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2006 DIGILAW 420 (HP)

RAM LAL CHAUHAN v. STATE OF H. P.

2006-12-28

M.R.VERMA

body2006
JUDGEMENT M.R. Verma. J. (Retd.) Chairman:- The applicant in this original application has prayed for quashing the order Annexure A-1 dated 6.1.2004 whereby he has been transferred from the office of Engineer-in-Chief at Shimla to National Highway Division, Hamirpur and Annexure A-3 whereby he has been relieved pursuant to the said transfer order. 2. The case of the applicant as made out in the original application is that respondent No.3 was under transfer to the National Highway Division, Hamirpur but managed cancellation of her transfer and the authority approved her adjustment in the office of Engineer-in-Chief against longer stay. In the office of Engineer-in-Chief there are 35-40 Senior Assistants with longer stay than the applicant, therefore, adjustment was made against the post held by one Sita Ram as indicated in the order Annexure A-1 but some one substituted the name of the applicant in place of said Sita Ram. Thus, the impugned transfer order being manipulated order is illegal. Besides the son of the applicant is studying in B.A. II year in a College in Shimla and his daughter is studying in M.Com in Shimla and the impugned transfer will result in loss of their studies. The applicant aggrieved by the impugned transfer order filed O.A. No. 109/2004 in this Tribunal which was treated as a representation to be decided by respondent No.2 within six weeks and till such disposal the operation of the impugned transfer order was stayed. However, no decision on such representation was taken/conveyed to the applicant instead he was relied vide order annexure A-3 dated 5.3.2004. Hence this original application. 3. Respondents No.1 and 2 filed reply which was adopted by respondent No.3. In the reply the respondents have raised the preliminary objections (i) that no legal or equitable right of the applicant has been infringed, therefore, he has no cause of action, (ii) that the applicant has not come to the court with clean hands therefore, the original application deserves to be dismissed, (iii) that the original application is bad for misjoinder and non-joinder of necessary parties as said Sita Ram has not been impleaded as party in this" original application and (iv) that the Competent authority in the Govt. vide directions dated 26.12.2003 directed to adjust respondent No.3 in the office of respondent No.2 vice longer stay (Male employee) without TTA and joining time and before this on 15.12.2005 a request from H.P. Vidhan Sabha was also received and the matter was accordingly dealt with. Since there was no vacancy to adjust respondent No.3 in the office of respondent No.2, therefore, name of the applicant was approved for transfer keeping in view the administrative convenience/efficiency factor and administrative and public interest. Since the direction was to adjust the respondent against longer stay (Male employee) and not the longest stay, therefore, all those who had completed their normal tenure at Shimla were considered and for the reasons aforesaid the applicant was ordered to be transferred. The representation of the applicant after hearing him and inquiring into the allegations of manipulation was dismissed on 28.2.2004.The dismissal order could not be delivered to the applicant as he refused to accept the same. Then it was again attempted to be delivered to him but in the meanwhile he stood relieved on 5.3.2004, therefore, such order was sent to his home address by post and on 19.3.2004 another copy was also supplied to him. It is also claimed that a Govt. servant is liable to be transferred in the public interest anywhere any time in the exigency of service wher.3 the department has its administrative units as such an employee has no cause of action against the employer. Therefore, the original application is bad in law and as such not maintainable. It has also been averred in the reply that mention of name of Sita Ram in the transfer order was a typing error in the stencil which when noticed was corrected but the applicant managed to get the uncorrected copy of the said order. In their preliminary submissions the respondents further claim that the wheel of administration should be allowed to run smoothly and the courts/Tribunals are not expected to interfere in the working of the administrative system by transferring the officers/officials to the proper places as mandated by the Honble Supreme Court. 4. On merits it is claimed that the applicant had served in his home District since his appointment in June, 1973 except for a few days in Mandi and remained in Shimla proper for 20 years as a whole with intervening postings in Chopal and Theog. 4. On merits it is claimed that the applicant had served in his home District since his appointment in June, 1973 except for a few days in Mandi and remained in Shimla proper for 20 years as a whole with intervening postings in Chopal and Theog. Rest of the averments on merits are almost similar to those made in the preliminary submissions already set out herein above with the further submissions that educational facility for the children of the applicant are available at the place to which he has been transferred and even otherwise their academic sessions are over. 5. I have heard the learned counsel for the applicant and respondent No.3 "and the learned Additional Advocate general/Dy. Advocate General for respondents No.1 and 2 and have also perused the relevant records produced by the respondents. 