Himachal Pradesh High Court
Amir Chand vs State Of H.P And Another on 24 September, 2020
Author: Jyotsna Rewal Dua
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2747 of 2020
Reserved on : 21.09.2020
Date of decision: 24.09.2020
.
Amir Chand ...Petitioner
Versus
State of H.P and another ...Respondents
______________________________________________________
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioners: Mr. Kulbhushan Khajuria, Advocate
For the Respondents: Mr. Ashok Sharma, Advocate General,
with Mr. Vinod Thakur, Mr. Vikas
RAthore, Mr. Shiv Pal Manhas,
Additional Advocate Generals, Mr.
Bhupinder Thakur, Ms.Seema Sharma
and Mr. Yudhbir Singh Thakur, Deputy
Advocate Generals, for the State.
Jyotsna Rewal Dua,J.
Petitioner takes exception to his transfer to the office of Divisional Forest Officer, Kullu, on Special Duty, effected vide order dated 23.07.2020.
2. Petitioner is a Deputy Ranger with the respondent-
Forest Department. On 07.03.2019, he was ordered to be transferred from Thaila Block, Hurla Range of Parvati Forest 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 2Division to Kasol Block, Kasol Range of Parvati Forest Division.
The transfer was to take effect from 30.04.2019 on retirement of the existing incumbent.
.
3. On 23.07.2020, petitioner was ordered to be transferred from Kasol Block, Kasol Range of Parvati Forest Division to the office of District Forest Officer, Kullu. Petitioner has challenged this transfer order on the grounds that the order has been issued merely on the basis of a U.O. Note and is, therefore, liable to be quashed in view of principle expounded in 2013 (3) Shim. L.C. 1373 titled as Sanjay Kumar Vs. State of Himachal Pradesh and others ; the transfer order has not been issued either in public interest or in administrative exigency, but only to harass him for extraneous considerations ; petitioner has not as yet completed his normal tenure of three years at his present place of posting at Kasol Block, therefore, the impugned transfer order has also been issued contrary to the applicable transfer policy.
4. Respondents have placed on record the written instructions imparted to the learned Additional Advocate General to the effect that vide impugned order, the petitioner was transferred to the Divisional Forest Office (in short D.F.O.), Kullu on Special Duty after the prior approval of the Competent Authority. Short stay has been condoned and ban on transfers has ::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 3 also been relaxed by the Competent Authority. As per Clause 12.1 of the Transfer Policy, no Government employee can claim his transfer or posting as a matter of right. It is the discretion of the .
State Government, the employer, to post/transfer any employee anywhere in the State considering the administrative exigencies/convenience. The petitioner was transferred and posted in the office of D.F.O., Kullu in accordance with law as per the policy guidelines.
5. This Court in CWP No. 1924 of 2020, titled as John Gupta Vs. State of H.P. and others, decided on 22.07.2020, while dealing with the issue of transfer on the recommendation of Member of Legislative Assembly, held as under :-
"13. Further, the transfer of the petitioner on the recommendation of the MLA in the given facts and circumstances by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case.
This was so held by the Hon'ble Supreme Court in Mohd. Masood Ahmad vs. State of U.P. and others (2007) 8 SCC 150, wherein it was observed as under :-
"8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter affidavit filed on behalf of respondent Nos. 1 & 2 that the appellant has been transferred due to complaints against him. In our ::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 4 opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State government is certainly within its .
jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts & circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order."
14. Though a recommendation by a peoples representative requesting for a particular course of action in the realm of administrative functioning may not per se constitute an unauthorized or unwarranted interference or cause vitiation provided the consequential steps are taken by the authority of administration alone, the nature of action then to be drawn by the administrative department would be contingent on the attending facts. It is only when the contextual facts demonstrate servile subjugation of an administrative authority to the dictates of an outside entity in power by meekly abdicating his dominion, the resultant order or decision would be impeachable as antithetical to the foundational precepts of governmental functioning. The facts and circumstances of each case will, therefore, have to be evaluated."
6. We have also perused the record related to transfer of the petitioner, which reveals that the proposal of transfer of the petitioner emanated from the office of Hon'ble Forest Minister on 09.07.2020. The Administrative Department examined the proposal and returned the same with their own recommendations on 13.07.2020. The recommendations of the Administrative Department were accepted by the Hon'ble Forest Minister on 17.07.2020. The Administrative Department thereafter prepared the complete proposal for transfer of the petitioner to the office of D.F.O. Kullu, on Special Duty, on 23.07.2020 in condonation of short stay and in relaxation of ban on transfers. The record also shows that the matter of transfer of the petitioner as per the ::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 5 proposal put forth by the Administrative Department was also discussed by the Hon'ble Forest Minister with the Competent Authority Hon'ble Chief Minister. The proposal of transfer of the .
petitioner to the office of D.F.O., Kullu, on Special Duty, in condonation of short stay and in relaxation of ban on transfers was discussed as per Note 3 of the file by the Hon'ble Forest Minister with the Hon'ble Chief Minister, who approved the same. It is in this background that the petitioner was transferred vide impugned Duty.
r to order dated 23.07.2020 to the office of D.F.O. Kullu on Special
7. The contention of learned counsel for the petitioner that the impugned transfer order was issued merely on the basis of U.O. Note and on extraneous consideration is unfounded. The record shows that the original proposal of Hon'ble Forest Minister for transfer of the petitioner was examined by the Administrative Department and was not approved. The Administrative Department applied its independent mind and sent its own proposal for acceptance to the Hon'ble Forest Minister. The proposal was accepted by the Hon'ble Forest Minister and thereafter it was also approved by the Competent Authority i.e. the Hon'ble Chief Minister in condonation of short stay and relaxation of ban on transfers. The law regarding interference by the Court in ::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 6 transfer/posting of the employee was expounded by this Court in CWP No. 2225 of 2020, titled as Puran Chand Vs. State of H.P. and others, relevant paragraph whereof is reproduced .
hereinafter :-
"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. 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 ::: Downloaded on - 23/09/2020 15:18:46 :::CISHigh Court of H.P. 6 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:-
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.::: Downloaded on - 24/09/2020 20:20:05 :::HCHP 7
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 members and children, as consideration of these views fall within the exclusive domain of the employer.
11. If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance."
Impugned transfer of the petitioner does not suffer from any illegality.
For the foregoing reasons, we find no merit in this writ petition and the same is accordingly dismissed. The pending applications, if any, also stand disposed of.
( Tarlok Singh Chauhan ),
Judge
24th September, 2020(K) ( Jyotsna Rewal Dua),
Judge
::: Downloaded on - 24/09/2020 20:20:05 :::HCHP
8
.
::: Downloaded on - 24/09/2020 20:20:05 :::HCHP