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2022 DIGILAW 177 (HP)

VIJAY KALIA S/O PARKASH CHAND v. STATE OF HIMACHAL PRADESH THROUGH SECRETARY(HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA

2022-04-13

SABINA, SATYEN VAIDYA

body2022
ORDER : By way of instant petition, petitioner has prayed for the following substantive relief:- “i “That transfer orders dated 7.7.2021 (Annexure P-2) may kindly be quashed and set aside in the interest of justice and fair play.” 2. The grievance of the petitioner is that impugned transfer order dated 7.7.2021, whereby the petitioner has been transferred from Civil Hospital, Indora, District Kangra, H.P. to Dr. RPGMC&H, Tanda, District Kangra, H.P is vitiated on the grounds firstly that petitioner was transferred within a short span of less than five months, secondly, the transfer was on the basis of D.O. Note, thirdly, the impugned order was in violation of the “Comprehensive Guiding Principles-2013” inasmuch as respondent No.2 being a contract employee could not have been transferred before completion of three years and lastly, that transfer was effected during ban period. 3. Respondent No.1 has contested the claim of petitioner on the ground that petitioner was a Class-I officer and as such, normal tenure prescribed for an employee vide comprehensive Guiding Principles 2013 was not applicable. It has also been contended that the impugned transfer order was effected with prior approval of competent authority, in relaxation of ban on transfer/contract policy. 4. Respondent No.2 also filed a separate reply and pointed out that petitioner himself was a recipient of a D.O. Note in the past. Petitioner was transferred from Community Health Centre, Gangath to Civil Hospital, Indora on the basis of D.O. Note and in that case also, a contractual employee was transferred vice petitioner. 5. We have heard learned counsel for the parties and have also gone through the record carefully. 6. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer of its employees save and except on the ground of malafide or arbitrariness. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other. 7. 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. 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. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.” 8. 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.” 9. A writ of mandamus can be issued, provided that there exist a legal right in applicant and corresponding legal duty in the respondent. As noticed above, no legal right is vested in petitioner to remain at a particular place of posting. A writ of mandamus can be issued, provided that there exist a legal right in applicant and corresponding legal duty in the respondent. As noticed above, no legal right is vested in petitioner to remain at a particular place of posting. The category of Class-I Officers has been exempted from the prescription of a normal tenure of posting, therefore, again the petitioner is precluded from asserting his right, if any, to remain posted at a particular place for a specific term. 10. Petitioner has not refuted the contention raised by respondent No.2 regarding the petitioner also being beneficiary of D.O. Note in the past. That being so, the petitioner is not entitled to any relief. A Co-ordinate Bench of this Court in CWP No. 3195 of 2021 titled as Bhup Singh vs. State of H.P and another, decided on 30.06.2021 has held as under:- “2. The main grievance of the petitioner is that his transfer has been effected on the basis of D.O. note. The record, which has been produced pursuant to our directions, reveals that the petitioner himself is the beneficiary of the D.O. note, therefore, in such circumstances, he is not entitled to any relief in terms of the repeated judgments rendered by this Court. 3. Reference in this regard can conveniently be made to the judgment rendered by this Court in CWP No. 1387 of 2021, titled as Parveen Kumar vs. State of H. P. and Ors., decided on 31.03.2021, wherein it was observed as under:- “13. Indeed, transfer is an incidence of service and government employees are supposed to be transferred and posted anywhere in the State . The transfers of the petitioner and that of respondent No. 4 are effected after the approval of the competent authority. The petitioner, earlier managed his posting at GSSS Nabahi, Mandi, and now he has been transferred from Nabahi, after completion of his normal tenure, so he has no right to say that transfer of respondent No. 4, effected on the basis of D.O. Note, is illegal and bad in the eyes of law. In fact, transfer of the petitioner has no tinge of malafides, neither without public interest nor vitiated, being against the settled Transfer Policy, as transfer is an incidence of service. In fact, transfer of the petitioner has no tinge of malafides, neither without public interest nor vitiated, being against the settled Transfer Policy, as transfer is an incidence of service. Moreover in Sanjeev Sood vs. State of Himachal Pradesh and others, CWP No. 4208 of 2020, decided on 22.12.2020, this Court has held as under: “9. This Court in CWP No. 4063 of 2019, titled Smt. Anita Rana and Anr vs. State of Himachal Pradesh and others, decided on 31.12.2019, has specifically held that a recipient /beneficiary of DO note cannot approach this Court ventilating the grievance that he /she has been transferred on the basis of DO Note. It would be apposite to refer to the relevant observations made by a Coordinate Bench in order dated 31.12.2019, which reads as under:- “We have heard this matter for some time and also perused the record produced by the office of respondent No. 2. It is seen from the record that on the D.O. Note, the transfer of petitioner No. 1 has been proposed to be cancelled. Meaning thereby that she is also recipient of D.O. Note, hence not justified in ventilating the grievances that she has been transferred on the basis of D.O. note. Therefore, the writ petition qua her deserves to be dismissed and is accordingly dismissed leaving it open to her to make a representation either for cancellation of her transfer or adjustment at some suitable place, if so advised.” 10. Since it is apparent that the petitioner, on earlier occasions, got himself posted at stations of choice on the basis of UO Notes, petition praying therein for quashment of impugned order is not maintainable at all. However, having taken note of the fact that both, petitioner and respondent No.3, have been repeatedly exerting political pressure to get themselves posted at stations of their choice, we dispose of this petition by directing respondents to transfer both, petitioner and respondent No.3, to some other places in the State, especially where both of them have not served till date, within two weeks.” 11. Petitioner, in support of his case, has placed reliance on a judgment passed by the Principal Division Bench of this Court in CWP No. 3437 of 2010 titled Anuradha Garg vs. State of H.P and others, decided on 28.06.2010. Petitioner, in support of his case, has placed reliance on a judgment passed by the Principal Division Bench of this Court in CWP No. 3437 of 2010 titled Anuradha Garg vs. State of H.P and others, decided on 28.06.2010. On perusal of this judgment, we are of the considered view, that same will not help the cause of the petitioner as the same was passed in its peculiar facts. In Anuradha Garg’s case (supra), the right of contract employee to make a request for transfer by transferring a regular employee was considered. In the instant case, the facts do not reveal as to whether respondent No.2 had made any request for her transfer or not. Even otherwise, since the petitioner himself had got his transfer from CHC, Gangath to CH, Indora in the recent past, on a D.O. Note, that too against a contract employee, petitioner is clearly estopped from raising such plea. 12. No tangible material has been placed on record by the petitioner to prove any malafide against respondent No.1. In fact, petitioner has deleted the name of respondent No.3 from the array of respondents vide order dated 13.07.2021. 13. In the light of the above discussion, we do not find any merit in the petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.