Himachal Pradesh High Court
Jal Shakti Vibhag vs State Of Tamil Nadu on 1 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 1st DAY OF September, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 4741/2020
BETWEEN:
DAWA SINGH,
S/O SH. TARA SINGH,
POSTED AS ASSISTANT ENGINEER IN
JAL SHAKTI VIBHAG, RECONGPEO,
DISTRICT KINNAUR, H.P. ....PETITIONER
(BY MR. SUNEET GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(JAL SHAKTI VIBHAG),
H.P. SECRETARIAT, SHIMLA171002 (HP).
2. ENGINEERINCHIEF,
JALSHAKTI VIBHAG,
JAL SHAKTI, BHAWAN,
SHIMLA5.
3. CHIEF ENGINEER (SOUTH),
JALSHAKTI VIBHAG,
JAL SHAKTI, BHAWAN,
SHIMLA5.
4. EXECUTIVE ENGINEER,
JALSHAKTI DIVISION,
RECKONG PEO,
DISTRICT KINNAUR, H.P.
5. SH. SUNIL KUMAR,
PARENTAGE IS KNOWN TO THE PETITIONER
PRESENTLY AS ASSISTANT ENGINEER,
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2
JAL SHAKTI SUB DIVISION,
RECKONG PEO, DISTRICT KINNAUR, H.P.
....RESPONDENTS
(BY SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA,
.
SR. ADDL. A.G., SH. VINOD THAKUR, SH. HEMANSHU
MISRA, SH. SHIV PAL MANHANS, ADDL. A.GS. AND SH.
BHUPINDER THAKUR, DY.A.G. FOR R1 TO R4)
___________________________________________________________________
This petition coming on for admission this day, Hon'ble
Mr. Justice Tarlok Singh Chauhan, passed the following:
ORDER
Aggrieved by the order of transfer, the petitioner has filed the instant petition for the grant of following substantive relief:
quash and set aside notification dated 21.10.2020 (Annexure P2).
2 The respondentsState have contested the petition by filing reply, but the same was not satisfactory and, therefore, this Court directed the respondentsState to file a supplementary affidavit explaining therein why the petitioner is being made rolling stone even though at the same station.
3 In compliance to the directions, the respondentsState have filed supplementary affidavit, which discloses a shocking state of affairs.
4 As regards the petitioner, he was appointed as Assistant Engineer on 29.4.2015 and posted at Jal Shakti, Sub ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 3 Division Akpa. On completion of normal tenure at Akpa, he was transferred to Jal Shakti, Sub Division Reckong Peo, at his request, on the basis of a U.O. letter, which obviously was .
preceded by D.O note. It is thereafter that the petitioner was transferred from Jal Shakti Sub Division, Reckong Peo to the office of Superintending Engineer, Jal Shakti Circle, Reckong Peo as Assistant Engineer (Design) against vacant post vide notification dated 12.7.2020. Later on, the petitioner, at his request, was again transferred from office of Superintending Engineer, Jal Shakti Circle, Reckong Peo as Assistant Engineer (Design) to Jal Shakti Sub Division Reckong Peo vice respondent No.5, Sunil Kumar on the basis of U.O. letter, vide notification dated 12.10.2020, however, the same was cancelled vide notification dated 21.10.2020 again on the basis of U.O. letter.
5 As regards respondent No.5, he was transferred from Jal Shakti Sub Division Keylong to Jal Shakti Sub Division Reckong Peo on the basis of U.O. letter, vide notification dated 3.9.2020, which, like in the petitioner's case, was preceded by a D.O. note.
6 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 - 31/01/2022 22:59:29 :::CIS 4 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.
7 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 official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 5 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.
8 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 and 16 of the Constitution otherwise the same will be treated as arbitrary.
9 Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 6 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.
10 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 Association ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 7 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;
r to 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 - 31/01/2022 22:59:29 :::CIS 86. 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 midacademic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
11 Bearing in mind the aforesaid exposition of law, once the facts of the case are adverted to, it would be noticed that the petitioner as also respondent No.5 have been continuously managing their transfer(s) by approaching the politicians, rather than approaching their employer(s).
13. The Courts are reluctant to interfere with the orders of transfer since this is an ordinary incidence of service, yet this Court has repeatedly held that the transfers and postings should be effected only by the administrative departments.
::: Downloaded on - 31/01/2022 22:59:29 :::CIS 914 In this country, we follow the British system of a non political bureaucracy and hence, it is for the bureaucrats, and not for the politicians, to effect transfers and postings.
.
