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Virender Kumar Thakur v. State of H.P and Ors.
In the High Court of Himachal Pradesh at Shimla, the Corum headed by Hon'ble justice Ajay Mohan Goel. The petitioner is an officer belonging to the Himachal Pradesh Police Service, on placement as Superintendent of Police (S.P.) on 20.02.2020 was order to be posted as S.P., SDRF Junga district Shimla. On 02.06.2020, the petitioner was transferred to the post of S.P., PTC Daroh, District Kangralut. This order was further modified, and the petitioner was sent to Jungle Beri as Commandant, 4th IRBN, District Hamirpur. He joined the post on 11.06.2020.
The grievance of the petitioner is that within a short period, he was again transferred from his present posting at Jungle Beri to Kullu as commandant Home Guards on 22.08.2020, which according to the petitioner, is a violation of the provision of sec12 and sec 56 of the Himachal Pradesh Police Act, 2007 ( hereinafter referred as Act of 2007). Further that the notification dated 22.08.2020 has not been issued by the state either on account of any administrative exigency or in the public interest but has been issued just to accommodate the private respondent, whose husband happens to be an IPS officer and who has been ordered to be posted at Hamirpur as the new S.P. It has been prayed by the petitioner that as the impugned order has been passed by the state for violating the provisions of Sec 12 and 56 of the Himachal Pradesh police Act 2007, by ignoring the fact that the petitioner is on the verge of retirement as he was to retire on 31.05.2021, the impugned notification be quashed and set aside.
While opposing the petition, the state has submitted that the challenge by petitioner to the transfer order on the ground of short stay is unsustainable as he is a class 1 officer. Therefore the department is within the right to transfer the petitioner given the need for service. It is further admitted that the post to which the petitioner was transferred has been manned by the cadre of Indian Police Service, whereas the petitioner belongs to the Himachal Pradesh Police service. Therefore, to avoid any complication, he was transferred to Kullu. While issuing such order, the government has considered the place of posting of the husband of the private respondent in a couple of cases.
Further, it was stated by the learned advocate general that the petitioner, who is on the verge of retirement, has been transferred to the post of the commanding officer, home guards at Mandi, which happens to be near his permanent resident who is located at Jogindernagar, District Mandi. On these accounts, it is prayed on behalf of the state that there is no merit in the petition, and the same is liable to be dismissed.
The petitioner has refused the contention so raised by the state. As per the petitioner, the stand was taken by the state that the petitioner is in Himachal Pradesh Police Service that is why he is not allowed to be appointed is misconceived because there have been a lot of cases where the officer belongs to Himachal Pradesh Police Service Cadre who have been called to serve the post.
The court, after hearing both the parties, is of the view that the grievance of the petitioner is about being transferred from Jungle Beri to Kullu. Though the transfer is done within two months and it is correct, no assurance of minimum tenure of the transfer is available to class 1 officer, yet the court made an observation that the frequent transfer of even class 1 officer is neither in the interest of administration, not the employer.
The notification of transfer was issued by the Chief Secretary to the government of H.P. Though it has been contended by the petitioner that this transfer violates sec 56 of the Act. However, no material fact has been put forward to demonstrate the transfer has been affected by the government. The reason as to why the court is shifting the burden of proof on the petitioner is because the law says that he who alleges has to prove.
According to sec 12 of the 2007 Act, provides that an officer posted shall normally have a minimum tenure of 2 years or maximum tenure of 3 years unless promoted to any higher post. It is also provided that any officer can be removed from his post before the expiry of the tenure by the competent authority. Since the petitioner was not holding the post of S.P. of the district at that time when the transfer order was passed, this does not confer any protection upon the petitioner as envisaged under sec 12 of the 2007 Act.
The court further addressing the contention of the petitioner that the impugned transfer order was not passed on account of any administrative exigency or in the public interest but to adjust private respondent only. By making a false assertion to this effect, it cannot be said that the petitioner has been able to discharge his obligation in this regard. The court taking into consideration the fact that the husband is an IPS officer has been placed adjacent to each other by the state is not wrong on the part of the state. Therefore, this court does not agree with the petitioner that the transfer is passed on account of the interest of the private respondent, rather than in public interest.
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