Transfer effected with Verification, Inquiry and Application of Mind Valid: Himachal Pradesh High Court

On a dispute regarding transfer/repatriation from District Institute Of Education And Training (DIET) to parent department after 18 years of service; the Himachal Pradesh High Court held that when done with verification, inquiry, and application of mind by the competent authority; such a transfer is valid and not unlawful. This Judgment was passed in the case of Dinesh Gulati vs. State of H.P. & others [CWP No.2183/2021] by a Single Bench consisting of Hon’ble Justice Vivek Singh Thakur.

Petitioner approached the High Court to quash two impugned orders against him. He was posted in the DIET Nahan, District Sirmour, and had been sent back to his parent department (Higher education) at GSSS Dhamwari District against the vacancy of Lecturer. Vide another order respondent no.4 was posted in DIET Nahan, from GSSS Dhamwari District against the vacancy of the same position. It was the case of the petitioner that his transfer and repatriation were not for administrative issues and the posting/transfer of himself and Respondent no.4 was a violation of norms notified by the Education Department and issued as per the National Council for Teacher Education (NCTE) Guidelines on 10.10.2013. the petitioner alleged that when he had pointed out the financial irregularities to the principal, the principal started filing complaints against him, and at the same time Respondent no.4 approached the education minister. Thus the transfer/ posting took place. However the same was against the above-mentioned notification where transfers were banned and could happen only on medical grounds or administrative exigency. The petitioner also had the necessary qualification inclusive of Masters in Education.

The High Court after analyzing the evidence and hearing the parties observed that, the petitioner was serving in DIET, Nahan from 2002. In 2016, he was asked the reasons for not furnishing the question papers for his subject and later in 2018 for casual leave to Monitor Primary teacher training without permission and for leaving the institution without any information. A penalty of Censure was imposed on him and around the same time, a sexual harassment case was filed against him but was withdrawn after he undertook to state he wouldn’t repeat such language. The petitioner was also the warden of a hostel but despite the order of the principal to hand over the charge, he didn’t do so.

The High Court observed that the present case was not a mere transfer but it came with verification and application of mind. The transfer was made to maintain discipline in the institution. At the same time, the employer must conduct an inquiry before the transfer to ensure that the complaints are not bogus. The Employee also has to follow any lawful command of this superiors and in case of grievance opt for the legal or proper course of action.

The High Court held that the transfer was not on the basis of U.O. or D.O. note or as a [punishment. The transfer had actually been effected in administrative exigency and in the larger interest of the public.  It also cannot be inferred that some competent authority used their power irrationally, discriminately, or malafide. The High court observed that irrespective of the qualification of Respondent no. 4, the petitioner did not have a right function at DIET based on the above said circumstances.

The High Court concluded by holding, “Respondent no. 1 to 3 are directed to take appropriate action/decision with respect to posting/repatriation of respondent no.4, considering his eligibility for posting to the post against which he has been ordered to be transferred/posted.”

Click here for the Judgment.

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