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2006 DIGILAW 213 (HP)

RAKESH CHANDEL v. STATE OF H. P.

2006-07-28

B.S.CHAUHAN

body2006
JUDGEMENT B.S. Chauhan, Member (A): This original application has been filed by the applicant feeling aggrieved by the transfer order dated 27.8.2005 to Reckong Peo from Bilaspur with the prayer to quash the same. 2. The brief facts of the case are that the applicant who had earlier served at Bharari and was adjusted at Bilaspur vide order dated 27.5.2005 on his request. Subsequently, within a short span of three months he was transferred from Bilaspur to Reckong Peo vide order dated 27.8.2005 (Annexure-A-2). The applicant is aggrieved by the pre-mature transfer within a short span of three months mainly on the ground that he should have been allowed to complete his Normal (sic-normal) tenure after his request was considered to post him at Bilaspur. The applicant mainly relied upon the transfer polity (sic-policy) of the State Government under which the normal tender "of three to five years is prescribed. It has been further alleged by the appellant that his transfer was ordered pre-maturely to accommodate respondent No.3 who was under transfer to Reckong Peo and his orders to that place were canceled while ordering the ; transfer of applicant to Reckong Peo. On these grounds the applicant has alleged that the impugned transfer is discriminatory and arbitrary in nature. 3. Reply was filed by the respondents in which the claim of the applicant was disputed mainly on the ground that the transfer is an implicit and essential condition of service and it is the discretion and prerogative of the competent authority in the Government to post any employee any where in the state in the public interest as per administrative necessity. The claim of the applicant has also been opposed on the ground that he had remained posted in District Bilaspur for over 17 years and in view of this, any transfer to any other place is justified being state cadre category. In view of this, it has been further mentioned that the applicant can be posted any where in the State and no accrued and legitimate right of applicant has been infringed or denied to him by way of the present transfer. 4. Rejoinder was filed in which the claim made in the reply was disputed and the stand taken in the original application was re-affirmed. 5. I have heard the learned counsel for the parties and carefully considered the relevant record. 6. 4. Rejoinder was filed in which the claim made in the reply was disputed and the stand taken in the original application was re-affirmed. 5. I have heard the learned counsel for the parties and carefully considered the relevant record. 6. It is accepted position that the applicant was transferred within a short; span of three months form Bilaspur to Reckong Peo and prior to that he was adjusted at Bilaspur on his request. The learned counsel for the applicant argued that pre-mature transfer within a short span of three months is arbitrary and discriminatory as the same has been ordered with the sole motive to accommodate respondent No.3 who was earlier posted to Reckong Peo and his transfer was cancelled as per Annexure-A-2. In support of this contention she relied upon case law i.e. 2003 Vol. 1. Latest HLJ, Page-33 Kamlesh Sharma Vs. State of H.P. 11 Latest HLJ 2005 (HP) 1157 Indu Mahajan Vs. Sate of H.P She argued further that in these two judgments it has been clearly settled that as and when an employee is transferred on his request he should be allowed to complete his normal tenure at the new place of posting. It has been further decided that the transfer has to be guided by administrative requirement and public interest. The learned counsel for the applicant also argued that the transfer order is arbitrary and discriminatory as the same was issued with a view to accommodate respondent No.3 which is clear from the bare perusal of Annexure -A-2. The learned Deputy Advocate General mainly relied upon the principle that it is the prerogative and discretion of the employer to transfer and post an employee anywhere as per administrative requirement in the public interest. He relied upon AIR 2004 SC-2165 State of U.P. and others Vs. Gobardhan Lal where in the law has been well settled that transfer of any employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. He contended further that an employee an be posted anywhere on administrative requirement or in public interest and Courts or tribunals should normally not sit as appellate authorities over transfer orders. He contended further that an employee an be posted anywhere on administrative requirement or in public interest and Courts or tribunals should normally not sit as appellate authorities over transfer orders. It has been further argued by him that the applicant has been posted at Reckong Peo keeping in view the exigency of service and with a view to provide requisite facilities to the people at large through the medical instructions located there. It is well settled position that an employee can be transferred any where as per administrative requirements by the employer. However, while making such transfer it has to be seen whether the transfer has been made in the public interest or the same is motivated on account of some extraneous considerations. In the instant case it is accepted position that the transfer of the applicant was made within a short span of three months after he was accommodated on request at Bilaspur. It is also abundantly, clear that the said transfer order was issued with a view to accommodate respondent No. 3 who was earlier posted to Reckong Peo and his transfer order was cancelled by retaining him at Bilaspur by posting the applicant at Reckong Peo. 7. In view of this position, it is clearly established that the impugned transfer order dated 27.8.2005 (Annexure-A-2) is discriminatory as well as arbitrary in nature and the same can not be sustained being not justified on administrative grounds or in public interest In view of this position, the transfer order issued vide Annexure A-2 is quashed and set aside and this original application is disposed of as such with no order as to cost.