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2021 DIGILAW 305 (HP)

Vinod Kumar v. State Of H. P. & Ors.

2021-05-07

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT Tarlok Singh Chauhan, J. - The petitioner was appointed as Veterinary Officer on 17.6.2003 and served at various places in the State. He was put under suspension on 3.7.2020 and his headquarter was fixed at office of Deputy Director, Animal Health/Breeding, Kullu. Since the order of suspension was not reviewed for more than 6 months, the petitioner preferred a writ petition being CWP No. 555/2021 with the following reliefs: 1. Quashing of suspension orders dated 3.7.2020 on its merits and treatment of suspension period as duty period. 2. Quashing of memorandum dated 31.8.2020 on its merits where the articles of charges were served to the petitioner. 3. Quashing of order dated 21.12.2020 issued by the Joint Director, Animal Husbandry, Palampur for fresh preliminary inquiry already covered in aforesaid articles of charges. 4. Inquiry of financial irregularities as reported by the petitioner through an independent investigating agency. 2. The aforesaid petition was disposed of by this Court vide its judgment dated 15.3.2021, relevant portion whereof reads as under: "2. ...... Before parting, having taken note of the fact that Head Quarter of the petitioner has been fixed at Kullu for the purpose of departmental inquiry, this Court hopes and trusts that representation, if any, filed by the petitioner for his transfer to some place near to Kullu/Mandi, shall be considered sympathetically by the competent authority so that it becomes convenient for the petitioner to attend departmental proceedings at Kullu, H.P." 3. The petitioner was relieved of his duties from Kullu on 19.3.2021 with a direction to join at Veterinary Hospital, Sandhol. After the petitioner joined at Sandhole on 20.3.2021, he received an e-mail directing him to join at CVD Laila Nursery, District Shimla, H.P., immediately. 4. The petitioner preferred a representation dated 22.3.2021, which came to be rejected vide order dated 27.4.2021 and aggrieved thereby, he has filed the instant petition for grant of following substantive reliefs: 1. That the transfer order dated 10.3.2021 issued by the respondent No.1 may kindly be quashed including any other order issued by respondent No.1 in continuation of aforesaid order dated 10.3.2021 may also be pleased be quashed. 2. That the relieving order dated 20.3.2021 issued by the respondent No.3 may kindly be quashed and the respondent No.3 may kindly be directed to release the salary of the petitioner for the period March 2021 and onwards. 3. 2. That the relieving order dated 20.3.2021 issued by the respondent No.3 may kindly be quashed and the respondent No.3 may kindly be directed to release the salary of the petitioner for the period March 2021 and onwards. 3. That the order dated 27.4.2021 issued by respondent No.1 may kindly be quashed including any other order issued by respondent No.1 in continuation of aforesaid order dated 27.4.2021 may also pleased be quashed. 4. That the due and admissible salary be released to the petitioner forthwith. 5. We have heard the learned counsel for the petitioner and have gone through the matter placed on record; and find no reason whatsoever to interfere with the order of transfer. 6. No doubt, this Court, in an earlier petition being CWP No. 555/2021, had directed the respondents to consider the case of the petitioner regarding his posting sympathetically, but the petitioner has no indefeasible right of posting at the station of his choice near to Kullu or Mandi when the Inquiry Officer, Dr. Anupam Mittal, Joint Director, is posted at Headquarters, Shimla. 7. It would be evident from the rejection order dated 27.4.2021 that the petitioner's case infact has been considered sympathetically and he has been ordered to be posted at CVD Laila Nursery, District Shimla after keeping in view his convenience since the Inquiry Officer is stationed at Shimla as is evident from para 4 of the consideration order, which reads as under:- "AND, whereas after careful consideration of the facts & circumstances, it has been observed that the Government has initiated a Departmental inquiry against Dr. Vinod Kumar Veterinary Officer & the Inquiry Officer i.e. Dr. Anupam Mittal Joint Director (H.Qr.) Shimla has been appointed as Inquiry Officer vide order No. AHY-B(3)-27/12 dated 3.2.2021. In view of the above and to facilitate the charged officer i.e. Dr. Vinod Kumar his posting has been fixed at CVD Laila Nursery, District Shimla for his convenience." 8. Issue of transfer and posting has been considered time and again by the Hon'ble Supreme Court as also this Court and entire law has been settled by catena of decisions. 9. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident, but an essential condition of service. 9. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident, but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. 10. Normally, the Courts will be loath to interfere with the order of transfer, particularly, when it is made in public interest or in administrative exigency. 11. It has been repeatedly held by the Hon'ble Supreme Court that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on the ground of malafides. 12. It is more than settled that the challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as they are Appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises; except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. 13. 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. 14. 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. 15. 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. 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. 16. 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. 17. 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. 18. Notably, the only ground urged by the petitioner to assail the transfer order is that he is being victimized because he had filed a contempt petition against the respondents when the judgment dated 20.3.2021, that was passed in the earlier petition being CWP No. 555/2021, was being violated by the respondents. 19. However, we find nothing on record, which may remotely substantiate the allegations levelled by the petitioner as prima facie the order of transfer has been passed looking to the convenience of the petitioner. 20. It is entirely a different matter that the petitioner is readily not accepting version putforth by the respondents, which in itself is no ground to interfere with the impugned order. 21. In view of the aforesaid discussions and for the reasons stated above, we find no ground to issue notice in this petition and consequently, the petition is dismissed in limine, so also the pending application(s), if any. No order as to costs.