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Himachal Pradesh High Court · body

2007 DIGILAW 366 (HP)

A. K. DUTTA v. STATE OF HIMACHAL PRADESH

2007-08-30

M.R.VERMA

body2007
JUDGEMENT M.R. Verma, J. (Retd.) Chairman:- The applicant herein has prayed for quashing and setting aside Annexures A-3 and A-5 respectively dated 29.11.2006 and 11.4.2007 and that the respondents may be directed to allow the applicant to function at his present place of posting. 2. The sum and substance of the applicants case is that he had always complied with his transfer orders passed by the employer and had worked for full term at Reckong Peo in District Kinnaur. As per the Transfer Policy of the State Government a person who had once completed his tenure in a tribal/hard area, cannot be transferred to a hard and difficult area. It is further claimed that the applicant vide Annexure A-3 had been transferred to Nerwa a hard area, which transfer appears to have been effected in the colourable exercise of the power with malafide intention as is revealed by the endorsement in the transfer order to the Private Secretary to the Agriculture Minister and the fact that transfer has been effected without allowing him T.T.A. Aggrieved applicant filed O.A. No. 224/2007 which was ordered to be treated as representation vide Annexure A-4. Such representation was rejected by the Principal Secretary (Agriculture) to the Government of H.P. vide Annexure A-5. Hence, this original application on the grounds that the impugned orders are violative of Articles 14 & 16 of the Constitution of India, unjust, illegal/arbitrary, discriminatory and also suffer from mala-fide. 3. The respondent in its reply contested the claim of the applicant on the grounds that the applicant has been transferred on administrative grounds with prior approval of the competent authority after he has a stay of 10 years in his home district. It is also claimed that the transfer and postings are ordinary incidence of service and are presumed to have been made to satisfy the administrative exigency. The Transfer Policy of the State Government is in the nature of executive instructions and does not confer upon the Government employee legal or enforceable right. Thus, the application is "abinitio non maintainable". So far as T.T.A. is concerned, the respondents claims that the applicant had not made any representation to any authority in this regard. It is also denied that his transfer had been ordered because of the intervention of a politician. Thus, the application is "abinitio non maintainable". So far as T.T.A. is concerned, the respondents claims that the applicant had not made any representation to any authority in this regard. It is also denied that his transfer had been ordered because of the intervention of a politician. It is admitted that the applicant had worked in the tribal area for full term but thereafter he was given a posting of this choice. It is, thus, claimed that impugned transfer is in the public interest and because of administrative reasons. 4. The applicant filed rejoinder wherein the grounds of defence as taken in the reply filed by respondent have been denied and the claim as made out in the original application has been reaffirmed. 5. The respondents were directed to produce the record/nothings leading to the impugned transfer order which had been produced. 6. I have heard the Learned Counsel for the applicant and the Learned Additional Advocate General for respondent-State and have also perused the record produced by the respondent. 7. A proposal for transfer ordinarily moves upwards and not downwards. In other words, a proposal for transfer is initiated by a lower authority than the authority competent order/approve the transfer. When the transfers are proposed in such a normal manner, they can be deemed to be transparent and fair enough. however, when a transfer proposal for transfer is initiated at a higher level without assigning any reason for doing so, the submissions of the proposal by the authorities below become a mere formality because they will ordinarily comply with the command of the superior and thus, proposal will not be based on administrative exigency or public interest but on what is desired to be done by the higher authority. In any case the record must show that the transfer is in public interest or exigency of service, only then it will be valid in law. 8. In the case in hand, a perusal of the record produced by the respondent reveals that request was received for transfer of the applicant from some unknown source/authority, not disclosed on the record or the reply filed by the respondents. The request is to transfer the applicant "to either remote area of Shimla or Chamba District". The record does not disclose as to why the applicant is to be transferred to a remote area as requested and latter proposed. The request is to transfer the applicant "to either remote area of Shimla or Chamba District". The record does not disclose as to why the applicant is to be transferred to a remote area as requested and latter proposed. The Joint Secretary to the Chief Minister, however, forwarded the request to the Secretary ( Agriculture) to examine and to put up in the departmental file for perusal/orders. The Director (Agriculture) and Secretary (Agriculture) complied. However, neither in their communication inter se nor jn the relevant nothings, it is indicated that the impugned transfer which is apparently intended to shift the applicant to a remote area was required because of any administrative reason or in public interest or exigency of service. From non disclosure of the identity of the person requesting for sending the applicant to a remote area an inference that the impugned transfer order came into being in shady circumstances only to oblige such unknown person can be legitimately drawn. 9. In view of the above conclusions, the impugned transfer order not being in public interest or exigency of service cannot be sustained. 10. Be it stated that vide Annexure A-5 representation of the applicant as the earlier O.A. was treated had been rejected on the ground that transfer of a Government employee to a hard area who had already served in such area, is not prohibited by the Transfer Policy of the Government and that the Government in view of exigency of service can post anyone in a hard area. In fact as already concluded hereinabove the impugned transfer having not been made in public interest or exigency of service, the reasons for rejection of the representation are also unsustainable. 11. As a result, the impugned transfer order Annexure A-3 and the order Annexure A-5 rejecting the representation as earlier O.A. was treated vide Annexure A-4, are quashed and set aside and this original application is accordingly disposed of.