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2007 DIGILAW 161 (HP)

PARKASH CHAND v. STATE ELECTRICITY BOARD

2007-05-08

NARINDER SINGH THAKUR, VIJAY PAL SINGH

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JUDGEMENT Mr. Naridner Thakur J:- This application has been field by the applicant under Section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs: (i) That the impugned transfer order dated 20.12.2006. Annexure A-4 may be quashed and set aside and applicant may be allowed to continue serving at Bilaspur in accordance with law. (ii) Directions may be issued to the respondents to produce the records of the case before this Honble Tribunal. 2. In brief the case of the applicant is that he was posted in M&T Division, Solan. Vide order dated 20.3.2006 Annexure A-1, the applicant was transferred to M&T Sundernagar. He filed an Original Application before this Tribunal which is registered as OA No. (M) 163/006 which was directed to be treated as representation to be decided within fifteen days Annexure A-2. Thereafter the applicant was transferred from M&T Division Solan to M&T sub Division, Bilaspur which falls under M&T Division, Sundernagar Annexure A-3 Vide Annexure A-4 dated 7.6.2006 was relieved from duties and was further directed to report for his duty to Senior Executive Engineer M&T HPSEB, Sundernagar. It is alleged by the applicant that the joining report of facie applicant was not accepted by the Senior Executive Engineer and he was further directed to give his joining to Assistant Engineer (T&C). Sub Division HPSEB. Bilaspur and he submitted his joining report on 14.6.2006 in T&C Sub Division, Bilaspur, Annexure A-5. The stay of the applicant at Bilaspur was six months when the applicant has been transferred from Bilaspur to M&T, Shimla under M&T Division, Solan vide order dated 20.12.2006, Annexure A-6. 3. It is stated by the applicant that the action of the respondent to transfer the applicant from Bilaspur to Shimla is wrong, illegal. The impugned transfer order is colourable exercise of official powers. 4. Reply has been filed by the respondent/Board. It is stated by the respondent/Board that the transfer being an incidence of service and not being mala-fide, the action of the respondent calls for no interference by this Tribunal. Even in accordance with the accepted terms and conditions of the employment, the applicant is under legal and contractual obligation to serve the respondent anywhere in Himachal Pradesh where the respondent Board have its offices. Since the cadre of the Junior Engineer is State Level cadre. The applicant is the resident of village Bopber PO Jarol. Even in accordance with the accepted terms and conditions of the employment, the applicant is under legal and contractual obligation to serve the respondent anywhere in Himachal Pradesh where the respondent Board have its offices. Since the cadre of the Junior Engineer is State Level cadre. The applicant is the resident of village Bopber PO Jarol. Tehsil Sundernagar District Mandi HP and remained posted in Bilaspur/ Sundernagar which is near to his home place for about 20 years stay out of service rendered in the Board for 21 years. The detail of his posting is as under: - M&T Sub Division Sundernagar 13.3.1985 to 16.8.2001 MT Sub Division Bilaspur 17.8.2001 to 3.5.2002 M&T Sub Division Sundernagar 4.5.2002 to 12.5.2005 Sub Station Testing S/Div. Solan 13.5.20Cfeto 13.6.2006 M&T Sub Division Sundernagar 14.6.2006 to date 5.The above details shows that the applicant has availed opportunity to remain posted nearby his home place through out his service except for the period 13.5.2005 to 13.6.2006 which is not conducive in the interest of Boards work for all times. There is no illegality or irregularity in transferring the applicant from M&T Divn. Sundernagar to M&T Lab Shimla under M&T Division, Solan in as much as the transfer is an Administrative function and matter of accommodation is to be made by the Administrative authority in the exigencies of work. 6. It is further stated by the respondents that a complaint was received from the public of Gram Panchayat Bober Tehsil Sundernagar District Mandi regarding misconduct and government activities of the applicant herein above which was further got investigated through sub Divisional Officer (Civil) (SDM), Sundernagar. As per his investigation report the charges levelled in the complaints by complainants could not be conclusively proved. However, in view of general complains of the public of the area it was considered prudent by the competent authority in the Board to transfer him from his existing place of posting and he was transferred to M&T Lab. Shimla under M&T Division, Solan. 7. Rejoinder has been field by the applicant it has been stated by the applicant in the rejoinder that the request of the applicant was acceded to and he was transferred from Solan to Sunder Nagar vide office order dated 7.6.2006. Once the request of the applicant was acceded to trie applicant cannot be transferred after a short stay of less than six months. Once the request of the applicant was acceded to trie applicant cannot be transferred after a short stay of less than six months. It is further stated by the applicant in the rejoinder that the applicant cannot be transferred on the basis of false complaints. Rest of the contents of the rejoinder are the repetition of the contents of original application. 8. We have heard the learned counsel for the respective parties and have gone through their pleadings carefully. 9. The case of the applicant is that he has been transferred within a short span of six months from the present place of posting and has not been allowed to complete his normal tenure at the present place. This contention of the applicant is contrary to record. The applicant is permanent resident of Tehsil Sundernagar and as per the incumbency of the applicant the has served for about twenty years in and around Sunder Nagar/Bilaspur which is nearer to his home place except for a brief period of one year at Solan though he is having State cadre post. 10. Moreover, there is a general complaint of the public of the area against the applicant therefore the competent authority transferred the applicant from the present place of posting. The application has stated in the rejoinder that the transfer of the applicant has been made for extraneous consideration and to punish him. The Honble Apex Court in Union of India and others vs Janardhan Debanath and another reported in 2004(1) Service Cases today has held that no regular inquiry is necessary when an employee is a found guilty of misbehavior by the competent authority only a prima facie opinion recorded is sufficient. It has further been observed that transfer is not a punishment for which only regular enquiry is necessary. It is prerogative of competent authority alone to make posting and transfers of its employee at appropriate place and to maintain discipline decency and decorum of public service in public interest and administrate exigencies. It has further been held that Courts/Tribunals cannot interfere unless a strong case of clear mala-fide and arbitrariness is made out. 11. The transfer policy also nowhere states that a person cannot be transferred unless he completes three to five years at a particular station. 12. It has further been held that Courts/Tribunals cannot interfere unless a strong case of clear mala-fide and arbitrariness is made out. 11. The transfer policy also nowhere states that a person cannot be transferred unless he completes three to five years at a particular station. 12. The second contention of the applicant is that he was adjusted at the present palace of posting at his own request and he cannot be transferred after a short stay of less than six months. This contention is also contrary to the law laid down by the Honble apex Court reported in (1998)3 SCC 303 in which it has been observed that the transfer of an employee is within the prerogative of the government and as such it can withdraw alter or modify any previous order of transfer. 13. The Honble Apex Court in (2004)2 SCT 368 State of UP Vs. Gobardhan Lal has observed as under. "It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an 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 induction to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an out come of a mala-fide exercise of power or violative of any statutory provisions (an a Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made., Even administrative guidelines for regulating transfers or containing transfer polices at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress 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 serve 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. This court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable rights, unless as noticed supra shown to be vitiated by mala-fide or is made involution of any statutory provisions." 14. We have perused the record and pleadings. There is nothing on record to show that the impugned order has been passed in mala-fide or arbitrary manner or under the colourable exercise of powers. In view of the above facts and circumstances of the case and the settled law by the Honble apex Court in above referred to case law coupled with twenty years of stay of the applicant in and around Sundernagar. We do not find any merit in the original application and the same is rejected. Interim stay granted on 1.1.2007 is hereby vacated.