IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No. 5602 of 2011. Judgement reserved on: 16.8.2011. Date of decision: 23.8.2011. Subhash Chand …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Sanjeev Bhushan, Advocate. For the Respondents : M. Ruma Kaushik, Additional Advocate General, for respondents Nos. 1 & 2. Mr. Jeevesh Sharma, Advocate, for respondent No.3. Kuldip Singh, Judge. The petitioner has prayed for quashing of Annexure P-3 dated 2.6.2011 transferring him from Govt. Senior Secondary School, Chandi, District Solan to Govt. Senior Secondary School, Gondla, District Lahaul & Spiti and Annexure P-4 dated 15.7.2011 vide which respondent No. 3 under order of posting on promotion to Gadda Gosain, District Mandi was given adjustment in Govt. Senior Secondary School, Chandi (S), District Solan vice Parma Nand under order of posting on promotion to Chandi (S), District Solan, who was given adjustment in Govt. Senior Secondary School, Gadda Gosain, District Mandi vice Bali Ram. The petitioner has further prayed writ of Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… mandamus directing the respondents to allow the petitioner to work at Govt. Senior Secondary School, Chandi, District Solan, H.P. 2. The brief facts of the case are that the petitioner after his appointment joined at Govt. High School, Durgapur Dhardi on 26.8.2002 as Physical Education Teacher (PET), a district cadre post. In July 2007, petitioner was promoted to the post of DPE and was posted at Govt. Senior Secondary School, Jejwin, Bilaspur, where he joined on 23.7.2007. On 2.3.2009, the petitioner was transferred to Govt. Senior Secondary School, Chandi, District Solan. He was relieved from Jejwin on 21.5.2009 and thereafter he joined Govt. Senior Secondary School, Chandi, Solan. The petitioner was expecting that he would be allowed to complete his normal tenure of three to five years at Chandi. 3. It has been stated that in the annual function of school on 13.2.2011, some misunderstanding took place between the local M.L.A. and Principal of the school. Thereafter many teachers and other staff members were transferred from the school. In one matter, the High Court has granted stay. The three Laboratory Assistants and Superintendent of the school, who were transferred, were adjusted later on. A Lecturer in Hindi was also transferred, but he also got adjustment. It has been alleged that petitioner has also been transferred without any basis from Chandi to Gondla, District Lahaul & Spiti in June 2011 vide Annexure P-3. The transfer order of the petitioner was not sent to the school nor it was supplied to the petitioner, but it was handed over to the petitioner on 16.7.2011 by respondent No. 3, who came to the school alongwith his own …3… transfer order dated 15.7.2011 Annexure P-4. It has been stated in the petition that till the preparation of the petition on 17.7.2011, the petitioner was not relieved. 4. The petitioner has challenged his transfer order that the same is against the transfer policy dated 8.12.2010 of respondents No. 1, 2, in which it has been provided that no transfer will be made after 30th April. One Parma Nand on promotion was ordered to be posted at Govt. Senior Secondary School, Chandi vide order dated 5.7.2011 or 6.7.2011, but now in place of Parma Nand, respondent No. 3 has been transferred to Chandi. Parma Nand never joined at Chandi. On the contrary, the petitioner was posted at Chandi. The petitioner has not been transferred in public interest nor on account of administrative exigencies, but due to extraneous reasons. The three daughters of the petitioner are studying in Govt. Senior Secondary School, Chandi in 4th, 6th and 8th standard and on account of transfer of the petitioner their study would be badly affected. The old mother 74 years and father 82 years of the petitioner are also living with the petitioner. The petitioner has prayed for quashing of his transfer from Chandi to Gondla. 5. The respondents No. 1 and 2 have contested the petition by filing reply. It has been stated that petitioner has been transferred with the prior approval of the competent authority against vacancy in public interest and keeping in view of exigencies of administration. The students of government Senior School School, Gondla require teacher. The transfer policy is mere guidelines, they do not confer …4… any enforceable rights upon the petitioner. The respondents No. 1 & 2 have prayed for dismissal of the petition. 6. The respondent No. 3 has also filed separate reply. It has been stated that he was relieved from duty at Govt. Middle School, Paplol on 16.7.2011 and he joined at Govt. Senior Secondary School, Chandi on 16.7.2011. The petitioner has been transferred in public interest. The respondents No. 1 and 2 acceded to the request of respondent No. 3 and he has been rightly posted at Govt. Senior Secondary School, Chandi. The respondent No. 3 has prayed for dismissal of the petition. 7. I have heard the learned counsel for the parties. The learned counsel for the petitioner has relied para-6 of the policy for transfer of teachers in Education Department (H.P.), which provides that general transfers shall normally be ordered in the month of April. There will be ban on transfers after 30th April. After 30th April, transfer can be ordered with the prior approval of the Chief Minister in the following circumstances only:- (a) due to promotion, retirement, death, deputation, resignation, suspension, proceeding on long leave of a teacher; (b) due to creation, abolition or shifting of post on rationalization. (c ) on the basis of complaint after verifying facts. (d) due to poor academic performance/ misconduct. (e) from institutions of lower enrolment to institutions of higher student enrolments. 8. Para-7 of the policy provides that it will be ensured by the controlling officer that in the event of a teacher being transferred, …5… the transferred teacher shall join duty only when the person occupying the post is relieved first, only thereafter, the joining of the incumbent shall be accepted. Para -11 of the policy provides relaxation. 