Gopal Krishan vs State of Himachal Pradesh and another

Rajiv Sharma, Judge

Petitioner was working as A.S.I., Executive Clerical Cadre with effect from 19.11.2007 in Bilaspur district. Thereafter he was transferred to Shimla. He joined his duty at Shimla on 24.3.2011. The petitioner has now been transferred from C&TS, Shimla to Superintendent of Police office, Una vide office order dated 5.10.2011.

Mr. P.P. Chauhan, Learned Counsel for the petitioner has vehemently argued that petitioner''s wife is posted as Female Health Worker at Matiana and the respondents should have taken this aspect into consideration while transferring him from Shimla to Una. He has further argued that his client''s father is aged 96 years and he has to look after him. He lastly contended that similarly situate persons who belong to the same district have been retained in their home district and the petitioner has been picked up for invidious discrimination.

Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the petitioner is serving as ASI (NGO Grade I) in Executive Clerical Cadre and his service conditions are governed under the H.P. Police Act, 2007 read with Punjab Police Rules as applicable to the State of Himachal Pradesh. He has also relied upon Section 86(2) of the H.P. Police Act, which provides that no NGO Grade I shall be posted in his home district.

I have heard Learned Counsel for the parties and gone through the pleadings carefully.

Petitioner was working as A.S.I., Executive Clerical Cadre at Bilaspur before his transfer to Shimla. He has joined his duty at Shimla on 24.3.2011. When the petitioner was posted as A.S.I., Executive Clerical Cadre in Shimla, the fact that he belongs to Shimla district was well within the knowledge of the competent authority. Once the petitioner was posted at Shimla and he has joined his duty there, he ought not to have been transferred before he had completed his normal tenure of two years. The wife of the petitioner is serving as Female Health Worker at Matiana in Shimla district. The petitioner has to look after his father who is 96 years old. The Police Department while effecting the transfer should have taken into consideration that it was a couple case since petitioner''s wife was posted as Female Health Worker at Matiana. There is no reason assigned in the reply why the petitioner was initially allowed to join at Shimla on 24.3.2011 and why there being no change in circumstances, he has now been transferred to Una. It is for the employer to post any particular person at a particular place. However, the power to transfer is coupled with duty to exercise the same in a judicious manner. Since the petitioner has been permitted to join at Shimla on 24.3.2011, he should not have been transferred to Una after a short period of about six months vide office order dated 5.10.2011.

Petitioner belongs to a disciplined force and in normal circumstances he should obey the orders of his superior officers. However, we cannot be oblivious that in a disciplined force also, the genuine difficulties faced by the police personnel should be redressed in a just and fair manner. Normally the scope of judicial review in transfer matters is very limited, but in the present case taking into consideration the fact that petitioner''s father is 96 years old and also the fact that the petitioner has not completed his normal tenure at the present place of posting, this Court has intervened in the present matter. Moreover, it is also a couple case.

Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-1, dated 5.10.2011 qua the petitioner is quashed and set aside. However, the liberty is reserved to the respondent-department to transfer the petitioner in accordance with law on completion of his normal tenure at the present place of posting, i.e. Shimla, in a phased manner. The pending application(s), if any, also stands disposed of. No costs.