State of HP Vs Tara Devi

State of HP Vs Tara Devi 19.01.2015

Special Leave to Appeal (C)......CC No(s). 21772/2014 (Arising out of impugned final judgment and order dated 22/11/2013 in CWP No. 6145/2013 passed by the High Court Of Himachal Pradesh At Shimla) (with appln. (s) for c/delay in filing SLP and office report) Date : 19/01/2015

CORAM : HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE S.A. BOBDE

 

https://main.sci.gov.in/jonew/courtnic/rop/2014/38334/rop_208793.pdf 

main.sci.gov.in/jonew/bosir/orderpdf/2145249.pdf

For Petitioner(s) Mr. PP Rao, Sr. Adv. Mr. Suryanarayana Singh, AAG Ms. Pragati Neekhra, Adv.

For Respondent(s)

 

UPON hearing the counsel the Court made the following

 

ORDER

 

Delay condoned. Learned senior counsel for the petitioners vehemently contends, that the High Court erred in striking down Clause 17 of the transfer policy. Clause 17 of the transfer policy referred to in the impugned order of the High Court, is extracted hereunder.

 

"17. On request from public representatives at all Reason: levels, on administrative exigencies and in the public interest, transfer shall be consdiered by the competent authority."

 

2 Learned senior counsel for the petitioners further contends, that the aforesaid paragraph of the transfer policy was struck down in view of the observations recorded by the High court in CWP NO. 801 of 2013-A, titled Sanjay Kumar vs. State of HP and Others as well as in CWP No. 5351 of 2012, titled Amir Chand vs. State of HP Relevant extracts referred to by the High Court from Amir Chand's case is being reproduced hereunder:

 

".....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 show 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 case. 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."

 

It is the contention of the learned senior counsel for the petitioners, that a perusal of Clause 17 clearly reveals, that the norms depicted in Amir Chand's case (in paragraphs 4 to 7) were duly incorporated in Clause 17 of the transfer policy. We agree with the submission advanced by learned senior counsel for the petitioners, and therefore, hereby set aside the direction of the High Court in quashing Clause 17 of the transfer policy. It is, however, directed that Clause 17 of the transfer policy should for all intents and purposes be read as was expressed in paragraphs 4 to 7 of the judgment rendered in Amir Chand's case supra. With the aforesaid observations, the instant petition is disposed of.