Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh And Others on 4 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3582 of 2019.
.
Reserved on: 01.09.2020.
Decided on: 04.09.2020.
Rakesh Kumar ...Petitioner.
Versus
State of Himachal Pradesh and others ...Respondents.
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
1Whether approved for reporting? No For the Petitioner : Mr. Vinay Sharma, Advocate.
For the Respondents : Mr. Ashok Sharma, Advocate General with Mr. Ranjan Sharma, Mr. Vikas Rathore, Mr. Vinod Thakur, Mr. Desh Raj Thakur, Additional Advocate Generals, Ms. Seema Sharma, Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Deputy Advocate Generals, for respondents No. 1 to 3-State.
Mr. Neeraj Maniktala, Advocate, for respondent No. 4.
Tarlok Singh Chauhan, Judge Aggrieved by the order of transfer, the petitioner has filed the instant petition for grant of the following reliefs:
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 2 "i) Issue a writ of certiorari to quash Annexure P-1 i.e. impugned notification/ transfer order dated 15-11-2019.
ii) Issue a writ of mandamus directing the Respondent .
authorities not to implement Annexure P-1 i.e. impugned notification/ transfer order dated 15-11-2019.
iii) Issue a writ of mandamus directing the respondent authorities to allow the petitioner to continue at SDSCO, Palampur, District Kangra, H.P., till the completion of normal tenure."
2. It is contended by the petitioner that the order of transfer is not sustainable in the eyes of law as the same is based on a D.O. Note and that the transfer order has not been passed on account of any administrative exigency or public interest, but to accommodate private respondent No.4.
3. The official respondents have filed reply wherein it is averred that since the petitioner was holding a transferable post and it is the prerogative of the Employer to post and transfer any employee anywhere in the State for smooth running of the working, therefore, the petitioner has no right to assail the transfer order.
4. In the reply filed by respondent No.4, it is averred that the petition is not maintainable for non-joinder of one Shashi Bala, who has been transferred from SMS ZBNF Hamirpur to AASO Palampur vide the same order dated 15.11.2019. The transfer has been undertaken by the competent authority keeping in view the administrative exigency of service, as is clear from the order dated ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 3 04.01.2020, wherein it has been made clear that the transfer of the petitioner has not been made on the basis of the D.O. Note, but has .
been made after the matter was discussed by the Administrative Head of the Department with the Agriculture Minister, Himachal Pradesh.
5. We have heard the learned counsel for the parties and gone through the records of the case.
6. On 20.11.2019, this Court passed the following orders:
"CMP No. 13073 of 2019.
Allowed and disposed of.
CWP No. 3582 of 2019 & CMP No.13074 of 2019.
Notice. Mr. Hemanshu Mishra, learned Additional Advocate General appears and accepts service of notice on behalf of respondents No.1 to 3. Notice to respondent No.4 for 21 st December, 2019 on taking steps within three days. In view of the averments in the writ petition that the petitioner has been transferred on the basis of D.O. Note and also that the competent authority vide order Annexure P-5 dated 1.8.2019 had not recommended the transfer of the petitioner, after taking into consideration his previous record and as the petitioner thereafter has been transferred vide Annexure P-1 within three months of the issuance of the order Annexure P-5, the operation of the impugned order Annexure P-1, qua the petitioner, shall remain stayed. CMP No. 13075 of 2019.
The application, for the reasons stated therein, is allowed. Consequently, the applicant-petitioner, at this stage, is exempted from filing the typed/translated copies of the ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 4 documents, annexed to the writ petition. The same, however,be filed within four weeks. The application stands disposed of.
.
Copy Dasti."
7. However, after perusing the records, the Court thereafter on 04.01.2020 passed the following orders:
"Consequent upon the order passed on 21.12.2019, learned Deputy Advocate General has produced the record which reveal that the transfer of the petitioner is not on the basis of D.O. note. Note 17 in the record reveals that he has been transferred after the matter discussed by the Administrative Head of the Department with the Agriculture Minister, Himachal Pradesh. Let respondent to file reply within three weeks. List on 2nd March, 2020. The Interim order passed in this matter on the previous date is though vacated, however joining duties by the petitioner at the transferred station shall be subject to final outcome of the writ petition."
