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2020 DIGILAW 365 (HP)

Pradeep Kumar v. State of Himachal Pradesh

2020-06-26

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The petitioner vide office order dated 09.06.2020 has been transferred from G.S.S.S., Arloo, District Una to G.S.S.S., Mundu, District Shimla and aggrieved thereby has filed the instant writ petition for grant of the following substantive reliefs: "i) That in view of the above mentioned facts and circumstances mentioned hereinabove, the impugned order (Annexure P-1) may kindly be quashed and set aside, in the interest of justice and fair play. ii) That the respondents may kindly be directed to allow the petitioner to work at his present place of posting i.e. GSSS Arloo, District Una, Himachal Pradesh till the final adjudication of the case." 2. The petitioner was appointed as Junior Basic Teacher (for short 'JBT') in the year 2009 and after having served at GPS Batlahu, Education Block, Bijhri, District Hamirpur, H.P., GPS Ram Nagar, Education Block, Galore, District Hamirpur, Himachal Pradesh was promoted as TGT in the year 2017 and transferred to G.S.S.S., Arloo, District Una, Himachal Pradesh and now vide order dated 09.06.2020, he has been ordered to be transferred to G.S.S.S., Mundu, District, Shimla. 3. It is contended by learned counsel for the petitioner that the impugned transfer order is illegal, unjust and has been issued only to accommodate respondent No.3. It is further contended that the order of transfer if given effect to would adversely affect the family life of the petitioner, whose wife is working as a Staff Nurse, State Government Employee, at RKGMC, Hamirpur and they have a baby girl, who is about one year and four months old and since the wife of the petitioner has been assigned night duty in the isolation ward of the hospital due to pandemic disease of COVID-19, it is the petitioner, who is to look after this baby during night time. 4. We have heard the learned counsel for the parties and have gone through the records of the case. 5. 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. 5. 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. 6. 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 redressal 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 mala fides 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. 7. However, this power must be exercised honestly, bonafide 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. 7. However, this power must be exercised honestly, bonafide 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. 8. 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 passed is bonafide or as a measure of punishment. 9. The law regarding interference by Court in transfer/posting of an employee, as observed above, is well settled and came up before the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3 ; B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131 ; Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445 ; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, (1991) Supp2 SCC 659 ; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357 ; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532 ; State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270 ; Union of India and others vs. Ganesh Dass Singh, (1995) Supp3 SCC 214 ; Abani Kanta Ray vs. State of Orissa and others, (1995) Supp4 SCC 169 ; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574 ; Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104 ; Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245 ; State of U.P. vs. Siya Ram, (2004) 7 SCC 405 ; State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402 ; Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299 ; Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592 ; Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304 ; Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178 ; and State of Haryana and others vs. Kashmir Singh and another, (2010) 13 SCC 306 and the conclusion may be summarised as under:- 1. Transfer is a condition of service. 2. It does not adversely affect the status or emoluments or seniority of the employee. 3. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time. 4. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. 5. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure. 6. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established. 7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence. 8. The person against whom allegations of malafide is made should be impleaded as a party by name. 9. 7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence. 8. The person against whom allegations of malafide is made should be impleaded as a party by name. 9. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel. 10. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer. 11. If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance. 10. Judged in light of the aforesaid principles, it would be noticed that there is nothing on record to even remotely suggest that the transfer is effected by any illegal and factual malafides or with an intention to accommodate the private respondent. Rather, the records suggest that ever-since the year 2009, the petitioner remained posted in District Hamirpur and came to be transferred only in the year 2017, that too on promotion as TGT, to District Una, where he has already completed his normal tenure of service and is thus liable to be transferred. 11. Now, adverting to the other contentions raised by the petitioner regarding the family life being disturbed. As observed above, it is more than settled that the Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer. 12. What we find more shocking is that it is the specific case of the petitioner that he has a baby sitting during night when his wife is attending her duties as a Staff Nurse. We asked the learned counsel for the petitioner whether the petitioner had taken permission to leave the station to which he replied in the negative by stating that the petitioner had been travelling to and fro daily from Hamirpur to Una and thereafter from Una to Hamirpur. We asked the learned counsel for the petitioner whether the petitioner had taken permission to leave the station to which he replied in the negative by stating that the petitioner had been travelling to and fro daily from Hamirpur to Una and thereafter from Una to Hamirpur. If that be so, we really wonder how much of time he is devoting to his job because even by shortest route, the distance between two stations is 70 kilometres and it will take atleast two hours to cover this distance. Now, in case the petitioner had been travelling to and fro, then he is spending atleast four hours only on travelling between two stations, excluding the time the petitioner would take to reach or leave his home, reach/leave the school. The petitioner is working as a TGT and is required to undertake some preparation so as to be in a position to teach the next day. 13. What is further disturbing is the fact that even though the petitioner like other servants is governed by the Service Rules including F.R. & S.R.-Part III, Leave Rules Central Civil Services (Leave) Rules, 1972. But, it appears that the Government itself has ignored the lapse of the government servant when he gets down to leaving the station without due permission. 14. It is more than settled that whole time of the government servant is at the disposal of the Government which pays him and it is for this reason that he can be employed in any manner required by the authority. 15. It shall be apposite to make note of Fundamental Rule 11, Chapter III, General Conditions of Service, which reads as under: "F.R. 11. Unless in any case it be otherwise distinctly provided, 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, without claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from general revenues, from a local fund or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government." 16. Equally settled is the proposition that a government servant is required to take proper permission for leaving station/headquarters, but even this provision is being violated with impunity despite the clarifications issued by the Central Government to this effect vide Office Memorandum No. 11013/7/04-Estt. (A) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), New Delhi, dated 18th May, 1994 and Office Memorandum No. 11013/8/2000-Estt.(A) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), New Delhi, dated 7th November, 2000, wherein it is clarified that it is implicit in these provisions i.e. Fundamental Rule 11 and Article 56 of the Civil Service Regulations that a government servant is required to take permission for leaving station/headquarters. It is, thus, clear that such permission is essential before a government servant leaves his station. 17. It is, therefore, high time that the Government issues certain guidelines by issuing instructions and fixing a limit of travelling by a government servant to and fro in connection with his job, whether by a private or public conveyance including pooled conveyance. Looking to the nature of the terrain and topography of the State, it will be well advised if the limit of one hour of travelling is fixed for one side. Meaning thereby, to and fro journey in no event should invariably not be taking more than two hours. The State may also consider laying down other related guidelines which would ensure not only the attendance of the government servant, but also ensure his maximum output in his job for which he is paid out of the State Exchequer. 18. For the reasons stated above, we find no merit in this writ petition and the same is accordingly dismissed, so also the pending application(s), if any. 19. Let a copy of this judgment be sent to the Chief Secretary to the Government of Himachal Pradesh for issuing appropriate instructions/guidelines in terms of the judgment and report compliance within three months from today. 20. For compliance, to come up on 30th September, 2020.