9. Para-3 of the policy provides that normal posting period of all categories of teachers will be three academic years; however, this will be subject to continued good performance and administrative requirements. No government employee can claim his transfer or posting as a matter of right. It will be the prerogative of the State Government to post/ transfer any employee anywhere in the State keeping in view the administrative convenience or exigencies of service. 10. The petitioner after relieving from Jejwin on 21.5.2009 joined at Govt. Senior Secondary School, Chandi, Solan. He has been transferred to Govt. Senior Secondary School, Gondla, District Lahaul & Spiti in June 2011 vide Annexure P-3. The petitioner has completed two years one month at Chandi. The petitioner has taken the plea that as per transfer policy dated 8.12.2010 of respondents No. 1 and 2 he was expecting his posting at Chandi for at-least three academic years, but he has been transferred to Gondla after two years in violation of transfer policy, which also provides that after 30th April transfers can be ordered on the circumstances mentioned in para-6 of the transfer policy. The petitioner in the petition has stated that there is no public interest or exigencies of service in transferring him from Chandi to Gondla. …6… 11. The respondents No. 1 and 2 in their reply have stated that petitioner has been transferred to Gondla with prior approval of the competent authority against the vacancy in the public interest and keeping in view the exigencies of administration. The respondents No. 1 and 2 in their reply have not denied the averments in the petition that petitioner has been transferred from Chandi to Gondla on account of misunderstanding between local M.L.A. and Principal of the school, which resulted into series of transfers of the staff posted at Government Senior Secondary School, Chandi. The petitioner has submitted that most of the staff so transferred has been adjusted, but petitioner has been transferred for not fault of his to far flung area in violation of transfer policy. The three daughters of the petitioner are studying in 4th, 6th and 8th classes in government Senior Secondary School, Chandi and their study will be adversely affected on account of mid academic transfer, which is also in violation of transfer policy of respondent No. 1. 12. The transfer policy of respondent No. 1 does not create vested right in favour of employee but it is not a waste paper. It has been framed for adherence and not for violation. The minimum expected from respondents No. 1 and 2 in the reply to explain the circumstances which necessitated the transfer of the petitioner from Chandi to Gondla. The simple use of expression “exigencies of administration” in the reply without placing on record necessary material is not enough to record a finding that in fact transfer of the petitioner from Chandi to Gondla is in exigencies of administration. The respondents No. 1 and 2 have stated that petitioner has been …7… transferred from Chandi to Gondla against a vacancy but on account of what reason and since when the post is lying vacant at Gondla that has not been elaborated in the reply. 13. The manner under which respondents No. 3 has been accommodated at Chandi also supports the case of the petitioner that respondent No. 3 has been favoured at the cost of petitioner. It has not been denied on behalf of the respondent No. 3 that respondent No. 3 joined at Govt. Senior Secondary School, Chandi on 16.7.2011, whereas, the petitioner was relieved on 19.7.2011 from that school. The joining of respondent No. 3 on 16.7.2011 at Chandi when petitioner was not relieved is in violation of para-7 of the transfer policy. The relieving of petitioner from Government Senior Secondary School, Chandi is inconsequential in view of decision in Shobh Ram vs. State of H.P. and another Latest HLJ 2004 (HP) 652, wherein it has been held that if a petitioner convincingly satisfied the Court that the impugned transfer order did suffer patently on account of a defect either in law or otherwise and that based on established constitutional parameters the interference of the court indeed is warranted, merely because the order has been implemented or that the petitioner has been relieved should not in normal circumstances inhibit the court or the Tribunal in undoing the damage, or what in legal parlance is commonly known, in ordering the restoration of status- quo ante. 14. It has been submitted on behalf of respondent No. 3 that no fault can be found with his adjustment at Chandi, inasmuch as respondents No. 1 and 2, have acceded the request of respondent …8… No. 3 and adjusted him at Govt. Senior Secondary School, Chandi. The petitioner has come to the court and has challenged his transfer order. It emerges from the material on record that respondent No. 3 was under order of posting on promotion to Gadda Gosain, but he was adjusted at Chandi in place of Perma Nand, who was also under order of posting on promotion to Chandi but was adjusted at Gadda Gosain in place of respondent No.3. The office order dated 15.7.2011 Annexure P-4 does not indicate that it was issued after taking approval of the competent authority as per transfer policy dated 8.12.2010. Therefore, respondent No. 3 cannot take benefit of office order dated 15.7.2011 Annexure P-4 for his adjustment at Govt. Senior Secondary School, Chandi. 15. In view of above discussion the petitioner has made out a case for interference. Accordingly, the petition is allowed, office order dated June 2011 Annexure P-3 transferring petitioner from Govt. Senior Secondary School, Chandi to Govt. Senior Secondary School, Gondla, District Lahaul & Spiti is quashed. The respondents No. 1 and 2 are directed to allow the petitioner to continue at Govt. Senior Secondary School, Chandi till he is transferred in accordance with law. In view of disposal of petition, CMP No. 7098/2011 is also disposed of. August 23, 2011. ( Kuldip Singh ), (Hem) Judge.