8. Now, that it is established on record that the transfer of the petitioner has not been made on the basis of the D.O. Note, then the scope of judicial review becomes extremely limited and would essentially have to be confined to whether the transfer has been effected in administrative exigency or in public interest or has been made only to accommodate respondent No.4. For this purpose, we called for the records of the case.
9. It would be noticed that earlier vide notification dated 12.07.2019 issued by respondent No.1, respondent No.4 had been ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 5 ordered to be transferred in place of the petitioner. However, later vide order dated 17.07.2019, this order was cancelled constraining .
respondent No.4 to approach the erstwhile Himachal Pradesh Administrative Tribunal by filing O.A. No. 3138 of 2019 titled 'Vivek Sood versus State of Himachal Pradesh and others'. This O.A. was disposed of vide order dated 22.07.2019 with a direction that respondent No.4 would make a detailed representation to respondent No.1, who in turn, after affording an opportunity of being heard to the parties would pass appropriate orders.
Thereafter, respondent No.4 preferred a representation before respondent No.1, but the same was rejected vide order dated 01.08.2019 on the basis of long stay of 21 years of respondent No.4 in and around Palampur.
10. Here, it shall be apt to refer to the relevant observations made in para-7 of the order which read as under:
"AND WHEREAS, after perusal of the record placed before me, it has been gathered that applicant Sh. Vivek Sood worked in and around Palampur since last 21 years and further posted as ASSO, Palampur in the month of April, 2019 on placement but he managed the posting as SDSCO, Palampur on 12.7.2019 whereas respondent No.4 Sh. Rakesh Kumar has remained posted in tribal at Reckong-Peo and far flung areas of Salooni in Chamba District and Sirmaur District. The respondent No.4 was posted as SDSCO, Palampur in April, 2018 and having short stay he was transferred and posted as ASSO, ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 6 Palampur by managing posting as SDSCO, Palampur by the applicant. Resultantly, the earlier posting of applicant and respondent No.4 i.e. as ASSO and SDSCO qua the .
status has been ordered vide this Department's Notification of even number dated 17.7.2019."
11. Now, in this background, the further question arises as to what necessitated the issuance of the notification dated 15.11.2019, especially qua the petitioner and 4 th respondent.
many as to Record reveals that initially there was a proposal to transfer as 20 Officers, but thereafter a proposal was mooted, discussed and approved that 4th respondent be posted as SDSCO, Palampur vice Shri Rakesh Kumar, who may further be posted as SMS, ZBNF, Hamirpur vice Smt. Shashi Bala, who may further be transferred to Palampur as ASSO vice this 4 th respondent. This clearly suggests that the transfer of the petitioner was not on account of any administrative exigency or public interest, but to accommodate respondent No.4.
12. In Black's Law Dictionary 'malafide' is said to be an intentional doing of a wrong act without just cause or excuse, it is done with an intention to inflict an injury or under such circumstances that the law will imply an evil motive to the act.
13. The Hon'ble Supreme Court has considered the question of malafide in case of transfer and the following principles ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 7 are laid down in the case of B. Varadha Rao vs. State of Karnataka & Others, AIR 1986 SC 1955:
.
"The Government is the best judge to decide how to distribute and utilize the services of its employees. 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 consideration or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as in fide. 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 than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
14. Similarly in the case of Mrs. Shilpi Bose and Others vs. State of Bihar & Others, AIR 1991 SC 532, it is observed by the Supreme Court as under:-
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 8 passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the .
department. If the courts continue to interfere with day-to- day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administrations which would not be conductive to public interest. The administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders".
15. Thereafter, in the case of Rajendra Roy vs. Union of India and another, AIR 1993 SC 1236, the principle is laid down in the following manner:-
"It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions."
16. Thus, on malafide, it can be said that the principal test of a due and proper exercise of the power is to ask the question:
Was the transfer made for real administrative exigency? In finding the answer the Court might have to pierce the veil of the transfer order and see what was the operative reason for the transfer. If the findings reveal a nexus with administrative necessity, the exercise of the power will be upheld. If however, the operative reason has no ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 9 such nexus then the transfer will be vulnerable. In the latter case it will be a malafide use of power and will take within its sweep all .
situations where the nexus and administrative exigencies is absent.
It needs to be emphasised that in the present context malafide is not limited to the personal malice of the authority making the transfer.
Malafide has two components i.e. malice in law and malice in fact.
