Kamlesh Kumar vs Anil Kumar Khachi And Others

Ajay Mohan Goel, J

Petitioner herein, alleges willful disobedience of order passed by erstwhile learned Himachal Pradesh Administrative Tribunal, in O.A. No.4257 of 2017, titled as Sh. Kamlesh Kumar Versus State of Himachal Pradesh and others, which original application stood disposed of, vide order 12.10.2017, by the learned Tribunal in the following terms:-

"Learned Additional Advocate General under instructions states that cadre of Beldars is a Divisional Cadre and they cannot be transferred from one division to another division. However, Annexure A-3, option/ consent of the applicant for transfer is sought. The applicant submitted his consent for transfer and forfeiture of his services vide Annexure A - 4. Consequently, there will be a direction to 2nd respondent to consider the case of the applicant for transfer from Bharmour Division to Palampur Division in accordance with law by 15.11.2017. The applicant shall produce a certified copy of this order before the 2nd respondent within a week.

In view of the above, the original application stands disposed of accordingly, so also pending miscellaneous application(s), if any."

Vide office order dated 11.05.2018, prayer of the petitioner for his transfer from Bharmour Division of HPPWD to Palampur Division, stands rejected by the Competent Authority, inter alia, on the ground that Recruitment and Promotions Rules of Beldars, provide that post is of Divisional Cadre post and therefore, no transfers to external cadre can be affected.

During the course of arguments, learned counsel for the petitioner had argued that there had been umpteen examples wherein, Beldars stood transferred Inter-Division on the condition that the transferred Beldar had to forego his seniority. Learned counsel further argued that taking into consideration the peculiar facts of this case, wherein, on health grounds, the petitioner was seeking his transfer to Palampur Division, the act of the authority concerned of rejecting his prayer that Inter-Division transfer primarily on the ground that there was no such provision in the Recruitment and Promotions rules, was willful disobedience of orders passed by the Court as the Authority, could not take this stand when innumerable examples existed of such like transfers.

During the pendency of this petition, on the direction of this Court, certain affidavits stood filed by the Competent Authority and one such affidavit is dated 19th August, 2020. It stands mentioned in this affidavit that before the year 2015, Beldars were being transferred from one Division to another on their undertaking to forego their seniority. Thereafter, in view of the pronouncement of a verdict by erstwhile learned Himachal Pradesh Administrative Tribunal in O.A. No.3062 of 2015 dated 27.11.2017 (wrongly mentioned in the petition as O.A. No.3094 of 2017), now the Department was not making any Inter-Division transfers.

I have heard learned counsel for the parties and gone through the pleadings as well as documents appended with this contempt petition.

In my considered view, though there is no dispute that as per Recruitment and Promotion Rules, in force, the post of Beldar is a Divisional Cadre post and there is no provision of Inter-Division transfer, but it is also an undisputed fact that Beldars have been transferred from one Division to another on foregoing their seniority. The order passed by the erstwhile learned Tribunal in Fagua Singh Versus State of H.P. and Anr., in my considered view, is being misread by the authority concerned, because said order has been passed by erstwhile learned Tribunal in view of the peculiar facts of the case in hand, wherein, the erstwhile learned Tribunal held that on account of paucity of Beldars in Kalpa Division, the request of Beldar concerned for transfer to another Division could not be conceded to. Further, reference in para-4 of the said order, certain orders passed by this Court, in my considered view, was totally misconceived on the part of erstwhile learned Tribunal as propriety demands that erstwhile learned Tribunal should not have had made any observation with regard to the orders, which stood passed by this Court under Article 226 of the Constitution of India.

Be that as it may, this contempt petition is being disposed of with a direction that order passed by erstwhile learned Himachal Pradesh Administrative Tribunal in Fagua Singh Versus State of H.P. and Anr. (supra), shall not come in the way of the authority for compassionately and sympathetically considering the case of the petitioner from being transferred from Bharmour Division of HPPWD to Palampur Division of HPPWD in view of health issues. With this clarification, the contempt petition stands disposed of with the direction that needful be done by the Competent Authority on or before six weeks from today. Notice discharged.