15 The treatise on the subject is the judgment rendered by learned Division Bench of this Court in Amir Chand versus State of Himachal Pradesh, 2013(2) HLR (DB) 648, wherein this Court prefaced the judgment with the following observations: "1. This Court is flooded with litigation filed by employees aggrieved by their transfer and sometimes, even by their non transfer when they are not shifted out of tribal areas. The time has come when we must lay down the law with regard to the powers of the legislators to influence transfers. Should political pressure and political influence be necessary to run the administration? Should transfers be ordered on the asking of the legislators, members of a particular ruling party, persons belonging to certain groups without even making a reference to the administrative department concerned? Is the policy of transfer always binding upon the Government and its employees or can the Government flout with impunity the policy framed by it? No doubt, the employer is the master and can decide which employee is to be posted at which particular place, but we must remember that we are governed by the Constitution of India. Does not each and every employee have a right to claim that he should be treated fairly? Why is it that favoured employees, who are either well connected or can exercise political or bureaucratic clout are never transferred out of the main cities and those employees who do not enjoy such political or bureaucratic patronage have to stay in remote/tribal areas for years on end.
::: Downloaded on - 31/01/2022 22:59:29 :::CIS 102. Another disturbing feature which we have found is that in the State of Himachal Pradesh after the period earmarked for normal transfers is over, the transfers have to be ordered only after approval of the competent authority which normally is the .
Hon'ble Chief Minister. We have found that people directly approach the Hon'ble Chief Minister using political influence and patronage without first making a representation to the department concerned. This is a total violation of the Conduct Rules. Despite this violation of the Conduct Rules, these requests of the employees who are backed by political patronage are accepted without even considering what will be the effect of such transfers on the people who are to be served by these employees, or on those employees who may be affected by such transfers.
3. Does anybody care about the students who are studying in the schools? If no teacher is willing to go to the rural/remote areas, where will the students of these rural and remote areas study? Does anybody care in some remote areas, dispensaries are without Doctors or paramedical staff whereas there is more than the sanctioned number of doctors in the State and District headquarters. It was only after the intervention of the Court that the Female Health Workers, who were to serve in the rural areas, were actually transferred there. Almost all the Female Health Workers had been adjusted in Shimla town itself. This shows that neither the interest of the public at large nor that of the administration was kept in view while adjusting these Female Health Workers at Shimla. When the employees want a job then they are willing to join at any place. However, soon thereafter, political patronage is employed to get themselves transferred to a particular place. There is more than sufficient material before the Courts to prove that transfers are made for extraneous reasons without considering the administrative exigencies and the interests of the students.
4. This does not speak well of the system of the administration.
We are clearly of the view that normally we would not like to ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 11 interfere in transfer orders passed in administrative interests. We are also of the considered view that all the employees, such as teachers, doctors, nurses etc., will necessarily have to be posted in rural/remote area at some stage in their careers.
.
The administration has to be stern and strict in matters of transfers. At the same time, it also has to be fair and just and should treat all the employees equally. It is only because the administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses its decisions day in and day out, that the courts are forced to intervene. These types of cases clearly highlight the fact that transfers are being made not on the basis of administrative exigencies but on other extraneous considerations.
5. Rule 20 of the Central Civil Services (Conduct) Rules, 1964 lays down that it will be misconduct for an employee to bring in political pressure or get recommendations from others in matters relating to his service. It seems that both, the administration as well as the employees, have forgotten that such a rule exits. Our experience is that unless an employee gets a "suitable recommendation" or brings in political pressure, he can never get posted to a station of his choice. If action is taken against the employee for breach of the Conduct Rules, the employee could very well say that he is damned if he does not use political pressure and damned if he does.
6. It would be apposite to quote a humorous poem from Shri A.S Bhatnagar's Commentary on Conduct Rules. 'Ban on recommendation', a humorous poem Who am I? A victim to the jealousies of those Who, to me have been quite close, Suspended from work And, for no fault of mine. Oh Justice, what a heavy fine ! I am expected not to seek Help from one mighty or weak. They name it pressure or canvassing, A fruit from the Forbidden Tree. Which to touch none is free. Is this bar justified, When there are cases multiplied, Where in favours have been done, And ends foul have been badly won?"
::: Downloaded on - 31/01/2022 22:59:29 :::CIS 1216. It was further observed that there can be no manner of doubt that a legislator, who is the elected representative of the people, has a right to place his difficulties before the Hon'ble .
Chief Minister or the Minister concerned. It would be well within his rights to complain to the authorities concerned in case he finds that a particular employee is not doing his job properly. The Court further went to observe that transfer is never meant to be a punishment but nobody can deny the fact that many times incompetent and inconvenient officials are transferred.
