IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.: 1235 of 2008 Date of decision: 10.8.2009 Kishori Lal …. Petitioner. Versus Himachal Road Transport Corporation and another … Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1.No. For the petitioner: Mr. Onkar Jairath, Advocate. For the respondents : Mr. Adarsh Sharma, Advocate. Per Deepak Gupta, J. (Oral) The petitioner is employed as Clerk with the Himachal Road Transport Corporation (HRTC). He filed an original application before the erstwhile State Administrative Tribunal challenging the order dated 5th June, 2008 whereby he was ordered to be transferred from the office of the Regional Manager, HRTC, Una Unit to the HRTC office at Reckongpeo, Distt. Kinnaur. The allegation of the petitioner was that he had served in tribal area of Kinnaur for more than 10 years. According to him, since he had already served in tribal area for such a long period he could not have been transferred there again. The writ petition was contested by the respondents. According to the respondents, the petitioner has completed more than nine years at Una and has no 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 vested right to be posted at Una alone. It is urged that the transfer has been made in the public interest and administrative exigency as the HRTC is facing acute shortage of staff in tribal area. There can be no manner of doubt that it is the employer who is the best judge to decide the matters of transfers. However, it is also a well settled principle of law that every authority must act fairly and not arbitrarily. This Court in CWP No.1105 of 2006 titled Sushila Sharma vs. State of H.P. and others had dealt with the matters of transfers and issued the following directions:- “We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P. , who shall ensure that a proper transfer policy is formulated to ensure that the transfers are made only on administrative grounds and not on any others grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sent to these areas and there is a continuous process of change whereby all the employees have a chance to serve in tribal/hard areas as well as remote/rural areas. In the policy so framed, It should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forth its views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/cities are posted to rural/remote areas and hard/tribal areas in the transfer season when the transfers are made. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today.” 3 Pursuant to the aforesaid directions, the State has issued an office memorandum on 10th April, 2008 wherein the directions of this Court were noted and the policy incorporated the following provisions:- “In view of above all employees during their tenure of service will serve for at least one tenure in the Tribal/Difficult Areas. In order to earn their promotion, service in such areas will be mandatory. This would be subject to adequate number of posts being available in such areas. However, this will not apply to those employees who have less then 5 years to superannuate. The R & P Rules should incorporate this stipulation wherever applicable. A common provision to this effect will be devised by the Department of Personnel after having obtained the approval of competent authority. 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.” On 1st July, 2009 after we had heard the matter for some time, we had directed the HRTC to file an affidavit clearly stating therein as to how many clerks are employed in the various Divisions of the HRTC and how many of them have served in tribal areas and how many of them have never served in tribal areas. Affidavit has been filed by Shri Somesh Goyal, Managing Director, HRTC, in which it is stated that there are 134 clerks employed in all the Divisions of HRTC. Out of them only 21 clerks have served in tribal areas and 113 clerks have never served in tribal areas. The petitioner has already served for almost 10 years in the tribal area. If there are 113 clerks who have never served in the tribal area, we see no reason why the petitioner has been picked up and again sent to the tribal area. No reasons have been given as to why none of the other 113 clerks of the HRTC who have 4 never served even a day in the tribal area could not be posted there. In view of the above discussion, we find that the action of the respondents in posting the petitioner to the tribal area is not only violative of the transfer policy issued by the State Government and adopted by the HRTC but is also violative of Article 14 of the Constitution of India as the HRTC has discriminated between the petitioner and other 113 employees, without giving any reason for such discrimination. We accordingly quash the impugned transfer order. We, however, make it clear that the HRTC, if it so desires, may post the petitioner outside Una to any other non tribal area. The HRTC is directed to ensure that in the order of transfer passed in respect of the person who is transferred in place of the petitioner to the tribal area reference of this judgement is specifically made. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. 10th August, 2009 (Surinder Singh), J. ™