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2016 DIGILAW 1410 (HP)

H. K. Sarwata v. State of Himachal Pradesh

2016-07-16

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This writ petition has been preferred against the order passed by the learned Central Administrative Tribunal (for short ‘Tribunal’) on 29.03.2016 whereby the Original Application filed by the petitioner against his transfer orders came to be dismissed in limine. 2. Briefly stated the facts as are necessary for the determination of the instant petition are that the petitioner in the year 1992 joined the service of the respondent-State as Assistant Conservator of Forests and thereafter during the year 2005 was inducted in the cadre of Indian Forest Service (for short ‘IFS’). Vide order dated 11.06.2014, the petitioner was transferred from the post of DFO, Mandi to the post of DFO (T), Bilaspur, however, thereafter vide impugned notification dated 16.03.2016 was ordered to be transferred from DFO (T), Bilaspur as DFO (Flying Squad),North Bilaspur. 3. The aforesaid notification was assailed by the petitioner by filing an Original Application before learned Tribunal wherein it was contended that this notification was issued in violation of the judgment rendered by the Hon’ble Supreme Court in T.S.R. Subramanian and others versus Union of India and others (2013) 15 SCC 732 fixing therein a minimum tenure of two years to all the incumbents of the All India Service. It was also alleged that in compliance of the aforesaid judgment, the Civil Service Board has though been constituted vide notification dated 10.04.2015, but its recommendations have not been obtained before issuing the impugned notification. It was also averred that the post of DFO (Flying Squad) is not a cadre post and is meant for Junior Officers or the State Forest Service Officers and that the impugned notification had been issued at the instance of the forest mafia because the petitioner was tightening the noose on illegal felling of ‘Khair’ trees. Lastly, it was contended that no reasonable opportunity of being heard has been afforded to the petitioner before issuance of the impugned notification. 4. The Original Application came up for consideration before learned Tribunal on 29.03.2016 and without even calling for the reply and after recording detailed reasons was ordered to be dismissed in limine. 5. Lastly, it was contended that no reasonable opportunity of being heard has been afforded to the petitioner before issuance of the impugned notification. 4. The Original Application came up for consideration before learned Tribunal on 29.03.2016 and without even calling for the reply and after recording detailed reasons was ordered to be dismissed in limine. 5. Aggrieved by the orders passed by learned Tribunal, the petitioner has approached this Court by raising the same contentions as were raised before learned Tribunal and has prayed for the following substantive reliefs:- “(i) That the impugned order dated 29.3.2016, Annexure P-12, passed by the Ld. Central Administrative Tribunal, Chandigarh Bench, in OA No. 063/00023/2016 may kindly be set-aside and quashed and the OA, filed by the petitioner, may kindly be allowed, as prayed for. (ii) Order of transfer dated 16.3.2016 Annexure P-9, may kindly be held wrong, illegal, arbitrary, malafide as well as in violation of transfer policy of the respondent-State and also as a result of colourable exercise of powers and the same may kindly be set aside and quashed.” 6. Respondent No.1 in its reply has justified its stand of transferring the petitioner on account of public interest and administrative exigencies. As regards the judgment of the Hon’ble Supreme Court in T.S.R. Subramanian’s case (supra), it is stated that the Ministry of Personnel Public Grievances and Pension has already issued a notification dated 28.01.2014 and constituted a Civil Service Board for recommendations of transfer and postings of IAS/IPS/IFS Officers of the Himachal Pradesh cadre vide notification dated 10.04.2015. It is further averred that insofar as the case of the petitioner is concerned, ex-post-facto approval/recommendations of the said Board had specifically been obtained and minutes of such approval have also been annexed with the reply as Annexure R-1. With respect to the allegation of minimum tenure of service, respondents have justified their stand by relying upon the reasons as accorded by learned Tribunal and in addition thereto it has been averred that the question of completion of two years in the instant case does not arise as the petitioner has infact not been transferred and is rather posted at the same station though on a different post. As regards, the cadre of the posts, it has been clarified that the posts i.e. DFO (Flying Squad) and DFO (T) are both equivalent posts and, therefore, it is not correct on the part of the petitioner to suggest that IFS Probationers have been posted in the cadre posts by shifting two HPFS Officers. It has also been mentioned that it is only sometimes that due to non-availability of IFS cadre Officers that the posts are manned by the State Forest Officers. It also stands clarified that the petitioner alone is not the only IFS Officer to hold this post. We have heard the learned counsel for the parties and also gone through the material placed on record. 7. At the outset, it may be observed that it is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to “proper place”. It is for the administration to take appropriate decision. 8. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to “proper place”. It is for the administration to take appropriate decision. 8. Even the 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. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by malafides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees. 9. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary. 10. Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary. 10. Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer is passed bona-fide or as a measure of punishment. 11. Reverting back to the case, it would be noticed that learned Tribunal has dealt with each of the grounds raised by the petitioner as would be evident from the relevant portion of the order which reads thus:- “5. We have carefully considered the matter. We find ourselves unable to accept the contentions raised on behalf of the applicant. The applicant has already served as DFO, Bilaspur for more than one year nine months. In other words, he is only a little short of completing his tenure of two years as DFO, Bilaspur. Consequently, the impugned transfer order is not vitiated merely because the applicant has had a little short of two years tenure. 