Himachal Pradesh High Court
Kanchan vs State Of H.P. & Ors on 15 July, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1915 of 2020
.
Decided on: 15.07.2020
Kanchan ...Petitioner
Versus
State of H.P. & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
1 No.
Whether approved for reporting?
For the Petitioner : Mr. Anil Kumar God, Advocate.
For the Respondents : Mr. Ashok Sharma, Advocate General with
Mr. Ranjan Sharma, Mr. Vinod Thakur,
Addl. A.G and Mr. Desh Raj Thakur, Addl.
A.Gs. for respondents No. 1 to 3.
Mr. Bhupinder Pathania, Advocate, for
respondent No. 4.
Tarlok Singh Chauhan, Judge (Oral)
The petitioner is a Lecturer (School-New) English and vide impugned transfer order dated 02.01.2020 has been ordered to be transferred from GSS Dhol-Ka-Jubber (SLN) to GSS Panwa (SMR), District Sirmaur. Aggrieved by the impugned transfer order, the petitioner has filed the instant petition.
2. 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 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 2 paramount consideration, it has unfettered powers to effect 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.
3. 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 secured emoluments.
::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 3Even 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.
4. 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.
5. 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 ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 4 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.
6. 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 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 ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 5 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.
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.::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 6
7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
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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.
7. It is the pleaded case of the petitioner that she is at the same station i.e. GSS Dhol-Ka-Jubber (SLN) since 2016 and has assailed the transfer order mainly on two grounds. Firstly, the transfer order of the petitioner has not been issued in administrative exigency or public interest, but has been issued pursuant to D.O. note and; secondly that the petitioner is handicap to the extent of 45% and the school to which she has been transferred is situated in hill terrain, that too, at a distance of more than 1.5 kms from the road.
::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 78. Even though respondents No. 1 to 3 have not filed reply, however, on the basis of the instructions, it is submitted that .
the petitioner was long over-due for transfer and has, therefore, rightly been transferred.
9. As regards, respondent No. 4, he has filed a reply wherein it is averred that the petitioner even after filing the present petition, herself utilised D.O. Note bearing No. 1573, dated 22.06.2020 in her favour seeking adjustment at GSSS Baddi. It has further been submitted that the petitioner had concealed the fact that the school where she has been transferred is a drive in school and has ample amount of parking space.
10. In addition thereto, respondent No. 3 submitted that the medical disability certificate as relied upon by the petitioner is no certificate in the eyes of law as it has not been issued by a competent authority and moreover, it is clearly mentioned therein that the certificate cannot be used in Court cases or for claiming compensation.
11. Firstly dealing with the question regarding D.O. note, admittedly the petitioner has completed the normal tenure of service at the present place of posting and is, thus, liable to be transferred.
In such circumstances, the mere fact that the transfer has been pre-
empted and prompted on the basis of D.O. note would be of no avail and does not furnish any cause of action to the petitioner to assail ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 8 the transfer order. In addition thereto, we find that the petitioner, after filing the present petition herself obtained a D.O. note bearing .
No. 1573 dated 22.06.2020 in her favour seeking adjustment, which fact has been conveniently concealed by her.
12. Adverting to the second contention relating to the disability of the petitioner, we find that disability certificate dated 04.06.1994 has not been issued by a competent authority i.e. Medical Board and has been issued by the Chief Medical Officer. In this certificate, a note has been appended that this certificate would not be valid for Court cases and for claiming compensations.
13. Now, if at all, the petitioner is handicapped to the extent, as mentioned in certificate, we see no reason why she should not have got herself examined from the Medical Board and having failed to do so, this Court is required draw adverse inference against her.
14. In addition thereto, we find that the school where the petitioner has been transferred is a drive in school and has ample space to park the vehicles in the school premises.
15. In view of the aforesaid discussion and for the reasons set out above, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any.
16. However, before parting, it needs to be observed that this Court has come across number of cases wherein Medical ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 9 Officers including Chief Medical Officers, day-in and day-out, are issuing disability certificates with the note that the same would not .
be valid for Court cases or for claiming compensations.
17. We really fail to appreciate, comprehend and understand as to under which provision and authority such kinds of certificates are being issued. After all there is a presumption of regularity of official act and, therefore, we would assume that the concerned Medical Officers/CMOs must have examined and thereafter satisfied himself before issuing such certificates.
18. We are further at a complete loss to understand the purpose and object of issuing such certificates. Once a certificate is issued by a Medical Officer, he cannot be permitted to back out from the contents contained in said certificate fearing any prosecution, criminal or contempt of the Courts, once produced in a Court of law, the Court is bound to see whether the Medical Officer has the authority or not to issue such kinds of certificates and in case the contents of same are found to be false in whole or in part, then obviously, the Medical Officer issuing such certificate is liable for penal, departmental or any other action that may be warranted under law.
19. We are convinced that this note has been appended only with the intent that the Officer issuing the certificate may not be hauled up before the Court or Tribunal, if eventually such certificate ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP 10 is found to be false in whole or in part. The Court cannot approve this.
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20. Therefore, it is high time that there is an end to this practice or else this would give impetus to the Medical Officers whether they be government doctors or private practitioners to issue such certificates which have no judicial relevance and are inadmissible and are nothing short of being false and fabricated certificates and can thus be grossly misused.
21. The Additional Chief Secretary (Health) is directed to look into matter and issue necessary directions/instructions within four weeks.
For compliance, list on 19.08.2020.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) th 15 July, 2020. Judge (sanjeev) ::: Downloaded on - 17/07/2020 20:21:25 :::HCHP