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2013 DIGILAW 323 (HP)

ANJANA SOOD v. STATE OF H. P. THROUGH SECRETARY

2013-04-18

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGEMENT SURINDER SINGH, J. 1. THE petitioner is a College Lecturer in Economics. On 25.6.2010, she was transferred to Government College Kotshera (Shimla) and worked there till July, 2012, where after she stands transferred vide order dated 2nd July, 2012 (Annexure P-3) which is under challenge, on the grounds that she was not allowed to complete her normal tenure of three years, whereas it was done only to adjust the private respondent, who pursuant to the earlier orders on transfer did not join in SCERT Solan, but in turn got adjusted at RGDC, Kotshera in her place. It is also her case that she has been doing Ph. D and was on study leave. She appeared in viva-voce test on 4.7.2012. The petitioner was not relieved but the private respondent joined in RGDC Kotshera against a non-existent post. 2. NO interim order was granted. However, on 5.7.2012, this Court sought to clarify in reply by the State respondent why the transfer of the private respondent from Shimla to Solan was cancelled and then adjusted at Shimla and further that incumbency of both i.e. the petitioner and private respondent be also given. 3. THE respondents No.1 and 2 in compliance to the order aforesaid in their reply highlighted the incumbency of the petitioner and the respondent No.3 as follows:- I. Ms. Anjana Sood, Petitioner: Sr. No. Name of the Institution From To 1. SCERT Solan 7.12.2006 16.10.2009 2. G.C. Solan 17.10.2009 24.06.2010 3. G.C. Kotshera, Shimla 25.6.2010 July, 2012 II. Ms. Anju Sharma, Respondent No.3: Sr. No. Name of the Institution From To 1. G.C. Una 26.3.1999 1.4.2004 2. G.C. Sanjauli, Shimla 2.4.2004 10.6.2010 3. G.C. Kotshera, Shimla 11.6.2010 28.6.2010 4. G.C. Solan 29.6.2010 May, 2011 5. R.K.M.V. Shimla May, 2011 July, 2012 The above chart shows that both the teachers hovered in and around Shimla, asserting their first right to be posted in Shimla itself whereas others, who do not have any push or pull are posted at far off places. G.C. Kotshera, Shimla 11.6.2010 28.6.2010 4. G.C. Solan 29.6.2010 May, 2011 5. R.K.M.V. Shimla May, 2011 July, 2012 The above chart shows that both the teachers hovered in and around Shimla, asserting their first right to be posted in Shimla itself whereas others, who do not have any push or pull are posted at far off places. The respondent-State submitted in their reply that one Smt. G.P. Kapoor, Lecturer (Economics) had completed her secondment tenure at HIPA, Shimla who was required to be adjusted in any college in Shimla being a couple case, thus she was posted at RKMV Shimla vice private respondent, who was further transferred to SCERT, Solan being a couple case as her husband was working in Solan after getting the approval from the competent authority. Subsequently, the competent authority approved the posting of the private respondent in Government College Kotshera, which necessitated the transfer of the petitioner to SCERT Solan having long stay in Shimla being the senior-most Lecturer. It is also submitted that w.e.f. 7.12.2006 to 16.10.2009, when the petitioner was transferred to SCERT Solan, she remained on study leave w.e.f. 15.12.2006 to 16.12.2008 and worked only for 10 months. 4. WHEREAS, the private respondent vide supplementary affidavit-reply dated 4.9.2012 submitted that her husband remained in Indian Army w.e.f. 1982 to 1991. After Military service, he got appointed as Regional/ Zonal Security Officer in Punjab National Bank at Jallandhar. Thereafter, on appointment to HAS, he remained posted at various places in Himachal Pradesh, as indicated in para 1(iii) of the reply, whereas, she was posted at Una from March,1999 to March, 2004 and got an opportunity to stay with her husband at Una during this period only. Further during his posting at Shimla, she remained with her husband for one year and six months. Thereafter she was transferred when her daughter was studying in 10+2 standard and was to appear in the examination in December, 2012. It was then she represented again for mutual transfer on the ground that the study of her daughter would be adversely effected, which was allowed by the competent authority. It is also submitted that the petitioner is still residing at Solan in a rented accommodation, whereas her husband is posted at Chandigarh and even her son is also studying in Chandigarh, which is otherwise nearer to Solan. The matter was heard by this Court on 31.7.2012. It is also submitted that the petitioner is still residing at Solan in a rented accommodation, whereas her husband is posted at Chandigarh and even her son is also studying in Chandigarh, which is otherwise nearer to Solan. The matter was heard by this Court on 31.7.2012. It was in that context that the Division Bench headed by Hon'ble Mr. Justice Deepak Gupta as he then was, sought information from the State with regard to the manner in which the lady employees of the State, especially those who are closely related to high officials, are being posted. Of course it is the employer, who is the best Judge, where to post an employee, but however, when the employer posts any employee, he must act in a fair and judicious manner. It was also observed that the Government cannot take cover of the phrase administrative exigencies to justify every transfer. If one employee is retained at an easy station for years long, then obviously there would be hurt-burn amongst other employees, which will lead to resentment and may also lead to inefficiency in service. Further, as far as possible, in cases of couples, the spouses should be adjusted together. But this Court also noticed that the husband of the private respondent was working as AC to DC, Solan and she did not want to go to Solan on the ground that her children are studying in School at Shimla and the Court was concerned what prevents her from commuting to Solan everyday. It was against this background, before passing any orders in the petition, a direction was issued to the Principal Secretary (Education) to the Government of Himachal Pradesh to file a fresh affidavit giving a list of all teachers in the Colleges working at Shimla. In the same list, their tenure at Shimla, whether in one college or in more than one college or on deputation to some other institution, was required to be clearly mentioned and in case the employee happened to be the spouse of another government official, then that fact was required to be mentioned by filing the affidavit. 