6. In so far as the preliminary objection qua mis-joinder and non-joinder of necessary party is concerned in the reply the respondents have no where averred nor at the time of arguments it has been pointed out as to who has been wrongly joined as a party in the original application to render it bad for misjoinder. Apparently it is not a case of misjoinder of parties. It is however, claimed that Sita Ram whom the applicant claims to have been initially transferred and for whom the name of the applicant has been substituted was a necessary party to the original application. Since the applicant has not claimed any relief against said Sita Ram, therefore, he is not a necessary or even a proper party to this original application. Thus the objection is without any merit and substance and is accordingly rejected. 7. Regarding the objection that the applicant has not come to the court with clean hands therefore, this original application is liable to be dismissed, the respondents have laid no foundation nor have stated facts if any in this regard in their reply therefore, this objection is also without any merit and substance and is accordingly rejected. 8.Regarding the objection that the applicant has not come to the court with clean hands therefore, this original application is liable to be dismissed, the respondents have laid no foundation nor have stated facts if any in this regard in their reply therefore, this objection is also without any merit and substance and is accordingly rejected. 9. 8.Regarding the objection that the applicant has not come to the court with clean hands therefore, this original application is liable to be dismissed, the respondents have laid no foundation nor have stated facts if any in this regard in their reply therefore, this objection is also without any merit and substance and is accordingly rejected. 9. The objections regarding want of cause of action and maintainability are based on the pleadings of the respondents that none of the legal and equitable rights of the applicant had been infringed and the transfer is pursuant to the directions of the competent authority and request from Vidhan Sabha. The allegation of the applicant is that the impugned transfer was ordered merely to adjust respondent No.3 who managed to get her transfer to Hamirpur cancelled and in the process earlier one Sita Ram was transferred to Hamirpur to adjust respondent No.3 in the office of respondent No.2 and subsequently the name of the applicant was substituted for Sita Ram by interpolation of transfer order. In view of these allegations it cannot be held that the applicant has no cause of action or the original application is bad in law and is not maintainable. On the contrary the clear admission of the respondents in the reply that there were directions of the competent authority to adjust respondent No.3 in the office of respondent No.2 vice longer stay (male employee) and a request from Vidhan Sabha was also received and "accordingly as per the said directions the matter was dealt" clearly gives a cause of action in favour of the applicant and controverts the pleas of want of cause of action and non-maintainability of this original application. Thus, these objections are also devoid of any substance and are therefore, rejected. 10. To appreciate the merits of the case it is necessary to set out the circumstances under which the impugned order Annexure A-1 came into being as borne by the record and not disputed by the parties. 11. On 15.12.2003 Speaker H.P. Vidhan Sabha sent a notice to the Engineer-in-Chief expressing that he would "like Engineer-in-Chief, HPPWD that respondent No.4 may be adjusted against the incumbent having longer stay" in Engineer-in-Chief office, U.S. Club, Shimla or in HPPWD 4th Circle Winter field, Shimla being a couple case as her husband was serving in his personal staff in H.P. Vidhan Sabha. Pursuant to this communication the matter in the form of proposal was referred to the Principal Secretary, (PWD), Govt. of H.P. and finally a note received from the office of the competent authority desired that responded No.4 might be adjusted in the office of Engineer-in-Chief vice longer stay (male employee) without TTA or joining time. Pursuant to this note the office put up a consequential proposal indicating names of four Senior Assistants with longer stay in Shimla. It appears that the transferring authority did not chose anyone of such persons for transfer and asked for the information whether there was any vacancy available in the office of Engineer-in-Chief. The query was answered in the negative and thereafter it was desired that names of other Senior Assistants who had completed their tenure in the office be also added in the list and accordingly, the list was put up and thereafter the order "as discussed" followed. Thus the transferring authority did not direct in writing as to which one of the Senior Assistants was approved for transfer and used the expression "as discussed" for follow up action. Consequently the impugned transfer order came into being. The office copy of the impugned order as available on record reveals that initially duty signed order was in the form as Annexure A-1. However, such office copy on the face of it reveals that the name of the transferee in its 4lh column originally was mentioned as Sita Ram but subsequently by deleting words Sita and adding words "Lal" it has been made to read as "Ram Lal. According to the applicant his name has been introduced in the transfer order subsequently and that the impugned transfer order has been brought about with a view to accommodate respondent No.3. 