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2004 DIGILAW 152 (HP)

SURESH KUMAR v. STATE OF H. P.

2004-07-13

BAKHSHISH KAUR

body2004
ORDER Mrs. Justice Bakhshish Kaur, (Retd.) Chairman: Sh. Suresh Kumar, Ayurvedic Medical Officer, has assailed the transfer order dated September 4, 2003 (Annexure A-1) whereby he has been transfer from Ayurvedic Health Centre, Ambera (Una) to Ayurvedic Health Centre, Gajyani just after stay or one month by effecting midterm transfer. 2. The grounds on the basis which impugned order has been challenged are denied. Interalia, it is pleaded that the applicants continuous stay for 13 years at stations, cannot be considered as short. The applicant has been transferred in public interest against vacancy. 3. We have heard Sh. Sunil Mohan Goel, learned Counsel for the appellant and Smt. Abhilasha Kumari, learned Additional Advocate General for respondents. 4. Sh. Sunil Goel, the learned Counsel for the applicant has contended that the act of the respondents in transferring the applicant from Ambera to Gajyani just after one month of stay at Ambera and also by ignoring the fact that vide Annexure A-2, the applicant had been adjusted at Ambera on his own request, is violative of the principles of natural justice. The impugned order being arbitrary, illegal be set aside as it has not been passed in the public interest. No other person has been transferred in his place. To support his argument, he has placed reliance on the decision rendered by the Tribunal in Smt. Kamlesh Sharma v. State of H.P. and others, Latest HLJ 2003 (HP) 333. The transfer order in that case was set aside on the ground that the transfer order was the one which falls under frequent, unscheduled and un-reasonable transfers. 5. Whether the decision of transferring the applicant vide impugned order is vitiated by mala fides? The answer to this quarry can easily be found from the reply filed by the respondents. Under para-3, it is averred as under:- "Admitted to some extent. However, prior to this, the applicant was posted at Ayurvedic Health Centre (AHC), Ariu, (Una) w.e.f. 5/90 to 7/2003 and thereafter adjusted at AHC, Amera Dheeraj (Una). The distance between AHC Arulu (Una) and AHC, Ambera Dheeraj (Una) is only 25 kms. That the applicants continued stay for 13 years at the two adjacent stations cannot be considered to be short. Hence, the applicant has been transferred to AHC, Gajyani (Shimla) in the public interest against vacancy." 6. The distance between AHC Arulu (Una) and AHC, Ambera Dheeraj (Una) is only 25 kms. That the applicants continued stay for 13 years at the two adjacent stations cannot be considered to be short. Hence, the applicant has been transferred to AHC, Gajyani (Shimla) in the public interest against vacancy." 6. It is further averred under para-6, sub-clause (iii) that the applicant served continuously for about 13 years within a radius of 25 Kms. Para-6(1 & 2) reads thus :- "However, later on it was noticed that the applicant was adjusted at AHC Ambera-Dheeraj (Una) which is only 25 kms. from his previous place of positing i.e. AHC, Arulu (Una). Thus, it was decided by the competent authority in the Government that the applicant be shifted to District Shimla in AHC, Gajyani, against vacancy in the public interest. Thus, the averments of these para are not tenable, hence, denied." 7. With this background considering the continuous stay of the applicant for more than 13 years within a radius of 25 kms. in our opinion the competent authority has objectively assessed the administrative exigency. 8. The impugned order of transfer does not involve any such adverse impact. In Union of India and others v. Janaradhan Debanath and another, 2004 SCC (L&S) 631, at page 636 under para-12, it has been observed as under :- "The transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably in essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration." 9. It is well settled that transfer is an incidence of public service and employer has inherent power to transfer depending upon the administrative necessities. 10. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals through they are appellate Authorities over such orders, which could assess niceties of the administrative needs and requirements of the situation concerned as observed in State of U.P. and others v. Govardhan Lal, (S.C.) 2004(3) SLR 239. 10. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals through they are appellate Authorities over such orders, which could assess niceties of the administrative needs and requirements of the situation concerned as observed in State of U.P. and others v. Govardhan Lal, (S.C.) 2004(3) SLR 239. It is further observed that:- "This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convicting reasons, no interference could ordinarily be made with an order of transfer." 11. The applicant is an Ayurvedic Doctor. He is bound to extend his services to the needy people of the area which is true sense is I service to mankind. He should not restrict his experience or knowledge of Ayurveda to one or two places only. In fact, he should extend his services for the cause of humanity and for the betterment of the generation who are unable to cover long distances. To serve fellow being is to serve God. 12. For the aforesaid reasons, Since the transfer is an incident of service and no legal or fundamental right of the applicant has been I infringed, the present Original Application is liable to be dismissed. 13. Dismissed.