HP Disapproves Of Employees Managing Posting In And Around Urban Areas And Asks State To Break The Cartel

In a well-reasoned, well-analysed, well-balanced and well-articulated judgment, a two Judge Bench of the Himachal Pradesh High Court comprising of Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua in Sheela Suryavanshi v. State of H.P. & Ors. in CWP No. 511 of 2020 delivered just recently on August 26, 2020 has clearly and convincingly disapproved of employees managing posting in and around urban areas and asked the State to break the cartel! It observed that if the employee has been transferred in order to adjust particular persons with no reasonable basis, then such type of transfers can be termed as “mala fide one” and would, normally be liable to be quashed. Very rightly so!

To start with, this notable judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Jyotsna Rewal Dua starts by first and foremost observing in para 1 that, “The petitioner is a Lecturer (English), who joined Government Senior Secondary School, Sanjauli, on 16.08.2017 and was thereafter ordered to be transferred vice private respondent vide order dated 23.01.2020 and aggrieved thereby has filed the instant petition for the grant of following substantive relief:-

(i)                         That the impugned transfer order dated 23.01.2020 (Annexure P-1) may kindly be quashed and set aside.”

To be sure, the Bench then points out in para 2 that, “It is argued by Shri Ram Murti Bisht, learned Advocate, for the petitioner, that the order of transfer is not sustainable, as it has been passed on extraneous consideration and with malafide intention to simply adjust private respondent No. 3, who at her own request had been posted at GSSS, Theog in July, 2019 and after short stay of six month, on 01.01.2020, on the basis of D.O. note No. 199274, got herself transferred back to GSSS, Sanjauli dislodging the petitioner.”

To say the least, the Bench then expounds in para 10 that, “It may be stated here that if the transfers are made in order to adjust particular persons with no reasonable basis, such type of transfers can be termed as malafide one and would normally be liable to be quashed.”

No wonder, it is then rightly noted in para 11 that, “On the basis of the aforesaid exposition of law, it can conveniently be held that transfer in the instant case has not been made on administrative exigency but to adjust and accommodate respondent No. 3.”

Briefly stated, what para 12 brings out primarily is that record revealed that it was respondent No. 3, who vide letter dated 06.01.2020, addressed to the Education Minister, requested for her transfer on medical grounds. In the letter, the respondent No. 3 points out that presently I am working as PGT (English) in Govt. Girls Sr. Secondary School, Theog Distt. Shimla (HP) from July, 2019. She also points out that I am suffering from Paralytic problems (brain strokes in Dec. 2018) and since then under treatment in IGMC Shimla and it is very difficult to commute between Theog & Shimla daily due to my problem. She then urges in her letter to transfer her on medical grounds from Govt. Girls Sr. Secondary School Theog to Govt. Sr. Secondary School Sanjauli vice Smt. Sheela Suryavanshi, PGT (English) and condone her short stay at GSSS Theog.

More revealingly, it is then brought out in para 13 that, “The medical prescription slip annexed with this application, in fact, is an OPD slip in which it was only mentioned that this is a case of post circulation stroke and the B.P. of the petitioner has been recorded alongwith the details of the medicines. Even after that respondent No. 3 procured another D.O. note on the basis of which she got herself transferred to GSSS Sanjauli.”

Needless to say, it is then made clear in para 14 that, “No doubt, respondent No. 3 was entitled to set forth her grievance including the medical problems to her higher authorities and seek transfer and it was for the authorities, in turn, to accede or not to such request, but under no circumstances, respondent No. 3 could have exercised external influence to have transfer effected.”

Truly speaking, it is then also conceded while pointing out in para 15 that, “Now, the further question is whether request made by respondent No. 3 in the aforesaid letter was genuine and bonafide. We really do not think so.”

To put things in perspective, it is then brought out in para 16 that, “The record reveals that even though respondent No. 3 did suffer a paralytic (brain stroke) in 2018, but then it was on her request that she subsequently came to be transferred on mutual basis to GSSS Theog, where she remained posted from July, 2019 till the passing of the impugned transfer order. The request for transfer on mutual basis was probably made to take advantage under the policy of the transfer.”

While citing the relevant case law, it is then pointed out in para 17 that, “In Rajendra Roy vs Union of India and Anr. 1993 SC 1236, the Apex Court held that “It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down.”