12. From the circumstances as set out hereinabove which led to the issue of Annexure A-1 I am unable to hold that the impugned transfer order was passed in public interest or in the exigency of service, it is, therefore, not necessary to give considered opinion on the allegations that the impugned transfer order had been manipulated by interpolation. However, prima facie the interpolation and addition in the said order are capable of being explained in the light of the submissions made by the respondents in the reply and at the time of the arguments because the name of the applicant at Sr. However, prima facie the interpolation and addition in the said order are capable of being explained in the light of the submissions made by the respondents in the reply and at the time of the arguments because the name of the applicant at Sr. No.2 of Annexure A-1 existed in the original order and does not appear to have been tempered with. 13. It may also be pointed out here that the authority which decided to issue the transfer orders Annexure A-1 in fact has not acted in conformity with the approval accorded by the competent authority. The transferring authority instead of deciding to transfer a Senior Assistant with the longer stay desired information about the vacancies which was reported to be nil. When the list of four Senior Assistants having longer stay in the office was submitted he desired putting up of a list of those Senior Assistants who have completed their normal tenure and approved transfer of the applicant who was much junior to many in the matter of stay in the office. It is sought to be explained on the ground that the competent authority had desired transfer of a male employee with a longer stay in the office and not the one who might have longest stay. Be it stated that the expression longer stay apparently must have been considered with reference to the stay of the official who was sought to be adjusted that is respondent No.3 who had an unbroken stay of about 15 years in Shimla, much more than such stay of the applicant. Even if the expression longer stay was used with reference to" the Senior Assistants working in the office of the Engineer-in-Chief the longer stay would have been of the person who has longest stay. Even on this count the transfer is not found inconformity with the approval accorded by the competent authority. 14.The fate of the matter, however, entirely rests on the answer to the questions as to whether a transfer which is neither in public interest nor in the exigency of service but with a view to adjust one employee is sustainable in law because it was approved by the competent authority. 15. There cannot be any dispute with the proposition that transfer is not only an incident but a condition of service necessary too, in public interest and efficiency in the public administration. 15. There cannot be any dispute with the proposition that transfer is not only an incident but a condition of service necessary too, in public interest and efficiency in the public administration. It is also well settled principle of service jurisprudence that transfer of its employee is the prerogative of the government which has the powers to transfer its employee any where at any time in the public interest and/or in the exigency of service. Therefore, wheel of administration should be allowed to run smoothly and the Courts/Tribunals should not interfere with the actions of the administrative authorities in the matter of transfers. Whoever we are governed by the Rule of law as per the mandate of the Constitution and the laws made thereunder. Under our system of governance all Constitutional and statutory authorities are obliged to discharge their duties and functions in accordance with the Constitution, laws and statutory rules in a transparent manner without any element of malice, discrimination, arbitrariness, prejudice or undue favour. An act/order which is not in conformity with the said obligation will not be supportable. The transfer is incident and condition of service to meet the exigencies of service and to serve the public purpose. Incase it is not to serve either of these two purposes or is Mala-fide/discriminatory/arbitrary, it cannot be sustained. 16. In Ramadhar Pandey Versus State of U.P. and others (1993) (4) SLR 349) the Honble Supreme Court has held as under:- "The order dated July 8,1992 does not recite any public interest. We are also not in a position to discover from the other records available before us whether the transfer of the appellant was in public interest. In the absence of a counter-affidavit or even the relevant records, we are left with no option than to conclude that no public interest is involved. It cannot be gainsaid that transfer is a necessary concomitance of every service but if such a transfer could be effected only on certain conditions, it is necessary to adhere to those conditions. In this case, "the public interest" being absent, the impugned order of transfer cannot be supported." 17. As already concluded hereinabove the impugned transfer order being not in the public interest or in the exigency of service is liable to be quashed and set aside. 18. In this case, "the public interest" being absent, the impugned order of transfer cannot be supported." 17. As already concluded hereinabove the impugned transfer order being not in the public interest or in the exigency of service is liable to be quashed and set aside. 18. As a result, this original application is allowed and the impugned transfer orders Annexure A-1 and relieving order Annexure A-2 are quashed and set aside. The parties are, however, left to bear their own costs.