IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) Nos.: 1285 of 2008 and 1662 of 2008 Date of decision: 13.7.2009. CWP (T) No. 1285 of 2008. Sharda Devi … Petitioner. Versus State of H.P. and others …Respondents. CWP (T) No. 1662 of 2008 Ram Dayal … Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1 Yes. In CWP (T) No. 1285 of 2008. For the petitioner: Mr. Pankaj Sharma, Advocate. For the respondent No.1 to 3: Mr. R.K.Bawa, Advocate General with Mr. Ram Murti Bisht, Deputy Advocate General. For the respondent No. 4.: Mr. Tarlok Chauhan, Advocate. In CWP (T) No. 1662 of 2008 For the petitioner: Mr. Tarlok Chauhan, Advocate. For the respondent No.1 to 5: Mr. R.K.Bawa, Advocate General with Mr. Ram Murti Bisht, Deputy Advocate General. For the respondent No. 6.: Mr. Pankaj Sharma, Advocate. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Per Deepak Gupta, J. (Oral) This judgement shall dispose of the two writ petitions being CWP(T) No. 1285 of 2008 and CWP (T) No. 1662 of 2008 filed by respondent No.4 here-in. On 26.6.2009 we had directed that both the petitions be listed together. Only one petition has been listed but with the consent of the parties, we have called for the other writ petition since questions involved in both the petitions are common. Smt. Sharda Devi filed O.A. No. 1739 of 2008 before the erstwhile H.P.State Administrative Tribunal. Her grievance was that after a short span of one year and three months she has been transferred from Govt. Primary School, Narkanda, Distt. Shimla to Govt. Primary School, Addi, block Nankhari, Distt. Shimla, which is at a distance of about fifty kilometers from Narkanda. Shri Ram Dayal, respondent No.4 was transferred in her place. On the allegations made in the petition, the Tribunal passed an interim order in favour of the petitioner on 17th June, 2008. From the reply filed by the State as well as by the private respondent, it appears that in fact respondent No.4 had joined duties at Govt. Primary School, Narkanda, on 20th June, 2008. In view of the fact that a judicial authority had passed a stay order in favour of the petitioner, the Block Elementary Education Officer, Kumarsain, passed an order on 1.7.2008 directing the respondent No.4 Ram Dayal to join duties at Addi. Thereafter, Ram Dayal filed O.A. No. 2339 of 2008 giving rise to CWP (T) No. 1662 of 2008. Surprisingly the Tribunal also stayed the operation of the order dated 1.7.2008 and a direction was given to the respondents to 3 permit Ram Dayal to continue to work at Govt. Primary School, Narkanda. As a result of these two contradictory orders passed by the Tribunal, two teachers i.e. the petitioner and respondent No.4 Ram Dayal were posted against one post at Govt. Primary School, Narkanda and no teacher was posted at Addi. It would have been much better if the Tribunal had either not passed orders in the second matter or heard both the cases together and disposed them immediately. We are firmly of the view that stay orders by the Court should not be passed only keeping in view the difficulties of the employees especially teachers and not taking into consideration the difficulties faced by the minor children. The Parliament introduced Article 21A in the Constitution of India by the Constitution (eighty- sixth amendment) Act, 2002. This salutary provision in the Constitution of India mandates that the State shall provide free and compulsory education to all children aged between 6 to 14 years. This Article gives a fundamental right to these children to claim proper education from the State. This fundamental right of the minor children cannot be set at naught by passing stay orders in such a cursory manner. Such stay orders result in no teacher being posted in some schools. This affects the education of the children and violates article 21A of the Constitution. The Courts must remember that if the teachers have some right to air their grievances against their transfers, a citizen also has a fundamental right enshrined in the Constitution and since the rights of minors are involved it is the duty of the Court to ensure that their rights are not made illusory by passing such stay orders. 4 We may make it clear that we do not intend to say that no stay order can be passed in transfer cases. However, the Court before passing stay orders, which affects the rights of ordinary citizen, must also weigh the larger public interest as against the interest of the employee. Even if, stay order is not granted, the matter can later be decided in favour of the employee which would not result in any harm or prejudice to him. If on the other hand, stay orders are passed like in the present case, resulting in no teacher being there in a school for a long period of time the minor children and public at large suffer. The main ground raised by Smt. Sharda Devi was that she had been transferred after a short span of one year and three months. Reply has been filed by the State which shows that prior to her posting at Narkanda the petitioner served at Govt. Primary School, Akantbari, which is merely six to seven kilometers from Narkanda, for a long period of nine years. Prior to that she was serving in Govt. Primary School, Shagoti, for a period of six years. The distance of this school is less than 25 Kms from Narkanda. Virtually, the petitioner has managed to remain posted in or around Narkanda for a period of 17 years. This Court has repeatedly held that the normal tenure of three to five years laid down in the transfer policy is meant for those employees who serve in different areas and is not meant to help those employees who somehow manage to stay in or around one station for such a long period of time. It has been urged by Shri Pankaj Sharma, learned counsel for the petitioner, that the husband of the petitioner is blind and is 5 disabled and therefore, she may be adjusted at Narkanda. The petitioner, as mentioned above, has been in and around Narkanda for more than 17 years and cannot be adjusted permanently at one place. She has only been posted at a distance of 50 Kms. from Narkanda and we find no irregularity or illegality in the said order of transfer. Her petition is accordingly rejected. As a consequence thereof the respondent No.4 shall be permitted to continue at Narkanda whereas petitioner must join at Addi. Shri Tarlok Chauhan, learned counsel for respondent No.4 Shri Ram Dayal, has urged that salary has not been paid to Shri Ram Dayal since June, 2008. We find that respondent No.4 is being made to suffer for no fault of his. Initially he joined at Narkanda but this order was stayed and thereafter he also obtained a stay order from the Tribunal. Consequently, the State is directed to release the salary of respondent No.4 within two months from today. In view of the above discussion, the CWP(T) No. 1285 of 2008 is dismissed and CWP(T) No. 1662 of 2008 is allowed. No order as to costs. ( Deepak Gupta ), J. 13th July, 2009 (Surinder Singh), J. ™