2025 (6) TMI 1802 - HC - Indian Laws

Challenge to transfer order - violation of Transfer Policy - petitioner herein has not been permitted to complete his normal tenure at present place of posting and transfer has been effected with a view to accommodate the private respondent who has already served at Kandwal for more than one and a half year prior to his posting at Una. HELD THAT - It is agreed that petitioner has not been transferred from MPB Kandwal rather charge of aforesaid MPB Kandwal which was given to him in addition to his duty at Nurpur has been withdrawn. Though petitioner attempted to argue that petitioner was not given charge of MPB Kandwal rather he was performing his duty at that station but having perused impugned transfer order this Court is not persuaded to agree with Mr. Awasthi because bare perusal of same clearly reveals that vide impugned transfer order charge of MPB Kandwal Revenue District Nurpur (GST Wing) issued vide office order dated 13.09.2024 has been cancelled and petitioner has been given complete charge of Nurpur Circle meaning thereby prior to issuance of impugned transfer order though petitioner was working at Nurpur Circle but in addition to same he was given charge of MPB Kandwal which has now been taken and complete charge of Nurpur Circle has been given to the petitioner. Conclusion - This Court finds no reason to interfere with the impugned order which otherwise by no stretch of imagination can be said to be transfer order. Present petition fails and dismissed accordingly.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

- Whether the impugned order withdrawing the charge of MPB Kandwal from the petitioner and assigning him the complete charge of Nurpur Circle amounts to a transfer violating the Government Transfer Policy.

- Whether the petitioner was denied the opportunity to complete his normal tenure at the place of posting, thereby infringing upon the Transfer Policy.

- Whether the impugned order was passed with an ulterior motive to accommodate another officer who had already served at MPB Kandwal for more than one and a half years.

- Whether the petitioner's family would be dislodged due to the alleged transfer and lack of government accommodation at Nurpur.

- Whether the petitioner's contention that he was performing duty at MPB Kandwal without formal charge is sustainable.

- Whether the impugned order can be construed as a transfer order under the applicable legal framework and Transfer Policy.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the impugned order amounts to a transfer violating the Transfer Policy

The relevant legal framework includes the Government Transfer Policy of Himachal Pradesh, which stipulates that Excise Officers can be transferred from one station to another only after completing one year at the existing station. The petitioner alleged that the impugned order violated this policy by withdrawing his charge prematurely.

The Court examined the impugned order dated 18.10.2024, which withdrew the petitioner's charge of MPB Kandwal and assigned him complete charge of Nurpur Circle. The Court noted that the petitioner was already posted at Nurpur Circle and was holding additional charge of MPB Kandwal. Thus, the order did not transfer the petitioner from one station to another but merely withdrew the additional charge.

The Deputy Advocate General clarified that the distance between MPB Kandwal and Nurpur is less than 12 kilometers, indicating that the petitioner's primary posting remained the same. Additionally, the petitioner had been working at MPB Kandwal since October 2024 and continued there after a Court order dated 23.10.2024, amounting to more than eight months of service at that location.

Applying the law to these facts, the Court held that the impugned order cannot be construed as a transfer order in violation of the Transfer Policy. The petitioner was not moved from his primary station but was relieved of an additional charge.

Issue 2: Whether the petitioner was denied the opportunity to complete normal tenure

The petitioner contended that the withdrawal of charge was premature and intended to accommodate the private respondent who had previously served at MPB Kandwal for over one and a half years. The Court noted the Transfer Policy's provision that no Excise Officer should be posted at Barriers for more than one year.

The Court observed that the private respondent had already served at MPB Kandwal prior to his posting at Una and suggested that the department should consider posting another person at MPB Kandwal to comply with the Transfer Policy. However, the Court found no evidence that the petitioner was denied his normal tenure, given that he was not transferred but only relieved of additional charge.

Issue 3: Whether the petitioner's family would be dislodged due to lack of government accommodation at Nurpur

The petitioner raised a plea that no government accommodation was available at Nurpur, which would dislodge his family upon transfer. Pursuant to the Court's direction, the Deputy Advocate General submitted that government accommodation was available at MPB Kandwal but not for Assistant State Taxes and Excise Officers in Revenue District Nurpur.

The Court accepted that the petitioner's primary posting was at Nurpur Circle but noted the proximity of MPB Kandwal to Nurpur (less than 12 kilometers), implying that the petitioner's residence need not be shifted drastically. This reasoning undermined the petitioner's claim of dislodgement.

Issue 4: Whether the petitioner was performing duty at MPB Kandwal without formal charge

The petitioner argued that he was not formally given charge of MPB Kandwal but was performing duties there. The Court rejected this contention after perusing the impugned transfer order, which clearly indicated that the petitioner had been given charge of MPB Kandwal in addition to Nurpur Circle, and that charge was now withdrawn.

Issue 5: Whether the impugned order can be construed as a transfer order

The Court analyzed the language and effect of the impugned order and found that it did not amount to a transfer order. The petitioner's primary posting remained Nurpur Circle, and only the additional charge of MPB Kandwal was withdrawn. The Court emphasized that the petitioner had continued at MPB Kandwal for over eight months and that the impugned order simply restored his status to a single charge holder.

The Deputy Advocate General also highlighted that the petitioner's petition concealed facts by portraying the order as a transfer when it was not.

3. SIGNIFICANT HOLDINGS

- "The impugned transfer order itself suggests that though petitioner prior to his transfer was posted at Nurpur was given additional charge of MPB Kandwal, which has now been withdrawn."

- "Petitioner has not been transferred from MPB Kandwal, rather charge of aforesaid MPB Kandwal, Revenue District Nurpur (GST Wing) issued vide office order dated 13.09.2024 has been cancelled and petitioner has been given complete charge of Nurpur Circle."

- "Distance between MPB Kandwal and Nurpur is less than 12 Kms and as such, it cannot be said that petitioner has been transferred."

- "As per Transfer Policy formulated by Government of Himachal Pradesh, Excise Officer can be transferred from one station to other after expiry of one year."

- "Petitioner had been working at MPB Kandwal w.e.f October, 2024 and thereafter, pursuant to order dated 23.10.2024 passed by this Court, he is still continuing of the same place, meaning thereby, he has almost completed more than eight months."

- "Present petition fails and dismissed accordingly."

- The Court also noted the departmental obligation to consider posting another person at MPB Kandwal, given the Transfer Policy's limitation on posting duration.