Shimla, Sept 15
Holding a Demi Officio note issued by BJP member of Parliament Suresh Kashyap an encroachment in the jurisdiction and authority of the Administrative authority, Himachal Pradesh High court has quashed a transfer of a school teacher being done.
In a five page order passed by the division bench of justice Tarlok Singh Chauhan and justice Varinder Singh on September 12 copy of which was supplied to media here today said that aggrieved petitioner was transferred on the perusal of a D.O. Note but the station(s) to which he could be transferred is suggested on the basis of same D.O. Note. Court quashed the impugned order of Director Elementary Education of August 16, 2022, stating that transfer could not be sustained and is accordingly set aside.
Court also found that said DO note issued by BJP MP effected transfer, amounts to encroachment of the jurisdiction and authority of the Administrative Authority and, therefore, clearly is not sustainable as the question as to who and where is to be posted is the sole discretion of the Administrative Authority.
Respondent Kapildev who secured the DO against the petitioner defended him. The counsel for respondent Kapildev Senior Advocate Sanjeev Bhushan stated that it is due to extreme hardship that he had approached the Member of Parliament for transfer. The father of respondent No.3 died on 09.06.2020 and after his death, it is he, who is required to take care not only of his mother, who is currently 71 years of age and suffering from multiple ailments, but also his daughter, who is 16 years and suffering from a rare disease i.e. Leukocytosis and currently under treatment from Kidney Hospital, Jalandhar.
It is more than settled that as regards the case of individual hardship, it is for the employer to decide the same and reference could conveniently be made to the judgment of the Supreme Court in Rajendra Roy vs. Union Of India and anr . ( 1993 ) 1 SCC 148. In the given facts and circumstances of the case, court disposed the petition by directing respondent Director Elementary Education to take a decision of transfer thereupon within a period of 10 days from today giving transfer to other choice station of respondent Kapildev.
However Court before parting, it is made clear that this order is being passed in the peculiar facts and circumstances of the instant case and should not be treated as a precedent in future.
Court fixed the date of September 27 , 2022 for the compliance of its order.