Be it noted, it is then observed in para 18 that, “Off late, this Court has seen a surge in litigation relating to transfer. The State Of Himachal unlike other States is not evenly or uniformly developed in matters of basic infrastructure like education, health services etc. It is for this reason and rightly so that every employee tries to make an endeavour to seek posting in the district or tehsil headquarters where the infrastructure is relatively well developed. This we observe on the basis of the statistics relating to Shimla alone, where floating population is equal to permanent population. Most of these migration in urban areas is directly related with education of children and thereafter it could be for other purposes like better health facilities etc.”

Not stopping here, the Bench then also does not shy away from pointing in para 19 that, “We further notice that because of cartel created by few of the employees serving in the urban and semi urban areas of Himachal Pradesh, the influential employees manage to secure their postings in and around urban areas, leaving practically no room for the other employees.”

To be brutally honest, the Bench then also concedes in para 20 that, “The instant case is one such classical example, which reflects the modus operandi being resorted to by these teachers on completion of their tenure by seeking mutual transfer or creating artificial vacancies and thereafter getting each one adjusted in such vacancies.”

While taking into account the current situation, it is then enunciated in para 21 that, “It cannot be ignored that not only the State or Country but the whole world is in the grip of pandemic COVID-19, because of which students cannot be taught physically in the class rooms and are being taught through online classes.”

Practically speaking, the Bench then also makes it amply clear in para 22 that, “In such circumstances, the respondents are not only duty bound but are mandated by law to ensure that no monopoly in the matter of transfers is created in favour of selected fews but an endeavour has to be made to accommodate maximum number of teachers whose children are appearing for the board examination or examination for professional courses. These students can only study and attend classes online if there is adequate and desired band-width. Even otherwise the facilities of tuition and coaching classes on online are mainly available in these places i.e. the district and tehsil headquarters, therefore, also the State is required to adopt a fair and transparent policy of transfer by calling for the details of all the teachers whose children are to appear in the Board exam or examination for professional courses like MBBS, AIEEE etc. This would not only bring about an end to the monopoly created in favour of few teachers but would also ensure benefit to the student community as a whole.”

While giving the right and remarkable advice, the Bench then opines in para 23 that, “The Central Government, State Governments and likewise all public sector undertakings are expected to function like a ‘model employer’. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has obligation to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.”

While continuing in the same vein, the Bench then holds in para 24 that, “The action of the State must be reasonable, fair, just and transparent and not arbitrary, fanciful or unjust. The right of fair treatment is an essential ingredient of justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively, judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom, than of man’s other inventions. Absolute discretion marks the beginning of the end of the liberty.”

While citing the relevant case law, it is then pointed out in para 26 that, “Here it shall be apposite to make a reference to the judgment of the Honble Supreme Court in New India Public School vs. Huda (1996) 5 SCC 510, wherein it was observed that when public authority discharges its public duty, it has to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary and the same cannot be acted at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration.”

 

More significantly, it is then held in para 31 that, “It is not in dispute that the petitioner as also the third respondent hold a State Cadre Post, yet the petitioner has not been posted outside the district and has rather served in and around Shimla within a radius of 35 kms, in her entire service career.”

No less significant is what is then stated in para 32 that, “The case of respondent No. 3 is also not different, as she except for a brief period from 01.09.2010 to 03.04.2012 when she was posted at GSSS, Bisha (Solan), has also remained posted in and around Shimla and have served within a radius of 47 kms out of which 90% of the commutation is on the main National Highways.”

Truth be told, it is then conceded in para 33 that, “Obviously, these postings both in the case of the petitioner as also respondent No. 3 could not have been possible without the active support of the official respondents.”

To put it succinctly, the Bench then candidly goes on to add in para 34 that, “As observed above, there has been a spike in cases relating to transfer and majority of these cases pertain to the respondents-department i.e. Education Department. It is for this precise reason that this Court in CWP No. 1978 of 2019, titled as Sunita Devi vs. State of H.P. & Ors. decided on 18.03.2020 has recommended the State Government to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”

Fittingly enough, the Bench then holds in para 35 that, “In conclusion, even though we find the transfer of the petitioner to be malafide as it has been made in order to adjust the third respondent with no reasonable basis, but that does not mean that the petitioner would be entitled to be retained at GSSS Sanjauli.”