17. 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.
18. In the instant case, the incumbency of the petitioner and private respondent No. 4 is as under:-
S/L Name Posting Stations
1 S/Sh. Rakesh Kumar As Agriculture
(Petitioner) Development Officers
1. Development Block,
Salooni (Chamba) w.e.f.
2000 to 2003.
2. Development Block,
Bhawarna (Kangra) w.e.f.
2003 to 2011
As Subject Matter
Specialist(SMS)
1. District Agriculture Officer,
Reckong -Peo w.e.f. 2012 to
2015.
2. Soil Testing Officer,
Dhaulakuan (Sirmaur) w.e.f.
2015 to 2017.
3. SDSCO, Palampur w.e.f.
4/2018 to 30.1.2020.
::: Downloaded on - 04/09/2020 20:20:30 :::HCHP
10
NOTE: The petitioner has
joined his duties as
Deputy Project Director,
.
ATMA, Hamirpur on
31.1.2020 where his
original transfer order
stands (Annexure 'A')
2 Vivek Sood (Private As Agriculture Extension
respondent No.4) Officer
1. Development Block,
Lambagaon (Kangra) w.e.f.
1998 to 2004.
2. Development Block,
Mahadev (Kangra) w.e.f.
2005 to 2008.
r As Agriculture
Development Officer
1. O/o ASSO, Palampur
w.e.f. 2009 to 2012.
2. Development Block,
Kangra w.e.f. 2013 to 2016.
3. O/o ASSO, Palampur
w.e.f. 2017-2018.
As Subject Matter
Specialist (SMS)
Since 4/2018 as on today.
19. It would be noticed that respondent No.4 is probably a blue-eyed boy of the respondents and that is why despite holding a State cadre post has managed to remain in District Kangra throughout his career right from the year 1998 till date.
20. 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 ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 11 conduct itself with high probity and expected condour 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.
21. 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.
22. It was observed by Wades Administrative Laws, 5th Edition at page 347 that "The first requirement is the recognition that all powers have legal limits, the next requirement, no less vital, is that the Court should draw this limit in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Parliament consistently confers upon public authorities powers which on their face seem absolute and arbitrary.
But arbitrary power and unfettered discretion are what the Courts ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 12 refuse to countenance. They have woven a net-work of restrictive principles which require statutory powers to be reasonable and in .
good faith and in accordance with the spirit and letter of the empowering Act." At page 359, it was also observed that "Discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That amounts at least to this that the statutory body must be guided by relevant consideration and not irrelevant. If its decision is influenced by extraneous consideration which ought not have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless, the decision will be set-aside."
23. Here, it shall be apposite to make a reference to the judgment of the Hon'ble 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.
24. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to an ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 13 equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, .
corporate statutory or instrumentality under Article 12 must act fairly and reasonably. Right to fair treatment is an essential inbuilt of natural justice.
25. As observed above, 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.
26. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16 of the Constitution. It also means that the State should not exploit its employees nor should it seek to take advantage of their helplessness and misery. As is often said, the State must be a 'model employer'.
27. In conclusion, we find the transfer order to be malafide as it has been made in order to adjust 4th respondent without any reasonable basis.
28. In view of our findings regarding the transfer of the petitioner being malafide, the plea regarding non-joinder of Shashi Bala is not at all sustainable, as it was at the instance of 4 th respondent that the transfer had been effected. If at all, Shashi Bala ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP 14 is aggrieved, she is at liberty to approach the competent authority for redressal of the grievances, but 4 th respondent cannot take any .
advantage of this fact.
29. In view of the aforesaid discussion, we find merit in this writ petition and the same is accordingly allowed. The transfer of the petitioner effected vide impugned notification/transfer order dated 15.11.2019 (Annexure P-1) is quashed and set aside.
30. Since, 4th respondent has not served anywhere outside his District, whereas, the petitioner served in as many as four Districts being Chamba, Kinnaur, Sirmaur and Kangra, the respondents are directed to transfer and post 4th respondent outside his District and preferably in a Tribal Area and ensure that he completes his normal tenure of service in the said area.
31. The writ petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application (s), if any, also stand disposed of.
32. Record is ordered to be returned.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 4th September, 2020. Judge (krt) ::: Downloaded on - 04/09/2020 20:20:30 :::HCHP