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2023 DIGILAW 177 (HP)

Monika Rana v. State of H. P.

2023-03-24

SABINA, SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Heard. 2. By way of instant petition, petitioner has prayed for the following relief: “i) That the office order dated 20.03.2023 at Annexure P-1, whereby the petitioner has been ordered to be transferred from GSSS, Saddun Bargran, Tehsil Baroh, District Kangra, H.P. to GSSS, Balugaloa, District Kangra, H.P. may kindly be quashed and set-aside and the petitioner may kindly be permitted to work at the present station of posting in GSSS Saddun Bargran, Tehsil Baroh, District Kangra, H.P.” 3. The petitioner is working as Lecturer (Biology) in the Department of Higher Education, Himachal Pradesh. Petitioner has been ordered to be transferred from GSSS Saddun Bargran, (Kangra) to GSSS Balugaloa in Kangra District vide impugned transfer order dated 20.03.2023, Annexure P-1. 4. The grievance of the petitioner is that she has been ordered to be transferred from GSSS Saddun Bargran, (Kangra) to GSSS Balugaloa (Kangra) without allowing her to complete her normal tenure of posting. She was posted at GSSS Saddun Bargran on 16.06.2020 and has yet to complete her three years’ tenure at such place. It is further alleged that the transfer of petitioner has been effected on the basis of a D.O. Note issued by the Chief Parliamentary Secretary, Himachal Pradesh. It is further submitted that the husband of petitioner is serving at Jalandhar and she has a four year old son to be looked after. On such ground, it is submitted that petitioner will suffer undue hardship, in case the impugned transfer order is implemented. 5. Mr. Arsh Rattan, learned Deputy Advocate General appeared for respondents No. 1 and 2 has opposed the claim of the petitioner on the grounds firstly that the petitioner has already completed about 2 years and 9 months of stay at the present place of posting and secondly, she has been transferred to a station, which is not far away from the present place of posting. In fact, the distance between the two stations is about 32 kilometers. 6. 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.” 7. 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.” 8. 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. 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.” 9. Petitioner has completed almost three years at her present place of posting. Since, she has been ordered to be transferred to a place, which is at a distance of only 32 kilometers, it cannot be said to be a case of any malafide. Petitioner has not placed on record any details of D.O. Note on the basis of which she is alleged to have been transferred. Even the person on whose D.O. Note, petitioner has allegedly been transferred, has not been arrayed as a party in the case. 10. Further, even the ground of individual hardship cannot come to the rescue of the petitioner as her transfer is only to a nearby place. 11. Noticeably, the petitioner is working as Lecturer (Biology) in the department of Higher Education since 2016 and is now holding Class-II post. Even as per “Comprehensive Guiding Principles-2013”, the normal tenure for posting has been prescribed for Class-III and Class-IV employees and will not be applicable to the case of petitioner. 12. Thus, the petitioner has failed to make out any case for indulgence of this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the petition is dismissed, so also the pending miscellaneous application(s), if any.