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2022 DIGILAW 158 (HP)

Kailash Chand S/O Sh. Kalu Ram v. State Of Himachal Pradesh through Secretary Education

2022-04-02

SABINA, SATYEN VAIDYA

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ORDER : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for grant of following reliefs :- “i. Issue a writ of certiorari thereby quashing and setting aside the impugned transfer dated 20.01.2022 (Annexure P-2) passed by Respondent. ii. Issue a writ mandamus directing the Respondents not to implement the transfer order dated 20.01.2022.” 2. Petitioner has laid challenge to transfer order dated 20.02.2022, Annexure P-2, on the grounds, firstly that his transfer is result of D.O. Note and secondly, petitioner is suffering with multiple diseases and has been medically advised not to travel long distance. Lastly, it is also contended that the transfer order of petitioner has been issued despite the ban imposed by the government. 3. In response, the respondents have justified their administrative action on the grounds that the petitioner has completed his normal tenure at Government Middle School Majhakhal, under complex GSSS Janjehli, District Mandi and his transfer was approved by the competent authority. Petitioner belongs to cadre of Trained Graduate Teacher which is a State Cadre Post, therefore, petitioner is liable to be transferred anywhere in the State. 4. We have heard the learned counsel for the parties and have also gone through records. 5. A perusal of contents of petition filed by the petitioner reveal that on his initial appointment on 21.02.2012, petitioner was posted at Government Middle School Sodhadhar under complex GSSS Janjehli, District Mandi, H.P. He was transferred from Government Middle School Sodhadhar to Government Middle School Majhakhal, on 26.11.2016 and noticeably the school to which he was transferred also was under complex GSSS Janjehli (Mandi). Thus, it is evident that petitioner since his initial posting is posted almost in the same area i.e. under complex GSS Janjehli, Mandi. 6. Though, the petitioner has alleged that his transfer has been effect on a D.O. Note, but neither the petitioner has provided any details of the author of D.O. Note nor any malafide has been alleged. Needless to say that the petitioner has not even chosen to implead the author of D.O. Note as a party. 7. Since, the petitioner has been transferred after five years from Government Middle School, Majhakhal under complex GSSS Janjehli (Mandi) and practically after almost 10 years from the same area as noticed above, petitioner neither has any right nor is justified in taking exception to his transfer on the basis of D.O. Note. 7. Since, the petitioner has been transferred after five years from Government Middle School, Majhakhal under complex GSSS Janjehli (Mandi) and practically after almost 10 years from the same area as noticed above, petitioner neither has any right nor is justified in taking exception to his transfer on the basis of D.O. Note. A Division bench of this Court in CWP No. 2624 of 2020, titled as Shabnam vs. State of Himachal Pradesh and others, decided on 18th September, 2020 has held as under:- “2. We have heard learned counsel for the parties. It remains undisputed that prior to the present transfer, petitioner had served in the previous station for more than three years i.e. w.e.f. 9.2.2017. The Transfer Policy also provides that a normal tenure at a station would be three years. The grievance of the petitioner is that she has been transferred on a D.O. Note issued by the fourth respondent, who is a MLA. Once, the employee has completed her normal tenure, it is none of her concern that on what basis the transfer order came into effect.” 8. Petitioner, in support of his case has placed reliance on a judgment passed by the Division Bench of this Court ( in which one of us Satyen Vaidya, J. was a member), on 10.09.2021 in CWP No. 2573 of 2021, titled as Pradeep Kumar vs. The State Electricity Board Ltd. & Another. In our considered view, the judgment relied upon by the petitioner cannot help his case, for the reason that the said judgment was passed in its own peculiar facts, which are not available in the instant case. In the case of Pradeep Kumar (supra), the incumbent i.e. petitioner therein had been transferred after almost two years and had not completed his normal tenure. Further, the transfer in the said case was on recommendation of an extra constitutional authority that too purely on political grounds. In the backdrop of peculiar facts of that case, it was held as under:- “30. Adverting to the facts of the case, what disturbs the Court is that the transfer of the petitioner along with many other employees working in various Departments has been recommended on the ground as is contained in the opening paragraph of the letter dated 09.03.2021, which is again reproduced and reads as under :- “It is humbly that the following govt. employees are indulging in party politics and they are contaminating the working culture in their organization/institutes. It is, therefore, requested to approve their transfer in the larger interest of the public.” 31. If that was not enough, the recommendations have been made to transfer the employees outside the District to anywhere in District Chamba, District Una and District Kangra. Under what authority such recommendations could have been made, is obviously wanting. But, more disturbing is the fact that these recommendations have been approved on administrative grounds. 36. Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who has no role in the functioning and business of the administration, therefore, the impugned transfer of the petitioner on the basis of such recommendations cannot be sustained and is accordingly quashed. 38. As noticed above, the specific ground on which the petitioner and other employees have been recommended for transfer is that they are indulging in party politics and are alleged to have been contaminating the working culture in their organization/institute. 39. Firstly, as observed above, we are at a complete loss to understand as to the source of power and authority of the author of this letter to make the recommendations to the Hon’ble Chief Minister. After-all, we are governed by the rule of law.” 9. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other. 10. In S.K. Nausad Rahaman and others vs. Union of India and others, Civil Appeal No. 1243 of 2022, decided on 10th March, 2022, the Hon’ble Supreme Court has held as under:- “24. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind. 25. First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice. 26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice. 26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.” 11. In Mohd. Masood Ahmad vs. State of U.P. & Others, (2008)1 SCC 180 , the Hon’ble Supreme Court has held as under:- “7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148 ; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574 ; ( AIR 2001 SC 3309 ), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508 ; ( AIR 2001 SC 1748 ). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.” 12. The petitioner, in the light of above discussion, has not been able to make out a case for interference, with the impugned order, in exercise of power under Article 226 of the Constitution of India. 13. Thus, we find no merit in this petition and the same is dismissed. No order as to the costs. All pending applications, if any, shall also stand disposed of.