17. The Court thereafter, while discussing the judgments of the various High Courts including the one referred to above, observed as under: "33. From the files which this Court has seen including the files of these cases, it is apparent that transfers are being made day in and day out at the behest of public representatives. It is true that public representatives have a right to complain against the working of government officials. However, these complaints must be verified by the administrative department and final action has to be taken by the administrative department. Transfer is not a punishment and if transfer is inflicted as a means of punishment, then the whole purpose of making transfers in the public interest is set at naught. An employee who is rude or inefficient at one station will not become polite or efficient at another station. Transfer does not serve any purpose. If the allegations of the public representatives made in the complaints against the government servants are found to be correct, then disciplinary action should be taken against such government employees. We live in a democracy and our elected representatives under the constitution are to work in ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 13 the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. This has already resulted in government servants rushing to please the political masters at the cost of doing their .
duties. This also demoralizes the officers who are in charge of the administration of the department. It is they who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of administrators. The earlier such inherently illegal and improper practices are put to an end, the better it would be for the smooth functioning of the administration of the State.
34. As far as the concept of judicial review is concerned, the Apex Court again observed that the Court should be reluctant in interfering in transfer orders. The scope of judicial review in the matter of transfer of a Government employee is limited and the Court should not interfere in the transfer. The Court cannot substitute its own opinion for the opinion of the employee.
35. After reviewing the entire law on the subject, we can without any hesitation come to the conclusion that the scope of judicial review in transfer matters is very limited. This court cannot interfere in the day to day functioning of the Government departments and it is for the administrative heads to decide which employee should be posted at which place. Even earlier, we had clearly given a number of judgments on these lines.
36. At the same time, this Court cannot shut its eyes to the increasing number of transfers being made not for administrative reasons but only with a view to accommodate favoured employees. As indicated by us earlier, an employee of the department is also a citizen of the country and is entitled to the equal protection of laws. Therefore, the State should always be fair to its employees. They must all be treated equally."::: Downloaded on - 31/01/2022 22:59:29 :::CIS 14
18. It is then that the following directions came to be passed: "1. The State must amend its transfer policy and categorize all the .
stations in the State under different categories. At present, there are only two categories, i.e. tribal/ hard areas and other areas. We have increasingly found that people who are sent to the hard/ tribal areas find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C, D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A and the lowest category will be of the must difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in Category A.
2. After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every employee serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted from category A to any of the other three categories, but should not ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 15 be again transferred to category A station. If after category A he is transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope for adjusting the favourites and all .
employees will be treated equally and there will be no heart burning between the employees.
3. We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but whenever such exception is made, a reasoned order must be passed why policy is not being followed.
4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred.
5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.
6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minster or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative department.
::: Downloaded on - 31/01/2022 22:59:29 :::CIS 167. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case .
they want to complain about the functioning of the employees then the complaint must be made to the Minister In charge and/ or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers."
19. As held by this Court in Amir Chand's case (supra), we live in a democracy and our elected representatives under the Constitution are to work in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. It is they (Administrative Heads) who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of administration.
20 It is unfortunate that cases are coming up repeatedly before this Court, in which the impugned transfer orders or transfer cancellation orders unabashedly and brazenly state that the transfer order or transfer cancellation is being done by or at the instance of persons, who have no role, position or authority in the administration of the department.
::: Downloaded on - 31/01/2022 22:59:29 :::CIS 1721 The result of such political interference in the matter of transfers and postings of government servants is that the government servants get demoralized and they become affiliated .
to some political party or politician, which is wholly destructive of all norms of administration.
36. It is a well known adage that "Hard cases make bad law".
37. 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."
38. A Writ of Certiorari neither in England nor in India issues as a matter of course. In A. M. Allison vs. B. L. Sen (S) AIR 1957 SC 227, it was observed as under: "Proceedings by way of certiorari are 'not of course'. (Vide Halsbury's 'Laws of England', Hailsham Edition, Vol. 9, paras 1480 and 1481 pp. 877878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice......"
12 Judged in the background of factual matrix, we are of the considered view that granting indulgence to any of the parties in this case would be promoting political patronage and ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 18 detrimental to the administration and working of the department as there is spike in cases relating to transfers and the dockets of this Court are otherwise overflowing with such cases.
.
13 In the given facts and circumstances of the case, as discussed above, neither the petitioner nor respondent No.5 deserve to be posted at their home districts.
14 Accordingly, while disposing of the instant petition, we direct the official respondents to transfer the petitioner as also respondent No.5 outside their home districts. The petitioner is directed to be transferred to office of Executive Engineer, Chamba Division (Design) and respondent No.5 is directed to be transferred to the office of Executive Engineer Salooni Division (Design), as suggested by the official respondents. After doing so, the official respondents shall ensure that both these employees complete their tenure, at least of three years, on the said stations. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) 1.9.2021 Judge (pankaj) ::: Downloaded on - 31/01/2022 22:59:29 :::CIS