanjay Kumar and Amir Chand's cases have attained finality. What is urged before us is that policy of the State Government notified on 10th July, 2013 was not the subject matter for decision before the Hon'ble Supreme Court and in this eventuality, order passed in the Special Leave Petition supra does not pronounce on its legality leaving it open to the State to transfer its employees in terms of the policy issued vide office Memorandum No. PER(AP-B)E(3)-17/2012, dated 10th July, 2013.

6. What was urged before us by learned Advocate General emphatically is that it is open to the State to act on the representation of public representatives at all levels. In particular, he has referred to Clause 17 of the Policy which states that on request from public representatives at all levels, on administrative exigencies and in the public interest, transfer shall be considered by the competent authority.

7. We are unable to accept this contention. What we find is that the State now seeks to nullify the decisions of this Court which have been upheld by the Supreme Court. In Amir Chand's case this Court had considered in exten so the grounds on which transfer can be effected in accordance with law. The Court had also considered in detail the law applicable. It inter alia followed the decisions of the Supreme Court in Tarlochan Dev Sharma vs. State of Punjab and others (2001)6 SCC 260, Sarvesh Kumar Awasthi vs. U.P. Jal Nigam and others (2003)11 SCC 740, Suresh Chandra Sharma v. Chairman, U.P. SEB and others (2005)3 SCC 153 to hold that transfer has to be effected on the basis of certain set norms and not arbitrarily without application of mind.

8. Subsequently, in Sanjay Kumar's case these very principles have been re-affirmed. We note that in Amir Chand's case, inter alia four specific directions had been issued namely:-

"….4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representatives do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred.

5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to shows their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.

6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertain. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments.

7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers."

9. We fail to see how Clause 17 of the policy, as noticed by us supra, can be construed to be in consonance with law as considered in two judgments Sanjay Kumar and Amir Chand's cases. We cannot accept the submission of the State that the Hon'ble Supreme Court by its order in the Special Leave Petition (supra) has approved the new policy notified on 10th July, 2013. The Supreme Court's order cannot be read to verify or modify the two judgments supra. This submission, to the contrary, cannot be accepted. It is trite that no policy/regulation can be framed by the State which is not in consonance with law and with the law laid down by the Court. We therefore dispose of all these writ petitions with the following directions:

(a) Clause 17 of the Transfer Policy is quashed and set aside and all transfers effected on the basis of D.O./U.O. notes are quashed and set aside and are not permitted now or in future;

(b) If the petitioners in all these petitions or other employees, as also the private respondents have served at one particular place of posting beyond the normal tenure, it will be open to the respondent-State to transfer them in accordance with law;

(c) The provisions of the Transfer Policy shall be in consonance with the directions issued by this Court in Amir Chand's case (supra). Any provision, which does not comply with the directions, will not be implemented.

10. We note that despite the law pronounced by this Court on the principles as laid down by the Hon'ble Supreme Court in various judgments, transfers are being effected contrary to those principles. The docket of this Court has become choked with petitions challenging such transfers, which not only affects the calendar of the Court but also has deleterious effect on the education system as most of the petitioners are teachers, which is not to say that employees of the other departments are not approaching this Court for cancellation of transfers on D.O./U.O. notes.

11. All writ petitions stand disposed of including all pending miscellaneous application(s), if any.