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Himachal Pradesh High Court · body

2012 DIGILAW 896 (HP)

Y. S. Parmar v. Om Prakash Thakur

2012-11-29

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. This Letters Patent Appeal is directed against the judgment dated 29.6.2010 passed by the learned Single Judge in CWP No. 1988 of 2010. 2. Material facts necessary for the adjudication of this appeal are that respondent No.1- petitioner (hereinafter referred to as the ‘petitioner’ for convenience sake) filed a petition assailing his transfer order dated 4.5.2010 whereby he has been transferred from Campus to Horticulture Research Centre Bajoura. Petitioner has challenged his transfer order on the ground that he was victimized, being President of Non-Teaching Employees’ Welfare Association. It is also contended by the petitioner that once he was transferred outside the Campus, he could not remain Member of the Non-Teaching Employees’ Welfare Association. It was also averred by the petitioner that number of posts of Senior Assistants were lying vacant in the Forestry Department of the Campus with the appellant-University. Learned Single Judge allowed the writ petition on 29.6.2010 and the transfer order was quashed and set aside. Hence, the present Letters Patent Appeal. 4. Mr. Onkar Jairath has vehemently argued that the transfer of the petitioner was made in larger public interest and not to victimize the petitioner. He also contended that the scope of judicial review in transfer matters is very limited. 5. Mr. Ajay Mohan Goel has supported the judgment dated 29.6.2010. 6. We have heard the learned counsel for the parties and have gone through the pleadings meticulously. 7. Petitioner had been working in the appellant-University for more than 26 years. The University has taken a conscious decision to merge the Department of Fruit Breeding and Genetic Resources in the Department of Fruit Science vide notification dated 4.5.2010. It is in these circumstances that the petitioner was transferred from Campus to Horticulture Research Centre, Bajoura. It is for the employer to decide where a particular employee has to be posted. The Court will not substitute its own judgment for the wisdom of the department while taking administrative decision. 8. The Non-Teaching Employees’ Welfare Association, Solan is not constituted under any Statute. Moreover, the office bearers of the Non-Teaching Employees’ Welfare Association have not been given any statutory right as per University Act and the Statue framed there-under not to be transferred. 8. The Non-Teaching Employees’ Welfare Association, Solan is not constituted under any Statute. Moreover, the office bearers of the Non-Teaching Employees’ Welfare Association have not been given any statutory right as per University Act and the Statue framed there-under not to be transferred. It is true that as per sub-clause (iii) of clause 3 of the Constitution of the Non-Teaching Employees’ Welfare Association, an employee to be the Member of the Association should be non-teacher working/serving in the main Campus. The contention of the petitioner that in case he is transferred outside the Campus, he would cease to be Member of the Non-Teaching Employees’ Welfare Association is accepted, in that eventuality no ministerial staff of appellant-University can be transferred outside the Campus. Rather, Research Centres are also to be treated as extension of Campus, otherwise employees in Research Centres cannot become the Members of the Welfare Association. The transfer is an incidence of service and the University/Authority has the power to transfer an employee in public/administrative interest. We have also noticed that the petitioner has been transferred after the Department of Fruit Breeding and Genetic Resources was merged in the Department of Fruit Science. It cannot be presumed that the decision has been taken only to oust the petitioner from the main Campus of the University being the President of the Association. Petitioner has not challenged the decision of merger. 9. The Court on 11.8.2010 had directed the Vice- Chancellor of the appellant-University to take a fresh decision in the matter. The Vice-Chancellor has taken a conscious decision on 27.8.2010. He has observed that the petitioner could be adjusted at Regional Horticultural Research Station, Mashobra against the vacant post of Senior Assistant. The Vice- Chancellor has passed a speaking order after taking into consideration all the pros and cons of the matter. It is for the University to decide where Jagdish Sharma was to be transferred. It is not for the courts to suggest where a particular employee should be posted. Thus, the findings given by the learned Single Judge that the petitioner could be easily accommodated at Campus are liable to be set aside. The term of the petitioner as President of the Association has come to an end on 30.4.2010 and the petitioner has been transferred only on 4.5.2010 and on this date, he was not the office bearer. Thus, the findings given by the learned Single Judge that the petitioner could be easily accommodated at Campus are liable to be set aside. The term of the petitioner as President of the Association has come to an end on 30.4.2010 and the petitioner has been transferred only on 4.5.2010 and on this date, he was not the office bearer. The conditions of service of the petitioner are to be regulated under the University Act and the Statute framed there-under and not by the constitution of the Non-Teaching Employees’ Welfare Association. Transfer has no civil consequences. Neither the petitioner has lost his seniority or avenues for promotion. He has been transferred against the equivalent post. 10. The Apex Court in Gujarat Electricity Board and another versus Atmaram Sungomal Poshani, (1989) II SCC 602 has held that employee has no right to be posted at a particular place. The Apex Court has further held that it is necessary in public interest and efficiency in public administration. The Apex Court has held as under: “4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.” 