No doubt, it is then rightly pointed out in para 36 that, “It is well known that, “Hard cases make bad law”.” Para 37 further too rightly points out that, “Robert CJ in Caperton vs. A.T. Massey held that extreme cases often test the bounds of established legal principles. There is a cost to yield to the desire to correct the extreme case, rather than adhering to the legal principal. The cost has been demonstrated so often that it is captured in a legal aphorism “Hard cases make bad law”.”

Without mincing any words, it is then pointed by the Bench in para 39 that, “Granting indulgence to any of the parties in this case would be causing manifest injustice to other teachers who are desirous of serving in Shimla and other district and tehsil headquarters but have failed mainly because of the cartel formed by the influential teachers like the parties in the instant case.”

What’s more, the Bench then adds further in para 40 that, “Even though the petitioner has made out a legal ground for quashing the impugned order, however, this Court is still not inclined to exercise discretion in her favour as “justice” is not on the side of the petitioner.”

To top it all, the Bench then holds in para 41 that, “In the given facts and circumstances of the case as discussed above, neither the petitioner nor the third respondent deserve to be posted in their home district.”

While continuing in the same vein, the Bench then further directs in para 42 that, “Accordingly, while disposing of the writ petition, we direct respondents no. 1 and 2 to transfer the petitioner as also respondent No. 3 outside their home district(s) within two weeks from today. The respondents while effecting the transfers shall bear in mind that the same should not amount to adjustment and should be a meaningful transfer.”

Finally and most significantly, it is then held in para 43 that, “Before parting, we hope and trust that the respondents would take all requisite steps to break the cartel and as far as possible ensure that maximum number of teachers, especially those whose children are to appear in the Board examination and examination for professional courses are afforded an opportunity to serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate band width facility of tuition etc. are available.”

In conclusion, the two Judge Bench of the Himachal Pradesh High Court has taken the right approach in dealing with such cases where influential teachers try to always get plum posting only. It has rightly refused to grant any relief to the petitioner. It also has rightly made it clear that the respondents (official authorities) are not only duty-bound but are mandated by law to ensure that no monopoly in the matters of transfers is created in favour of selected few.

Sanjeev Sirohi

Begging Before Someone To Stand As Surety Comes At Cost Of Pride, Accused Shall Be Allowed To Furnish Cash Deposits For Getting Bail: HP HC

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, the Himachal Pradesh High Court in Abhishek Kumar Singh vs. State of Himachal Pradesh in Cr.MP(M) No. 1017 of 2020 delivered on July 30, 2020 has made it absolutely clear that even accused has a right to live with dignity. It also made it very clear that begging or pestering before someone to stand as a surety comes at the cost of pride and so the Courts while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit. Very rightly so!

To start with, Justice Anoop Chitkara of Himachal Pradesh High Court who authored this latest, landmark and laudable judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, a permanent resident of West Bengal, who is under incarceration for more than six months for committing a white-collar crime, has come up before this Court, seeking regular bail.”

While elaborating on the FIR lodged, it is then pointed out in para 2 that, “Based on a complaint, the police arrested the petitioner on 10th January 2020, in FIR No. 68 of 2019, dated 25.08.2019, registered under Sections 420, 120-B of Indian Penal Code, 1860 (IPC), in Police Station Nirmand, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offences.”

In hindsight, it is then pointed out in para 3 that, “Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 23.3.2020, Ld. Additional Sessions Judge, Kinnaur at Rampur Bushehar, HP, dismissed the petition, primarily because the amount involved is enormous and there is possibility of tampering the evidence.”

For the sake of clarity, it is then pointed out in para 4 that, “I have read the status report(s) and heard counsel for the parties, as well as Ld. Amicus Curiae.”

More seriously, while dwelling on the facts of the case, it is then noted in para 5 that, “Briefly, the allegations against the petitioner are that he made phone calls from various numbers to the complainant, befooled him to share one-time passwords (OTPs) received by him, and subsequently withdrew Rs. 9,87,000/- from his bank accounts.” Also, while mentioning about his previous criminal history, it is then stated in para 6 that, “As per status report, the petitioner has a similar case registered against him.”

Be it noted, it is then observed in para 15 that, “While deciding bail, the Courts cannot discuss the evidence threadbare. The difference between the order of bail and a final verdict is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes.”

Interestingly enough, it is then laid bare in para 16 that, “The Police have recovered an amount of Rs. 78,000/- and after that, the accused is in judicial custody for the last more than six months.”

