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2007 DIGILAW 92 (HP)

JAGAT RAM GAUTAM v. H. P. CIVIL SUPPLIES

2007-04-13

B.S.CHAUHAN, NARINDER SINGH THAKUR

body2007
JUDGEMENT B.S. Chauhan, Member (A):- Feeling aggrieved by the impugned transfer dated 22.11.2004 whereby the applicant was transferred from Whole Sale Godown Arki to Gas Agency Keylong within a short span of 3 months has preferred the present original application with the prayer to quash and set aside the transfer order alleging mala-fide and arbitrariness. 2. Stated briefly the facts of the case are that this case was listed before this Tribunal on 1.12.2004 and the impugned transfer order annexure A-1 was stayed qua the applicant. Thereafter reply and rejoinder were filed. The case was finally disposed of by Division Bench of this Tribunal vide order dated 18.3.2005 by dismissing the original application. Subsequently this order was challenged before the Honble High Court by the applicant by way of C.W.P. No.331/05. This civil writ petition was finally disposed of on 26.4.2005 vide which the order of this Tribunal dated 18.3.2005 was set aside and the case was remanded back for disposing of the same after considering the pleadings of the parties afresh. The parties were further directed to appear before this Tribunal on 2.5.2005. Thereafter time was given to the respondents corporation to file sur-rejoinder to the rejoinder already filed by the applicant, which has been since filed. Operation of impugned transfer order Annexure A-1 was also stayed. 3. Respondents No.1 and 2 have resisted the application on the ground that the applicant holds transferable post of Public Distribution Helper and his transfer has been ordered in the general public interest on administrative grounds and the retention at one place cannot be claimed as matter of right. The respondent with the prior approval of the competent authority is within its power to issue the transfer order, therefore, the impugned order does not suffer from any illegality or infirmity. 4. We have heard Ms. Neelam Bansal, learned vice counsel for the applicant and Mr. N.D. Sharma, Advocate for respondent corporation and have gone through the pleadings carefully. 5. The learned counsel for the applicant argued that the trie application who is public distribution helper under the respondent corporation joined at Whole Sale Godown Arki on 16,8.2004. He was ordered to be transferred on 22.11.2004 from Arki to Gas Agency Keylong just to accommodate respondent No.3. 5. The learned counsel for the applicant argued that the trie application who is public distribution helper under the respondent corporation joined at Whole Sale Godown Arki on 16,8.2004. He was ordered to be transferred on 22.11.2004 from Arki to Gas Agency Keylong just to accommodate respondent No.3. The main ground for assailing the transfer order is that the applicant was transferred within a short span of 3 months from the present place of positing. It was contended by the learned counsel for he applicant that as per the transfer policy of the state government as adopted by the respondent corporation normally an employee is to be allowed to work at a particular place for 3 to 5 years. He alleged that impugned transfer order was passed just to accommodate respondent No.3. Accordingly he has alleged mala-fide and arbitrariness as well as violation of principle of natural justice. He also referred to the rejoinder filed by the applicant in which he has specifically raised the issue of illness of his wife and parents as per medical certificates attached with the rejoinder. 6. The learned counsel for the respondent corporation refuted the claim of the applicant on the ground that the applicant is servings public distribution helper and is liable to be transferred to a similar post in the same7 cadre anywhere in the state which is normal feature and incidence of service. It has been argued further by the learned counsel for respondent corporation that the applicant after joining service under respondent corporation from 1986 has never served in tribal area. The applicant has earlier too managed to get his transfer order dated 23.7.2003 from LPG Gas Agency Ghumarwin to Gas Agency Keylong cancelled by getting himself adjusted at Arki. He contended further that he was temporarily adjusted at Arki and thereafter was ordered to be transferred to Keylong as the incumbent posted in Gas Agency at Keylong had completed his normal tenure in tribal area as he was posted there since 13.5.2000. He re-iterated that the employees of the corporation are required to serve in the tribal area on rotation basis and respondent No.3 cannot be retained at Keylong for indefinite period as he had to be posted out to soft area on completion of normal tenure. He re-iterated that the employees of the corporation are required to serve in the tribal area on rotation basis and respondent No.3 cannot be retained at Keylong for indefinite period as he had to be posted out to soft area on completion of normal tenure. Referring to the sur-rejoinder it was contended by the learned counsel for the respondent corporation that the corporation is responsible for supplying the essential