11. The Apex Court in Union of India and others versus S.L. Abbas, (1993) 4 SCC 357 has held that authority is not obliged to justify the transfer by adducing the reasons therefor. The Apex Court has further held that the transfer order unless is mala fide or is made in violation of statutory provisions Court/Tribunal cannot interfere. The Apex Court has held as under: “6. An order of 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 any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. 7. 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. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. 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. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. 8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323-A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).” 12. Learned Single Judge of Karnataka High Court in Vijaya Bank Officers Congress (Regd.) and others versus Vijaya Bank, 1993 Lab.I.C. 1781 has not interfered in the transfer order of employees, who were office bearers of the union. Learned Single Judge has held as under: “32. After perusing the records and also the authorities relied upon by both sides, I am of the opinion that none of the contentions of Shri Subramanya Jois, learned counsel for the petitioners has any merit. Learned Single Judge has held as under: “32. After perusing the records and also the authorities relied upon by both sides, I am of the opinion that none of the contentions of Shri Subramanya Jois, learned counsel for the petitioners has any merit. The appointments of these petitioners were made by the respondent bank who is an authority as such the terms of appointment and other conditions are subject to service regulations including the policy evolved after bilateral discussion that took place between the employer and the recognised union. Hence, it is not open to the petitioners to contend that they are not liable to be transferred on the ground that they are also office bearers of the Congress. If the contention of the petitioners that no office-bearers of union is liable to be transferred is accepted then it is impossible for the management to transfer any officers outside Karnataka, because a few officers themselves forming a union can say that they have been elected as office-bearers and thus seek their retention. Transfer policy that each officer shall serve once in their period of service outside the State of Karnataka, as such the transfers or the petitioners cannot be held as bad or illegal.” 13. Learned Single Judge of Madras High Court in T.N.E.B. Engineer’s Sangam versus Tamil Nadu Electricity Board, 1966 L.L.J. 1071 has held that office bearers of the Trade Union can also be transferred and no mala fides can be attributed because of the transfer of office bearers of Trade Union challenging the policies of Electricity Board in certain matters. Learned Single Judge has held as under: “31. I am of the view that the transfer when it is incidence of service and is no affected by mala fide or in prejudice of an) binding rule, cannot be judicially reviewed In this case. though mala fide has beer alleged against the respondents, the same has not been proved. The petitioners' transfer is in accordance with the exigency of the situation and that it is not for this Court to enter into a roving enquiry to ascertain the precise nature of the administrative exigency and judicially review the same. It is not in dispute that the transfer has been effected by an authority who is competent to effect such transfers. I have already rejected the contention of Mr. It is not in dispute that the transfer has been effected by an authority who is competent to effect such transfers. I have already rejected the contention of Mr. K. Chandru that the impugned order of transfer is said to have been made mata fide because the petitioners held offices in their Sangam, and had agitated against the policies of the respondents in certain matters. It is also not the case of the petitioners that there is any loss of emoluments or loss of status because of the transfer. It is not their case that the transfer amounts to reduction in rank either. Transfer of a public servant made on administrative grounds or on public interest should not normally be interfered with unless there are strong and compelling circumstances rendering the transfer order improper and unjustifiable. The petitioners have not made out any case for interfering with the impugned orders of transfer. It is also very clearly stated by the respondents that all the three petitioners have already been relieved and that substitutes have been posted in their place. There are no merits in these three writ petitions.” 14. The Apex Court in National Hydroelectric Power Corporation Limited versus Shri Bhagwan, (2001) 8 SCC 574 has held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place. The Apex Court has further held that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine. The Apex Court has held as under: “5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. The Apex Court has held as under: “5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4. 1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance.” 15. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance.” 15. The Apex Court in Public Services Tribunal Bar Association verses State of U.P. and another, (2003) 4 SCC 104 has held that the transfer is an incidence of service and normally it is not to be interfered with by the courts. The Apex Court has held as under: “37. Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the Courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.” 