HP High Court cancels politically considered transfer of Principal
Shimla, July 8
The Himachal Pradesh High Court recently canceled a transfer order of principals in the State Education Department, citing political considerations. The court stated that public interest and administrative exigency should take precedence over political factors. It was found that the government and officials relied on a note issued by the MLA to effect the transfer, which the court deemed inappropriate. The court also noted that successive governments have been violating posting norms of the District Institute of Education and Training (DIET) by engaging in political transfers.
On June 28, 2023, a division bench comprising Justice Tarlok Singh Chauhan and Justice Satyen Vaidya passed the order, quashing the transfer notification issued by the Department of Higher Education on February 28, 2023. The court directed the officials to reconsider the transfer of the concerned respondent based on parameters of public interest and administrative exigency if necessary.
A copy of the order was sent to the Chief Secretary to the Government of Himachal Pradesh for compliance. The petitioner was instructed to comply with the transfer notification that assigned him to GSSS Jaihar, while emphasizing that the administrative department should fill the subsequent vacancy of principal at DIET Nahan in accordance with the court’s observations.
Also read:Lamentable state of affairs that when teachers would fall from highest pedestal to lowest level by caring after their self- interests: HP High Court
The matter
The petitioner, Rishi Pal Sharma, had filed a petition against the transfer notification issued by the Department of Higher Education. The petitioner argued that the transfer was not based on administrative exigency or public interest but was merely an accommodation for respondent No.3 at the behest of the local MLA. The petitioner also claimed bias on the part of the MLA. The official respondents contended that the petitioner, as a Class-I (Gazetted) State cadre post holder, could be posted anywhere in the state based on administrative requirements.
The counsel for the state, Advocate General Anup Rattan, argued that since the petitioner’s pay, seniority, status, and scale were not affected, he had no grounds for grievance against the transfer notification. It was further stated that the guidelines formulated by the state government should not deprive the competent authority of the right to transfer an employee in public interest or exigency of service.
The MLA defended the issuance of the DO (Demi Official) note, stating that respondent No.3 requested the transfer to Nahan due to his mother’s old age and ailment, as well as the hardships faced by his family. The MLA recommended the transfer solely on these grounds, denying any ill-will towards the petitioner.
The court examined the counsel’s arguments and reviewed the case records. It was revealed that the transfer recommendations made by the local MLA were approved without independent consideration by the administrative department. The court emphasized that while MLAs and ministers have the right to make recommendations, these recommendations cannot be considered final. The underlying principle for transfers should be based on public interest or administrative exigency, which should be evident from the reasons provided by the administrative department.
Also read:HC cancels a transfer order on political ground
The court noted that the official respondents’ administrative functioning has been lacking in many aspects despite previous judgments. The court found that the transfer notification concerning respondent No.3 was clearly unsustainable. The petitioner’s transfer was also found to violate the norms set by the Himachal Pradesh government for DIET employees, as the petitioner had not completed the prescribed five-year tenure. However, the court ruled that the petitioner could not raise this contention since he himself had been transferred without undergoing the required selection process.
The court stated that the petitioner could not selectively apply norms to suit his situation while ignoring other aspects. Additionally, the court mentioned that transfers should not be the suggested mode for filling posts in DIET according to the norms. The petitioner’s previous transfer from GSSS Mehando-Bag to DIET Nahan was based on a D.O. Note from the Speaker of the H.P. ‘Vidhan Sabha’ and approved by the Chief Minister.
In conclusion, the court emphasized the importance of upholding the rule of law and stated that political functionaries in the state had been reprimanded before for effecting transfers based on political considerations. It highlighted the need for employees and officers to seek justice through the High Court and Tribunals due to such practices.
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