HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 1958 of 2007 Reserved on: 9.1.2008. Decided on: 10.1.2008. Narinder Kumar ……… Petitioner. Versus State of H.P. and others. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Karan Singh Kanwar, Advocate. For respondents No.1 to 3: Mr.R.M.Bisht, Deputy Advocate General. For respondent No.4: Mr.Rakesh Dogra, Advocate. Per V.K. Ahuja, J.: The petitioner has filed the present writ petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned H.P. State Administrative Tribunal, dated November 13, 2007, vide which the Original Application filed by the petitioner challenging his transfer orders was dismissed. Briefly stated the facts of the case are that the petitioner, who is working as PET, was transferred from Government Higher Secondary School, Puruwala to Government Senior Secondary School, Bakras, vide order, dated 17.5.2007. The petitioner challenged his transfer order before the learned Tribunal alleging that he was earlier transferred to Government Middle School ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. Sirmauri Tal, where he remained posted upto 18.3.2006. Thereafter, vide order, dated 13.3.2006, the petitioner was transferred to GHS, Puruwala, at his own request, on mutual basis, where he joined duties on 20.3.2006. Vide the impugned order, he has been transferred to Bakras. The petitioner alleged that the said transfer is illegal and mala fide since he has been transferred within a short span of one year and two months and the transfer was made to accommodate respondent No.4. It was also alleged that the transfer is against the transfer policy of the State Government that a person over and above the age of 55 years should not be posted in a hard area, since the petitioner was of the age of 55 years and 2 months, the said transfer is liable to be cancelled. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that the petitioner has been transferred from his present place of posting within a short span of one year and two months and as such the transfer order is mala fide. It was also submitted that once the transfer of the petitioner was made to GHS Puruwala on his own request, his previous stay within a distance of 25 kms. cannot be considered and he was entitled to be retained at present place of posting for a period of 3 years. To substantiate his plea, he relied upon a decision of a Division Bench of the learned H.P. State Administrative Tribunal in Indu Mahajan v. State of H.P., Latest HLJ 2005 (HP) 1157. The facts of the said case are different since in that case the petitioner, who was transferred on her request, was again transferred. It was held that once the petitioner was transferred to Palampur and the Department knew that she belonged to that place, they had waived this right to consider this question and this ground cannot be made for her re-transfer back to Dharamshala after a period of short stay. In the present case, the respondents relied upon the plea taken by them that previously also, the petitioner was posted within a radius of 25 kms. and keeping in view the fact of the stay of the petitioner at last place being within 25 kms., he has already remained at the place for a period of four years and about five months and as such keeping in view the previous stay, he has completed normal tenure of three years and as such the transfer was effected within the right of respondents No.1 to 3. According to Annexure A-2, which is the transfer order and condition No.17, tenure of service will be counted if the employee has served within the radius of 25 kms for the last three years. This plea was duly considered by the learned Tribunal and they had observed that keeping in view the previous stay, the petitioner had completed his tenure of three years and as such the said transfer order was held to be valid. There are no specific pleas in regard to mala fide made by the petitioner against any of the Officers who passed transfer orders and the plea taken had been duly considered by the learned Tribunal, we do not find any reason to hold that the said order calls for an interference by this Court. Coming to the another plea raised by the learned counsel for the petitioner, which was alleged in the writ petition also, that since he was of the age of more than 55 years and, therefore, cannot be posted in a hard area, the learned Tribunal did make a reference to this plea and held that the transfer policy and guidelines issued are mere instructions for the guidance and they do not confer any immunity from transfer in disregard of the same and the transfer can be effected depending upon the exigencies of service. They also made a reference to the decision of the Apex Court in State of Punjab v. Joginder Singh Dhatt, AIR 1993 SC 2486, wherein it was held that it is entirely for the employer to decide when, where and at what point of time a public servant is to be transferred from his present post. It was further held that ordinarily the courts have no jurisdiction to interfere with the order of transfer. No specific findings were given in regard to this plea but it was held that it is within the power of the employer to transfer an employee keeping in view the exigencies of service and public interest. We accordingly hold that there is no merit in the writ petition filed by the petitioner, which is dismissed accordingly. However, the petitioner shall be at liberty to apply for his transfer, if possible, taking a specific plea that he is of the age of 55 years and above and posted in hard area. These questions, pertaining to the age of the petitioner and as to whether the place where he has been transferred is a hard area or not, are to be considered by the respondents and it is for the respondents to consider this plea at the time of general transfers and for that purpose, the petitioner shall be entitled to make a representation which shall be considered by the respondents in accordance with law and it shall be disposed of within a reasonable time. In view of the final disposal of the main petition, all the pending applications shall also stand disposed of. (Deepak Gupta), J. (V.K. Ahuja), J. January 10 , 2008. (TILAK)