6. The plea that the post of DFO (Flying Squad) is noncadre post is also untenable. Counsel for the applicant referred to notification (Annexure A-3) in support of this contention. However, in this notification, even the post of DFO, Bilaspur is not mentioned as cadre post. Faced with this situation, it was pointed out that the post of DFO (Territorial) Bilaspur is equivalent to Deputy Conservator of Forests (DCF), (Territorial) Bilaspur which is a cadre post as per notification (Annexure A-3). However, if post of DFO, (Territorial) Bilaspur is equivalent to DCF, (Territorial) Bilaspur, then the post of DFO (Flying Squad) cannot be said to be a non-cadre post because the said post would also be equivalent to the post of Deputy Conservator of Forests. There is no material on record to depict that the post of DFO (Flying Squad) is non-cadre post or is meant for Junior Officers or for State Forest Service Officers. 7. There is no material on record to depict that the post of DFO (Flying Squad) is non-cadre post or is meant for Junior Officers or for State Forest Service Officers. 7. Since the applicant had almost completed his tenure as DFO Bilaspur, the impugned transfer order is, therefore, not vitiated for not obtaining the recommendation of the Civil Services Board before issuing the impugned transfer order. 8. As regards action against Forest Mafia allegedly being taken by the applicant, reliance has been placed on letter dated 16.03.2016 (Annexure A-5) written by the applicant. However, the impugned transfer order is also of the same date. Consequently, it cannot be said that the applicant has been transferred in view of action initiated by the applicant vide letter dated 16.03.2016. On the other hand, as DFO (Flying Squad), the applicant would be in a much better position to check the illegal activities of the Forest Mafia. 9. No opportunity of hearing was required to be given to the applicant before issuing the routine transfer order. 10. We may add that Courts/Tribunals are reluctant to interfere with transfer order passed by the Administrative Authorities unless there are very special reasons for interfering with transfer order. In the instant case, however, there is no reason much less special reason for interfering with the impugned transfer order.” 12. The learned counsel for the petitioner would, however, vehemently harp upon the plea that the orders of transfer of the petitioner are in violation to the judgment rendered by the Hon’ble Supreme Court in T.S.R. Subramanian’s case (supra) as the same have been passed before permitting him to complete mandatory service of two years at one station i.e. DFO (T), Bilapsur. 13. In order to appreciate the contention of the petitioner, we may now refer to the case of T.S.R. Subramanian’s case (supra) upon which heavy reliance has been placed by the learned counsel for the petitioner. The Hon’ble Supreme Court in the aforesaid case was dealing with batch of cases of civil servants, who were working in the Centre and the State Governments and were not having any stability of tenure, particularly, in the State Governments where transfers and postings were being made frequently at the whims and fancies of the executive head for political and other considerations and not in public interest. It was in this background that the Hon’ble Supreme Court considered the necessity of fixing a minimum tenure for civil services not only to enable them to achieve their professional targets but also help them to function as effective instruments of public policy, as would be evident from the following observations which read thus:- “35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society. 36. We, therefore, direct the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months.” 14. While placing strong reliance on the aforesaid judgment, the petitioner appears to have completely lost sight of the fact that in his case approval of the Civil Service Board has already been obtained by the respondent by way of ex-post-facto approval/recommendations and this action on their part has neither been questioned nor assailed by the petitioner. Therefore, in such circumstance, the petitioner is estopped by his own act and conduct from challenging the orders of transfer on the ground of violation of the directions contained in T.S.R. Subramanian’s case (supra). 15. As regards the contention that the petitioner has been transferred to a non-cadre post, even this contention is equally without merit as the respondent in their reply have categorically stated that the posts of DFO (Flying Squad) is equivalent to that of DFO (T), Bilaspur and have further clarified that the petitioner alone is not the single IFS Officer, who has held this post. 16. 16. It would also be noticed that the petitioner has though averred that the order of transfer is the result of colourable exercise of powers, but we find that the element of malice or malafide is conspicuously absent in the petition filed before this Court as also in the Original Application filed before the learned Tribunal. 17. It is more than settled that unless the order of transfer is shown to be an outcome of malafide exercise of powers and stated to be in violation of the statutory provisions prohibiting any such transfer, the Courts or the Tribunal cannot interfere with such orders as a matter of routine, as though they are appellate authorities substituting their own decisions for that of the employer as against such orders passed in the interest of administrative exigencies of the service concerned. 18. On the basis of what has been observed above, we have no difficulty in concluding that the instant petition appears to have been filed by the petitioner to satiate his ego more than anything else as it is really appalling to note that despite the petitioner having been transferred as far as back on 16.03.2016, he has not cared to even join his place of posting despite it being not only at the same station but in the same Office Complex. 19. It only needs to be reiterated that whenever a public servant is transferred, in the first place, he cannot disobey the order by not reporting at the place of posting and then go to the Court to ventilate his grievances. It was the duty of the petitioner to first report to work where he has been transferred and then make a representation regarding his personal problems. 20. Such tendency of not reporting at the place of posting and indulging in litigation needs to be curbed as has been observed by the Hon’ble Supreme Court in S.C. Saxena versus Union of India and others (2006) 9 SCC 583 wherein it was held as under:- “6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed..........” (Underlining supplied by us) 21. To say the least, such litigious and cantankerous litigation ill behoves the petitioner, who otherwise belongs to the higher echelons of service. 22. In view of the aforesaid discussion and for the reasons so stated, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.