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2020 DIGILAW 378 (HP)

Jagdish Chand v. State of H. P.

2020-07-01

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

body2020
JUDGMENT : Tarlok Singh Chauhan, J. 1. Aggrieved by the Transfer Order, dated 16.6.2020 (Annexure P5), the Petitioner has filed the instant Petition for the grant of following substantive relief: (i) That the impugned Transfer Order, dated 16.6.2020 (Annexure P5), may kindly be quashed and set aside. 2. The Petitioner was initially appointed as Lecturer (History) on 21.11.1994 and served at different places. In the year 2013, he was appointed as Principal, DIET and was lastly posted as Principal, DIET at Hamirpur. Now, vide impugned Notification dated 16.6.2020 (Annexure P5), the Petitioner has been ordered to be transferred to the office of Deputy Director Elementary Education (Inspection Cell), Hamirpur. 3. It is vehemently contended by Mr. Anup Rattan, learned Counsel for the Petitioner that the impugned transfer has been made on the basis of D.O. Note issued by Respondent No. 2 and thus, the Transfer Order is liable to be set-aside in view of the law laid down by this Court in C.W.P. No. 1551 of 2017 titled as Prem Thakur v. State of H.P. and others. 4. Another contention put-forth by the Petitioner is that being an Employee of the Higher Education Department, the Petitioner cannot be sent on deputation to the Elementary Education without his consent. 5. Lastly, it was contended that there is no Public interest or administrative exigency involved in the transfer, therefore, being a colourable exercise of power, the same is liable to be quashed and set-aside. 6. We have heard the learned Counsel for the parties and have gone through the records of the case. 7. 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. 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. 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. 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. 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 & 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 passed is bona fide or as a measure of punishment. 11. 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 v. State of Tamil Nadu, 1914 (4) SCC 3; B. Varadha Rao v. State of Karnataka, 1986 (2) LLN 753 (SC) : 1986 (4) SCC 131 ; Union of India and others v. H.N. Kirtania, 1989 (2) LLN 279 (SC) : 1989 (3) SCC 445 ; Shilpi Bose and others v. State of Bihar and others, 1992 (1) LLN 7 (SC) : 1991 Supp (2) SCC 659; Union of India and others v. S.L. Abbas, 1993 (2) LLN 473 (SC) : 1993 (4) SCC 357 ; Chief General Manager (Telecom) N.E. Telecom Circle and another v. Rajendra C.H. Bhattacharjee and others, 1995 (1) LLN 861 (SC) : 1995 (2) SCC 532 ; State of M.P. and another v. S.S. Kourav and others, 1995 (2) LLN 118 (SC) : 1995 (3) SCC 270 ; Union of India and others v. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; Abani Kanta Ray v. State of Orissa and others, 1995 Supp. (3) SCC 214; Abani Kanta Ray v. State of Orissa and others, 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Shiv Prakash, 2001 (4) LLN 753 (SC) : 2001 (4) CTC 573 (SC) : 2001 (8) SCC 574 ; Public Services Tribunal Bar Association v. State of U.P. and another, 2003 (1) LLN 784 (SC) : 2003 (4) SCC 104 ; Union of India and others v. Janardhan Debanath and another, 2004 (2) LLN 32 (SC) : 2004 (4) SCC 245 ; State of U.P. v. Siya Ram, 2004 (3) LLN 1244 (SC) : 2004 (7) SCC 405 ; State of U.P. and others v. Gobardhan Lal, 2004 (4) LLN 24 (SC) : 2004 (11) SCC 402 ; Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and others, 2004 (4) LLN 783 (SC) : 2004 (12) SCC 299 ; Somesh Tiwari v. Union of India and others, 2009 (2) SCC 592 ; Union of India and others v. Muralidhara Menon and another, 2009 (9) SCC 304 ; Rajendra Singh and others v. State of Uttar Pradesh and others, 2010 (2) CTC 575 (SC) : 2009 (15) SCC 178 ; and State of Haryana and others v. Kashmir Singh and another, 2011 (1) CWC 189 (SC) : 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 mala fides are established. 7. In case of mala fides, the Employee has to make specific averments and should prove the same by adducing impeccable evidence. 8. 7. In case of mala fides, the Employee has to make specific averments and should prove the same by adducing impeccable evidence. 8. The person against whom allegations of mala fide 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." 12. Adverting to the first contention of the Petitioner that the transfer has been effected on the basis of D.O. Note, no details regarding any such D.O. Note have been given in the Petition. However, in order to satisfy with the contention, we called for the record of transfer, which reveal that the transfer of the Petitioner has not been effected on the basis of D.O. Note rather the same is without obtaining his consent in the Public interest. 13. As regards the second contention of the Petitioner that he has been sent on deputation, we again do not find any merit in such contention as the Order of Transfer in no way indicates that the services of the Petitioner in the office of Deputy Director, Elementary Education are on deputation basis. 14. In addition to the aforesaid, the Respondent-Department vide Notification, dated 14.9.2005 has amended the Recruitment and Promotion Rules for the post of Deputy Director of Education (School and Plus Two) 1992, the post on which the Petitioner has been ordered to be transferred clearly provides that the said post can be filled up by transfer/placement from amongst the Principals of Govt. Senior Secondary Schools and DIETs (Secondary/Primary) belonging to Headmasters cadre. 15. The Rule nowhere makes a distinction amongst the Principals aforesaid working in the Govt. Senior Secondary Schools and DIETs (Secondary/Primary). Senior Secondary Schools and DIETs (Secondary/Primary) belonging to Headmasters cadre. 15. The Rule nowhere makes a distinction amongst the Principals aforesaid working in the Govt. Senior Secondary Schools and DIETs (Secondary/Primary). The Petitioner had been working as Principal, Government Senior Secondary School and thereafter Principal, DIET and, therefore, he can be transferred and posted against the vacant post of Deputy Director (Inspection Cell). 16. As regards the last contention of the Petitioner regarding there being no administrative exigency or Public interest involved in the impugned transfer, as observed above, the transfer of the Petitioner has been ordered in the Public interest. 17. In view of the aforesaid discussions and for the reasons stated above, we find no merit in this Petition and the same is accordingly dismissed, so also the pending application(s), if any. The parties are left to bear their own costs.