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Himachal Pradesh High Court · body

2014 DIGILAW 1263 (HP)

Dinesh Kumar v. State of Himachal Pradesh

2014-09-12

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. 1. Petitioner is working in Regional Hospital, Una since 2.2.2001. Petitioner is aggrieved by his transfer order dated 9.6.2014 whereby he has been transferred from Regional Hospital Una to Civil Hospital Dalhausie, Chamba. Mr. Jagdish Thakur, Advocate has vehemently argued that transfer of the petitioner is on the basis of UO No. SPS/HM/ Health 2014/582 dated 12.5.2014. However, fact of the matter is that petitioner is working in the Regional Hospital, Una since 2001. He has no vested right to remain posted at a particular place. It is for the employer to see where an incumbent is to be posted in larger public interest. Court would have definitely intervened in the matter if the petitioner had not completed normal tenure and he was being transferred only on the basis of UO letter, but it has come on record that the approval of competent authority had been obtained while transferring the petitioner. 2. The transfer is an incidence of service. It is for the employer where an employee has to be posted in public interest. The scope of judicial review in these matters is very limited. The Court can intervene only when the transfer has been made in infraction of any statutory rule or the same is actuated with malafides petitioner has not alleged any specific malafides. 3. Their Lordships of the Hon’ble Supreme Court in Airports Authority of India vs. Rajeev Ratan Pandey and others, (2009) 8 SCC 337 have held that in a matter of transfer of government employee, 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. Their Lordships have held as under:- “10. In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and 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.” 4. In a matter of transfer of a government employee, scope of judicial review is limited and 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.” 4. Their Lordships of the Hon’ble Supreme Court in Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178 have held that 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 because no Government can function in such manner. Their Lordships have further held that Government servant is liable to be transferred in the administrative exigencies from one place to the other. Their Lordships have further held that 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. Their Lordships have further held that courts are always reluctant to interfere with transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides. Their Lordships have 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. vs. Gobardhan Lal (2004) 11 SCC 402 ]. 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides. In the case of Shilpi Bose & other vs. State of Bihar & other, this Court held:- “4. 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides. In the case of Shilpi Bose & other vs. State of Bihar & other, this Court held:- “4. 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 malafide. 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-today 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. The High Court overlooked these aspects in interfering with the transfer orders.” 10. In N.K. Singh vs. Union of India & other, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of malafides or violation of any specific provisions.” 5. Their Lordships of the Hon’ble Supreme Court in Registrar General, High Court of Judicature of Madras vs. R. Perachi and other, (2011) 12 SCC 137 have held that transfer is an incident of service and one cannot make a grievance if transfer is made on administrative grounds and without attaching any stigma. Their Lordships have further held that scope of judicial review is limited and High Court cannot interfere with order of transfer lightly since courts cannot substitute their own decisions in the matter. Their Lordships have 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). Their Lordships have 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. 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 malafides 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. 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 malafides 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. 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." 6. In view of the discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending applications, if any, are also disposed of. No costs.