commodities i.e. cooking gas etc. in tribal area, hence applicant can be posted were keeping in view the public interest and exigency of work. It was specifically denied that the posting of the applicant Keylong was out come of mala-fide and arbitrariness, on the contrary the same was ordered on administrative grounds and in public interest. Referring to the medical certificates annexed with the rejoinder, the claim of the applicant was disputed by the learned counsel for the respondent corporation stating therein that these certificates pertain the year 2000 and the present status of the illness of the relatives of the applicant is not disclosed by the applicant. He also stated that no legally indefeasible right of the applicant has been violated. In support of his argument that the applicant can be posted any where in public interest and exigency of work and the employer has every right to transfer any employee, he cited the following case law: (i) (2006) 9 SCC 583, S.C. Saxena vs. Union of India and others. (ii) (2005) 7 SCC 227 Major General J.K. Bansal vs. Union of India and others. 7. The short controversy in this case relates to the transfer of the applicant from Arki to Keylong within a short span of 3 months. It is accepted position that respondent corporation is engaged in supplying of the essential commodities to the people at large. The applicant who is Public Distribution helper under the respondent corporation can be posted anywhere in the state as per conditions of service. It is matter of record that the application joined at Arki on 16.8.2004 and was transferred after 3 months on 22.11.2004. It has also emerged from record that the applicant was earlier transferred from Ghumarwin to Keylong during July 2003, but he was subsequently adjusted at Whole Sale Godown Arki and joined there during August, 2004. It is matter of record that the application joined at Arki on 16.8.2004 and was transferred after 3 months on 22.11.2004. It has also emerged from record that the applicant was earlier transferred from Ghumarwin to Keylong during July 2003, but he was subsequently adjusted at Whole Sale Godown Arki and joined there during August, 2004. It is accepted position that the applicant has not served the tribal area and the incumbent who is posted at Keylong has been serving there since May, 2000 and as such has completed his normal tenure in tribal area long back. This position itself makes it amply clear that the impugned transfer order was not issued to accommodate respondent No.3. On the contrary he is entitled to be posted out of tribal area after completion of his normal tenures as he has every right to be posted in soft area on completion of his tenure in tribal area. In view of this the allegation of the applicant that transfer order was issued to accommodate respondent No.3 is not tenable. It is settled position that transfer is an incidence of service and the same is not interfered by the courts unless the same is challenged on the ground of mala-fide or arbitrariness with is not position in this case. In our considered view no indefeasible right of the applicant has 6een violated. 8. In view of the facts and circumstances of the case it cannot be said that the order of the transfer having been passed by the respondents is violative of policy formulated by the State Government as adopted by the respondent corporation. It is not in dispute that the applicant by now has completed little less than 3 years at the present place of posting since August 2004.Thus an employee cannot claim his retention at a particular place as matter of right. The applicant has been transferred to Keylong keeping in view the exigency of service and administrative requirement and in the larger public interest. In view of this it cannot be said that order of transfer had been passed by the respondents arbitrarily and the same is not in violation of transfer policy formulated by the State Government. In this regard reliance is also placed in "Union of India and others vs. "S.L. Abbas. In view of this it cannot be said that order of transfer had been passed by the respondents arbitrarily and the same is not in violation of transfer policy formulated by the State Government. In this regard reliance is also placed in "Union of India and others vs. "S.L. Abbas. AIR.1993 SC 2444.At page 2445 their Lordship has observed as "An order or transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in manner required by proper authority." "Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala-fides or is made in violation of any statutory provisions, the Court cannot interfere with It." In view of the above discussion the impugned order does not suffer form any legal infirmity and the applicant has no case on merit nor it can be termed was mala-fide, therefore, transfer being incidence of service which has to be accepted by the applicant. For the reasons stated hereinabove, there are no grounds to interfere with the impugned order which has been made in the public interest on administrative grounds. This original application is accordingly dismissed with no order as to costs. The interim orders passed on 1.12.2004 and 2.5.2005 are hereby vacated.