IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3577 of 2010 alongwith CWP No. 4972 of 2010 Reserved on: 07.07.2011 Decided on: 19.07.2011 CWP No. 3577 of 2010 Hem Raj …Petitioner. Versus State of H.P. & others …Respondents. CWP No. 4972 of 2010 Hira Lal …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. CWP No. 3577 of 2010 For the petitioner: Mr. Ashok Sharma, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, with Mr. Rajesh Mandhotra, learned Deputy Advocate General, for respondents No. 1 to 3. Mr. Surinder Saklani, Advocate, for respondent No. 4. CWP No. 4972 of 2010 For the petitioner: Mr. Surinder Saklani, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, with Mr. Rajesh Mandhotra, learned Deputy Advocate General, for respondents No. 1 to 3. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- Mr. Lalit Sharma, Advocate, for respondent No. 4. Mr. Ashok Sharma, Advocate, for respondents No. 5 and 6. Deepak Gupta, J. These two petitions are being disposed of by common judgment since facts of both the cases are interlinked with each other. 2. Kaushalya Devi, respondent No. 4 in CWP No. 4972 of 2010 was admittedly a regular teacher working with the Education Department. She, at the relevant time, was working at Government Primary School, Rajgarh and was ordered to be transferred to Government Primary School, Balh Tikkar. It appears that Kaushalya Devi made some representation and on the basis of her request, she was adjusted at Government Primary School, Delag, Chachiot-1 and Hira Lal, petitioner in CWP No. 4972 of 2010 was ordered to be transferred to Balh Tikkar vide order dated 7th June, 2010. Hira Lal is working as a Gramin Vidya Upasak and is not a regular teacher. Hem Raj, petitioner in CWP No. 3577 of 2010, at the relevant time, was working as a contract teacher in Government Primary School, Katwandhi. He was working on contract basis in this school since 29th June, 1999. On 14th June, 2010, the respondent No. 3 passed an order whereby Hem Raj has been posted at -: 3 :- Balh Tikkar and Hira Lal, who was under transfer from Delag, has been adjusted at Katwandhi in place of the petitioner Hem Raj. Both, Hem Raj and Hira Lal, have filed these petitions challenging their transfers. The common ground raised by both of them is that they being contract teacher/Gramin Vidya Upasak could not have been transferred except with their consent or for administrative reasons. It is also their case that they have been transferred not for administrative reasons, but only to adjust Kaushalya Devi. 3. It is more than obvious that Balh Tikkar is probably a difficult or hard area and none of the teachers wants to serve there. 4. As far as the question whether a contract teacher/Vidya Upasak can be transferred or not is concerned, it would be pertinent to mention that the Government had issued Office Memorandum on 13.08.2009, which reads as follows: “The undersigned is directed to invite a reference to this Department Office Memorandum of even number dated 10th April, 2008 vide which Guiding Principles for effecting transfers of State Government employees have been circulated. The matter with regard to extending the provisions of these Guiding Principles to the employees as are appointed on contract basis by various Departments and Para Teachers and Gramin Vidya Upasak of Education Department was under consideration of the Government. Now it has been decided by the government that the Contract appointees of all the Departments and Para Teachers and Gramin Vidya Upasak in Education Department, who have completed five years tenure at one place of posting will be eligible for transfer on need based basis where ever required on administrative grounds.” -: 4 :- 5. A Division Bench of this Court in CWP No. 3437 of 2010, dealing with this memorandum, held as follows: “It is clear from the office memorandum extracted above that the contract employees become eligible to make a request for transfer on completion of five years tenure at the present place of posting. Equally, the department on administrative grounds is entitled to transfer a contract employee after five years of tenure at one place. But the contract employees are not entitled for transfer as of right, so as to disturb the regularly appointed employees, even when the regularly appointed employee has completed the normal tenure. It is squarely clear from the office memorandum extracted above that the eligibility of a contract employee for transfer will depend on two conditions; (i) the same will be considered only on need basis and (ii); the same will be done only on administrative grounds. These are to be read and understood and applied qua the contract employees and not qua a regular employee to be transferred so as to accommodate a contract employee. However, it needs to be also clarified that in case a regularly appointed employee has to be transferred on any administrative grounds, and in case there is a vacancy available on account of such transfer, it would certainly be open to the contract employee to point out such vacancy remaining unfilled and in that situation that request has to be considered. In other words, the norms do not entitle a contract employee to make a request for transfer by transferring a regular employee. Therefore, it is made clear that the eligibility of the contract employee to request for transfer and consideration of that request will depend only on availability of the vacancy.” 6. Mr. Ashok Sharma, learned counsel for Hem Raj and Mr. Surinder Saklani, learned counsel for Hira Lal submit that in view of the aforesaid judgment, their clients could not have been transferred since they were working as contract teacher / Vidya Upasak. According to them, a contract employee/Vidya Upasak can be transferred only on a request made by him. This is not in consonance with the judgment relied upon by them, wherein the Hon’ble Division Bench has clearly held that the department on -: 5 :- administrative grounds is entitled to transfer a contract employee after five years of tenure at one place. It was further held that the contract employees are not entitled for transfer as of right, so as to disturb the regularly appointed employees. Having held so, it is apparent that there is no material on record to show what was the administrative reason for which Kaushalya Devi, who was under transfer to Balh Tikkar, was adjusted at Delag. The State in its reply has not given any reason, though Kaushalya Devi in her reply has supported the order. It would be pertinent to mention that in Hem Raj’s case, interim directions were issued and stay order granted with the result that he continued to work at Katwandhi. 7. Merely because the students are living in remote areas is no reason why they should be deprived of education. It is more than obvious that none of the teachers wants to go to Balh Tikkar. The students living in Balh Tikkar and the surrounding areas are also the citizens of this country and they also have a fundamental right to education guaranteed to them under Article 21-A of the Constitution of India. Why should the children be deprived of their fundamental right of education only to accommodate these teachers. 8. Hem Raj has been working at Katwandhi since 1999 and has now been regularized. He has no vested right to continue at Katwandhi indefinitely and now as he has been regularized he can be posted at any station in the State. As far -: 6 :- as Hira Lal is concerned, he also has been serving as Gramin Vidya Upasak since 2002 at Delag. He is also now at Katwandhi. Resultantly, there are two teachers at Katwandhi and none at Balh Tikkar. The department also has given no reasons why Kaushalya Devi, who was under transfer to Balh Tikkar, was later adjusted at Delag. 9. Keeping in view the aforesaid facts and also the fact that Hem Raj has now been regularized and now can be transferred to any other station, both the writ petitions are disposed of with a direction to the Director of Elementary Education to reconsider the cases of the transfer of all the three persons and to take a fresh decision thereof in the light of the observations made hereinabove. The decision be taken within three weeks from today and compliance affidavit be filed in this Court by 11th August, 2011 and the matter be listed in Court only for the purpose of ensuring compliance of this order on 12th August, 2011. 10. With these observations, the writ petitions are disposed of. No costs. Copy Dasti. (Deepak Gupta) Judge July 19, 2010 (rajni)