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Himachal Pradesh High Court · body

2004 DIGILAW 184 (HP)

PREM CHAHD SHANMA v. HPSEB

2004-08-06

BAKHSHISH KAUR, D.S.AMIST

body2004
ORDER Honble Ms. Bakhshish Kaur, (Retd.) Chairman: The applicant aggrieved by the impugned order dated 3.2.2004 whereby he has been transferred from the present place of posting i.e. BBMB Dehar to Sunni within a short span of one year and five months has filed this application under Section 19 of the Administrative Tribunals Act, 1985 (in short Act). 2. The grievance of the applicant is that the he has never been adverse to being posted to any place in the interest of the respondents Board, but unfortunately he has been singled out and subjected to frequent and unscheduled transfers on short spells not owning to any public interest and administrative exigencies, but owing to misplaced sympathies being shown to ex-wife of the applicant who has been making false complaints against him. She herself has been enjoying safe and single stationed posting at Shimla since the day of her appointment. 3. The respondents No. 1 to 3 have filed separate written replies to the original application. The basic plea raised by the respondent No. 1, in reply is that the applicants is under legal and contractual obligation to serve the respondents anywhere in Himachal Pradesh where the respondent Board has offices. The cadre of the junior Engineers is State level cadre. The Honble Supreme Court in the case of State Bank of India v. Anjan Sanyal and others, Civil Appeal No. 226 of 1974 decided on 12.4.2001 observed that the scope of judicial review in transfer issues is limited and court will interfere only when there is mala fide transfer prohibited by service rule or passed by any incompetent authority, therefore, this application is not maintainable. As a matter of fact the applicant has violated the provisions of Rule 21 of the CCS Conduct Rules and it warrants disciplinary action as the acts are unbecoming of Government servant as he has remarried during the life time of his first wife as alleged by Smt. Sundershana Sharma in her representation. 4. The respondent No. 2 in its reply has also averred that there are 30.000 regular employees in HPSEB. Out of them about 3000 persons are borne on the cadre of Junior Engineers. The replying respondent No. 2 is holding the position of Member (Administration) in HPSEB and in her capacity as such she is not required to have direct inter-action with such of those persons like the applicant. Out of them about 3000 persons are borne on the cadre of Junior Engineers. The replying respondent No. 2 is holding the position of Member (Administration) in HPSEB and in her capacity as such she is not required to have direct inter-action with such of those persons like the applicant. The impugned order dated 3.2.2004 (Annexure A-1) has been issued by the competent authority after taking collective decision within parameters of the rules and in the exigencies of service. 5. Similarly the stand taken by respondent No. 3 is that under Section 79(6) of the Punjab Re-Organization Act, BBMB is under the control of the Central Government and is bound to comply with such directions as may from time to time be given to it by that Government HPSEB is the parent employer of the petitioner, therefore, the application against the respondent is liable to be rejected. On merits it is pleaded that it is the sole prerogative of the patent employer whether or not to allow the employee like petitioner to continue to serve with the employer at whose disposal the services of such employee have been placed. 6. The- application is his rejoinder to the reply of respondent No. 1 has reiterated the averments contained in the application, it is denied that the transfer has been made on administrative grounds. In fact the reply of the respondent is threatening in nature. They have reached the conclusion without holding any inquiry. The applicant has filed a petition for the dissolution of marriage with Sundarshana Sharma on the grounds of cruelty and adultery in the year 1990. The matter is still pending with the Apex Court. 7. We have heard Sh. P.P. Chauhan, learned Counsel for the applicant and Sh. Yash W. Chauhan, learned Counsel for respondents. 8. The substantive prayer made by the applicant is that impugned order has been passed at the behest of the wife simply to harass him. It is she who had filed false and frivolous complaints against him. She had also field complaints in different courts. Thus respondents had been passing orders of frequent transfer of the applicant not due to exigencies of service but due to the misplaced sympathy shown to his ex-wife. 9. The applicant has quoted the instance and the origin of several cases pending having been instituted at the instance of Sundarshana Sharma his ex-wife. Thus respondents had been passing orders of frequent transfer of the applicant not due to exigencies of service but due to the misplaced sympathy shown to his ex-wife. 9. The applicant has quoted the instance and the origin of several cases pending having been instituted at the instance of Sundarshana Sharma his ex-wife. His grievance is that although his work and conduct was found satisfactory by the competent authorities at different levels yet the representations made by Sundarshana Sharma had weighed in the mind of the authorities concerned and then transfer orders have been issued at the behest of his ex-wife. 10. We need not to go into the matrimonial dispute between the applicant and his wife Sudarshana Sharma. Even if they have strained relations then that aspect is outside the judicial review. Transfer is an incidence of service and has been made in exigencies of work, this fact is born out from para 6(1) of his application which is as under:- (a) 17.12.81 to 20.9.90 Shimla (Nearly nine years) (b) 21.9.90 to 4.1.95 Rajgarh (4 Years 8/9 months) (c) 5.1.95 to 20.8.96 Pooh (Him Urja (d) 21.8.96 to 24.5.99 Chopal (3 years) (e) 25.5.99 to 30.5.01 , Solan (f) 31.5.01 to 31.8.02 Chopal (g) 2.9.02 to date BMB Dehar 11. The aforesaid chart clearly shows that he remained posted at Shimla for 9 years and then at subsequent places of his posting he remained posted for 5 years, 3 years and some time for 2 years and so on. Thus it cannot be said that he is victim of frequent transfers. The respondent have not issued the transfer orders at the behest of his wife. If respondents issued his transfer order on the behest of his wife even then interference cannot been made with the transfer orders because transfer does not involve adverse or visit him with penal consequences. 12. Broad concept of the transfer is change of place as held in State of Rajasthan and others v. Anand Prakash Solanki, 2004(1) AISLJ (SC) 309. It is also held that transfer is an incidence of service and employer has inherent right to transfer, even if there is no cadre of Presidents yet transfer in public interest is not prohibited. Reliance is also placed in N.S. Nikose v. The Director General Border Roads and another, 2004(2) SLR 6 (Pb. It is also held that transfer is an incidence of service and employer has inherent right to transfer, even if there is no cadre of Presidents yet transfer in public interest is not prohibited. Reliance is also placed in N.S. Nikose v. The Director General Border Roads and another, 2004(2) SLR 6 (Pb. & Hr.), Union of India and others v. Sri Janardhan Debanath and another, 2004(2) SLR 15 (S.C. and State of U.P. and others v. Gobardhan Lal, 2004(3) SLR 239 (S.C). In Gobardhan Lals case (supra) is has been observed as under:- "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though there are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for this 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 convincing reasons. No interference could ordinarily be made with an order of transfer." 13. The discretion of judicial review can be exercised and the transfer order can be interfered with only when the order is found to be in violation of statutory rule and when the order is mala fide. Both these factors are missing in this case. 14. For the aforesaid reasons the transfer which appears to be made in public interest and there is no violation of statutory provisions nor any legal or fundamental rights of the applicant has been infringed. Consequently this Original Application is dismissed.