5. IN compliance thereof, the requisite affidavit was filed and we are disturbed to note that most of the incumbents have manipulated to remain in and around Shimla for years together by exercising their influence on one pretext or the other. 5. IN compliance thereof, the requisite affidavit was filed and we are disturbed to note that most of the incumbents have manipulated to remain in and around Shimla for years together by exercising their influence on one pretext or the other. Since this issue was under consideration in CWP No. 5351 of 2012 and other connected matters, therefore, in the instant case, in the meantime, an endeavour was also made for adjustment of the petitioner by posting her somewhere in Shimla against a vacancy or on deputation, which did not materialize. 6. NOW CWP No. 5351 of 2012 alongwith CWP Nos. 8487, 6479, 7996, 6214 of 2012 stands decided on 9.1.2013. This Court examined the matter in the aforesaid petitions and issued certain directions in the legal backdrop to streamline the Transfer Policy to amend it latest by 28.2.2013 making it clear that any violation of these directions will be treated to be contempt of the orders of this Court. It is informed by the learned Additional Advocate General that the matter is in the process of taking appropriate steps in conformity with the judgment aforesaid, however, extension to implement the directions has been sought. 7. BE that as it may, but insofar as the matter of the present petitioner is concerned, as already stated above, her main grouse has been that she stands transferred after two years and seven days without completing her normal tenure of three years only to adjust the private respondent, whereas, the private respondent had represented to the authorities and sought her adjustment highlighting her difficulties, whereas there is no comparative difficulty to the petitioner who had been maintaining her residence at Solan and her husband and the son both are at Chandigarh, then it is not understood as to why the petitioner is against the adjustment of the private respondent. 8. THE employee has every right to represent to the department concerned, highlighting the grievances and the employer is also duty bound to consider and pass the speaking orders there upon. At the same time, the employee has no right to remain on a particular station of his choice nor he can dictate the employer as to who should be transferred at what place. As already stated, this Court has already issued a direction to amend the Transfer Policy, so that the consistency and transparency are maintained in the transfer of the employees. As already stated, this Court has already issued a direction to amend the Transfer Policy, so that the consistency and transparency are maintained in the transfer of the employees. In case, the petitioner has any grievance/ difficulty, she has a right to represent to the higher authority. The petitioner has not put-forth anything that the order of transfer is violative of statutory and mandatory rules or is malifde. In Shilpi Bose v. State of Bihar, 1992 (6) SLR 713 (SC) held as follows:- "In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest." 9. IN National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 : 2001 (4) SLR (SC), it has been held thus: "No government servant or employee of a 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 were 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." 10. IN State of U.P. v. Siya Ram, (2004) 7 SCC 405 : 2004(5) SLR 760 (SC), a two-Judge Bench of the Apex Court has opined that unless an order of transfer is shown to be malafide or is in violation of statutory provisions it is not open to interference by court. In State of U.P v. Gobardhan Lal, (2004) 11 SCC 402 : 2004(3) SLR 239 (SC), their Lordships opined that transfer is prerogative of the authorities concerned and court should not normally interfere in transfer matters unless shown to be vitiated by malafides, or is in violation of any statutory provision, or has been passed by an authority not competent to pass such an order. 11. IN Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, (2004) 12 SCC 299 : 2004 (6) SLR 189 (SC), it has been held thus: "Transfer which is an incidence of service is not to be interfered with by 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 Abani Kanta Ray v. State of Orissa, 1995 Supp (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 fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it." 12. 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 fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it." 12. IN Tushar D. Bhatt v. State of Gujarat, (2009) 11 SCC 678 : 2009(4) SLR 39 (SC) it has been ruled that transfer of an employee is an incidence of service and is made due to exigencies of service and the court would not interfere particularly unless when no malafides are shown. In view of the above, in our considered opinion the transfer cannot be lanceted by exercise of judicial review. It is obligatory on the part of the petitioner to join at the place of transfer as it is necessary in the public interest and efficiency in the public administration. If there is any genuine difficulty in proceeding on transfer, it is always open to her, as noted above, to make a representation to the competent authority for stay, modification or cancellation thereof, but there is no justification to avoid or evade the transfer order on one or the other pretext. If an employee fails to proceed for transferred place in compliance to the transfer orders, it shall be amenable to the action under the relevant rules. 13. AGAINST the aforesaid judicial pronouncements and also on the facts in hand, in our considered view, the petitioner has no case for reviewing the impugned order of transfer by this Court. Hence, the petition is dismissed, so also the pending applications, if any.