Crucially, it is then also made clear in para 17 that, “Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. The nature of the offence also does not restrict bail. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose.”

Needless to say, it is then enunciated in para 18 that, “Without commenting on the merits of the case, the fact that the investigation is almost complete and the accused is in jail for a considerable period, coupled with the on going situation due to the Covid-19 pandemic, would make out a case for bail.”

To be sure, it is then stipulated in para 19 that, “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.”

Quite ostensibly, it is then rightly observed in para 20 that, “Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”

While explaining the drawbacks of bonds and simultaneously dwelling on the benefits of monetary bail, it is then envisaged in para 24 that, “It is beyond cavil that the sole purpose of a bond is to ensure presence of accused to attend the trial. In rapidly changing times, people travel more, covering long distances. It exposes them to the risk of being arraigned as accused in locations far away from native places. With unique identity details, monetary bail is even better. It would also address the unethical system of unscrupulous stock sureties, throwing them out of questionable practices.”

It would be pertinent to note that it is then palpably made clear in para 25 that, “Even the Legislature was aware of the menace of stock sureties and with a view to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A CrPC, 1973 which read as follows:

441-A. Declaration by sureties. – Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.”

While applauding the legislature, it is then  brought out in para 26 that, “In its farsightedness, the legislature kept provision for the situations when an accused does not find any surety or none is ready to stand surety for him, by incorporating S. 445 of CrPC, 1973, which reads as under:

S. 445. Deposit instead of recognizance. – When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.”

While continuing in the same vein to further enhance the argument to do away with the sureties bond, it is then stated in para 27 that, “The world is passing through the 4th technological revolution, with future unfolding before us and entering the internet of things. The database of AADHAR, PAN, and Passports ensures individuals’ identity, obsoleting the identification through sureties.”

Going forward, it is then brought out in para 28 that, “Siddhant Maniktala, in his paper ‘Relevance of sureties in criminal jurisprudence when every person in India has an identity’, (Supremo Amicus, Volume 17), writes, Aadhaar may replace surety bond as a means of getting bail because his identity has been established and with the personal data secured with the UIDAI, it will not be difficult to track down the accused in case of his fleeing from justice. It seems much important and a much crucial reform to liberalise bail laws in India. After the introduction of Aadhar, solely generated by UIDAI, (Unique Identification Authority of India) which is a unique identification proof of an individual, the need of surety for granting bail becomes debatable.”

More crucially, it is then rightly underscored in para 29 that, “The right to life guaranteed by Article 21 of India’s Constitution includes the right to live with dignity. Begging or pestering before someone to stand as a surety, comes at the cost of pride.”

No doubt, it is then  rightly maintained in para 38 that, “The purpose of a cash bond is not to enrich the State’s coffers but to secure the accused’s presence. An Advocate is an officer of the Court and a vigilant watcher of the interest of her client. Owing allegiance to the Constitution of India and being a professional, it’s her onerous duty to apprise the accused of the existence of the provision of a cash deposit in the statute.”

Truth be told, it is then conceded in para 39 that, “We are already late in encouraging deposits in place of sureties. Cash surety improves the possibility of the accused’s attendance because she is aware that her money is safe and accruing interest on ED. It is further likely to motivate her not to default even once, in contrast to the handing over of cash to stock sureties, with hardly any assurance of its refund.”

Most crucially, it is then very rightly underscored in para 40 that, “Given the advent of online identification, the pragmatic approach is that while granting bail with sureties, the Court should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another, impliedly informing the accused of the existence of her right under S. 445 of Code of Criminal Procedure, 1973. Choosing between sureties and deposits, accused is the Queen and let her be.”

Equally significant if not more is what is then stated in para 43 that, “The Court has a formidable task of performing the tight rope locomotion by embarking on determination of the cash surety in consonance with the accused’s monetary status. It should not be such as to precipitate the misery on the poor accused and deprives her of personal liberty despite being admitted to bail.”

In conclusion, the long and short of this noteworthy judgment is that the surety system of securing bail comes at a great cost of pride of the accused who has to beg before someone to make him/her ready to stand as surety. A more feasible and far better option would be to allow accused to furnish cash deposits for securing bail! Also, it should be left on the accused as to what option he/she wants to exercise to secure bail! Very rightly so!

Sanjeev Sirohi