16. The Apex Court in State of Rajasthan and others versus Anand Prakash Solanki, (2003) 7 SCC 403 has held that the transfer is an incidence of service and can be exercised by the employer unless expressly barred. The Apex Court has held as under: “13. The scheme of the Act does not prohibit or exclude the exercise of power to transfer the President or members from one District Forum to another District Forum within the State. Power to transfer vests in the State Government as employer and is available to be exercised on the recommendation of committee contemplated by sub-section (1A) of Section 10 of the Act. The view to the contrary taken by the High Court cannot be countenanced.” 17. The Apex Court in State of U.P. and another versus Siya Ram and another, (2004) VII SCC 405 has held that transfer is not only an incident of service, but a condition of service. The Apex Court has further held that whether transfer was in the interest of public service, requires adjudication on the basis of peculiar facts and circumstances of the case and the High Court should not go into this while exercising the powers under Articles 226 and 277 of the Constitution of India. The Apex Court has held as under: “5. The High Court while exercising jurisdiction under Arts. The Apex Court has held as under: “5. The High Court while exercising jurisdiction under Arts. 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer as shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and another ( 2001 (8) SCC 574 ). 6. The above position was recently highlighted in Union of India and others v. Janardhan Debanath and another (2004 (4) SCC 243). It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.” 18. The Apex Court in State of U.P. and others versus Gobardhan Lal, (2004) XI SCC 402 has held that the transfer order should not be normally interfered with except when transfer order is shown to be vitiated by mala fides or in violation of any statutory provision or having been passed by an authority not competent to pass such an order. The Apex Court has held as under: “7. The Apex Court has held as under: “7. 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 indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an 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 policies 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 service 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 riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.” 19. The Apex Court in Kendriya Vidyalaya Sangathan versus Damodar Prasad Pandey and others, (2004) XII SCC 299 has held that in the absence of arbitrariness, mala fides or violation of any operative guidelines or rules, court’s interference with order of transfer not called for. The Apex Court has held as under: “4. Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa, 1995 (Suppl) 4 SCC 169). Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa, 1995 (Suppl) 4 SCC 169). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India v. S.L. Abbas, AIR 1993 SC 2444 . Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of operative any guidelines or rules the Courts should not ordinarily interfere with it. In Union of India and Ors. v. Janardan Debanath and Anr. (2004) 4 SCC 245 it was observed as follows: "No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 ". 20. The Apex Court in Rajendra Singh and others versus State of Uttar Pradesh and others, (2009) XV SCC 178 has held that in the matter of transfer, the scope of judicial review is very limited. The Apex Court has held as under: “8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. The Apex Court has held as under: “8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402 ].” 21. The Apex Court in Registrar General, High Court of Judicature of Madras versus R. Perachi and others, (2011) XII SCC 137 has held that one cannot make a grievance if transfer is made on administrative grounds and without attaching any stigma. The Apex Court has further held that the courts cannot interfere with order of transfer lightly since courts cannot substitute their own decisions in the matter. The Apex Court has held as under: “21. We have considered the submissions of both the counsel. As far as the action of transfer against the first respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the appellant in his district was undesirable from the point of view of administration. Thus, it involved inter- district transfer. The respondent no.1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case. 22. In the context of transfer of a govt. servant we may refer to the dicta of this Court in N.K. Singh Vs. Union of India reported in [ AIR 1995 SC 423 ] where this Court observed in para 22 as follows:- "22..... 22. In the context of transfer of a govt. servant we may refer to the dicta of this Court in N.K. Singh Vs. Union of India reported in [ AIR 1995 SC 423 ] where this Court observed in para 22 as follows:- "22..... Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated." 23. In State of Madhya Pradesh Vs. S.S. Kourav reported in [ AIR 1995 SC 1056 ], the Administrative Tribunal had interfered with the transfer order of the respondent and directed him to be posted at a particular place. It is relevant to note that while setting aside the order of the tribunal this Court observed in para 4 of its judgment as follows:-"4......The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place." 24. We may mention that this Court has reiterated the legal position recently in Airports Authority of India Vs. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place." 24. We may mention that this Court has reiterated the legal position recently in Airports Authority of India Vs. Rajeev Ratan Pandey reported in [ 2009 (8) SCC 337 ] that `in a matter of transfer of a govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.” 22. Accordingly, in view of the observations and analysis made hereinabove, the Letters Patent Appeal is allowed. The judgment of the learned Single Judge dated 29.6.2010 is set aside. Pending application(s), if any, also stands disposed of. No costs.