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2021 DIGILAW 308 (HP)

Dr. Kamal Dutta v. State Of H. P.

2021-05-10

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2021
ORDER Tarlok Singh Chauhan, J. (Oral). - Aggrieved by the order of transfer, the petitioner has filed the instant petition for the grant of following substantive reliefs: (a) Quash and set-aside the impugned transfer order passed vide Annexure P-l, dated 06.04.2021. (b) Respondents may kindly be directed to permit the petitioner to discharge his duties at Civil Hospital, Karsog. 2. The respondents have placed on record the instructions dated 07.05.2021 wherein it is claimed that in order to rationalize the health services to the people through Medical Officers specialized in the field of Surgery, the petitioner has been transferred from Civil Hospital, Karsog, District Mandi to Regional Hospital, Kullu, District Kullu because two Surgeons were posted at Civil Hospital, Karsog and, therefore, one of them had to be urgently transferred to Regional Hospital, Kullu, where there was no Surgeon. 3. It is vehemently argued by Mr. Rajiv Rai, learned counsel for the petitioner that apart from the individual interest of the petitioner, even the general public at Karsog is aggrieved by his transfer and places strong reliance on the news cuttings that have been appended with CMP No.5666 of 2021 {Annexure P-3} (colly.). 4. We are afraid that even such contention holds no water for the simple reason that it is for the employer to decide the posting of an employee and not for the Court to decide when, where and at what point of time a public servant is to be transferred from his present posting. If the people are/were aggrieved, they can approach the public representative, but such representation will have no influence on a Court of law. 5. It would be noticed that the petitioner has assailed this transfer on usual grounds of short stay, but same has not been assailed on the ground that the same has not been effected on account of administrative exigency except to the limited extent above or public interest. Moreover, there is no allegation of malafide levelled against any person(s). 6. 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. 7. 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.8. 7. 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.8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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 Supp (2) 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 DassSingh, 1995 Supp. (3) SCC 214; Abani Kanta Ray vs. State ofOrissa and others, 1995 Supp. (4) 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. (3) SCC 214; Abani Kanta Ray vs. State ofOrissa and others, 1995 Supp. (4) 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 malqfides are established. 7. In case of malqfides, 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. 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. 16. In view of the aforesaid discussion, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending miscellaneous application(s), if any.