Himachal Pradesh High Court
Shugal Singh vs State Of H.P. And Ors on 24 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2677/2020 Reserved on: 22.9.2020 Decided on : 24.9.2020 .
Shugal Singh .....Petitioner
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No
For the Petitioner:
r Mr. Naveen Awasthi, Advocate.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr.
Vikas Rathore, Mr. Vinod Thakur,
Mr. Shiv Pal Manhas, Addl.A.Gs.,
Ms. Seema Sharma, Mr. Bhupinder
Thakur and Mr. Yudhvir Singh
Thakur, Dy.A.Gs for respondents
State,
Mr. Vikas Rajput, Advocate, for
respondent No.2.
(Through Video Conferencing)
_____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge Aggrieved by the order of transfer, dated 6.7.2020, whereby the petitioner has been transferred from Pathankot Unit to Nerwa Unit, he has preferred the instant petition for grant of following substantive reliefs:
1Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 25/09/2020 20:18:33 :::HCHP
...2...
"i. That appropriate writ order or direction may be issued and impugned order(s) dated 6.7.2020 vide Annexure P2, .
issued by the respondents may kindly be quashed and set aside.
ii. That respondent may be directed to suitably adjusted to nearby place."
2 The only ground raised by the petitioner to assail his transfer is that the same is neither in public interest nor in administrative exigency, but has been ordered accommodate respondent No.3 and the same is clearly evident in order to from D.O. Note No. 274797, dated 3.7.2020 given by a political person (Local MLA), who has no concern with functioning of respondentCorporation. On the other hand, Mr. Vikas Rajput, learned counsel for respondentCorporation would claim that no doubt, there was a D.O. note in favour of respondent No.3, but the same was not acted upon while ordering transfer of the petitioner.
3 We have heard learned counsel for the parties and have also gone through the records of the case.
4 It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...3...
transfer subject of course to certain disciplines. Once it is .
admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to "proper place". It is for the administration to take appropriate decision.
5 Even the administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/ servant to any place in public interest and as is found necessitated by exigencies of service as long as the ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...4...
official status is not affected adversely and there is no infraction .
of any career prospects such as seniority, scale of pay and secured emoluments. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees.
6 However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...5...
and 16 of the Constitution otherwise the same will be treated as .
arbitrary.
7 Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.
8 The law regarding interference by Court in transfer/posting of an employee, as observed above, is well settled and came up before the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3; B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131;
Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH.
Bhattacharjee and others, (1995) 2 SCC 532; State of M.P. ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...6...
and another vs. S.S. Kourav and others, (1995) 3 SCC 270;
.
Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574; Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104; Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245; State of U.P. vs. Siya Ram, (2004) 7 SCC 405; State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402; Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299; Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592;
Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304; Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178; and State of Haryana and others vs. Kashmir Singh and another,(2010) 13 SCC 306 and the conclusion may be summarised as under: ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...7...
1. Transfer is a condition of service.
2. It does not adversely affect the status or emoluments .
or seniority of the employee.
3. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
4. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
5. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.
6. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
8. The person against whom allegations of malafide is made should be impleaded as a party by name.
9. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
10. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...8...
members and children, as consideration of these views fall within the exclusive domain of the employer.
.
11. If the transfer order is made in midacademic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
9 Bearing in mind the aforesaid exposition of law, the moot question is whether the transfer of the petitioner has been effected on the basis of a D.O. note or in the public interest and administrative exigency.
10 In order to reach at a definite conclusion, we summoned the original records of the transfer and find that no doubt, respondent No.3 had procured a D.O. note, but that was for seeking his own transfer and not for the transfer of the petitioner and notably even the D.O. note was not given effect to.
11 As a matter of fact, it was noticed that since 2018 after transfer of Devinder Kumar Narang, Manager (Technical) from Nerwa Unit to Kullu Unit, no Regional Manager was posted there and, therefore, in order to bring about efficiency in smooth operation of buses at Nerwa, one Regional Manager/Works Manager was purposed to be posted at Nerwa Unit. The file was processed on these lines and it was purposed to transfer the petitioner, Works Manager, who was working as Regional ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...9...
Manager, Pathankot Unit, to Nerwa Unit in public interest and the .
charge of Pathankot Unit should be handed over to respondent No.3.
12 This proposal was approved by the respondents at the highest level in order to bring about efficiency of the Corporation and also in public interest. However, it appears that the petitioner preferred a representation requesting therein that he has served three and half years r in tribal areas of Reckongpeo, two years at Palampur and six years at Chamba; his children are studying in 10+1 and 10+2 and; he has his aged mother of about 90 years, who is presently living with him and needs frequent medical assistance; therefore, he be not transferred. The representation was considered by the respondentsDepartment and it was found that since there was only 8 Works Manager, therefore, it was not possible to accede to the request of the petitioner and accordingly the representation was rejected.
13 Now, in this background it is extremely difficult to conclude that the transfer of the petitioner has been effected on the basis of D.O. note or is mala fide and for extraneous considerations, rather records go to show that the transfer of the ::: Downloaded on - 25/09/2020 20:18:33 :::HCHP ...10...
petitioner has been ordered in exigency of service and in larger .
public interest.
14 In view of aforesaid discussions, we find no merit in the writ petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
r to (Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
24.9.2020 Judge
(pankaj)
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