Himachal Pradesh High Court

Parveen Kumar vs State Of Himachal Pradesh And ... on 3 August, 2021

Bench: Tarlok Singh Chauhan, Satyen Vaidya

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                          CWP No.3886 of 2020.




                                                                        .

                                          Date of decision: 03.08.2021.


    Parveen Kumar                                               .....Petitioner.





                                   Versus
    State of Himachal Pradesh and another
                                                              .....Respondents.


    Coram


    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    The Hon'ble Mr. Justice Satyen Vaidya, Judge.

    Whether approved for reporting?1                   No

    For the Petitioner            :       Mr.  Kul  Bhushan                   Khajuria,
                                          Advocate.

    For the Respondents:                   Mr. Ashok Sharma, Advocate



                                           General with Mr. Vinod Thakur,
                                           Mr. Hemanshu Misra, Mr. Shiv
                                           Pal   Manhans,       Additional
                                           Advocate Generals     and   Mr.




                                           Bhupinder    Thakur,    Deputy
                                           Advocate General.





                                           (Through Video Conferencing)





    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the order of transfer, the petitioner

has filed the instant petition for grant of the following

substantive relief:-

"That in view of the facts and circumstances mentioned hereinabove in this writ petition, the writ

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

petition may kindly be allowed and the impugned order dated 17.9.2020 may kindly be quashed and

set aside."

2. The transfer of the petitioner has been ordered

vide order dated 17.09.2020 from QRT Police Line, Bilaspur

to Police Post, Gwalthai under Police Station, Kot Kehloor,

which transfer, according to the petitioner, is neither in

It is averred r to public interest nor in administrative exigency.

3. that the petitioner has been

transferred only because he had given a statement against

the Reader to the Law Officer to respondent No.2. In fact,

there was dispute between the Reader to the Law Officer

and one Shri Rajinder Kumar HHC. Rajinder Kumar had

written a complaint against Reader to Law Officer with

regard to the closure of inquiry against him wherein the

petitioner supported the case of Rajinder Kumar against the

said official.

4. It is further averred that Shri Rajinder Kumar

had submitted a communication dated 16.09.2020

(Annexure P-2) intimating respondent No.2 that the

petitioner has corroborated the allegations levelled in the

complaint against Reader Shri Prakash Chand to the Law

Officer and it is not coincidental that on the next very day,

the petitioner has been ordered to be transferred.

5. The respondents have contested the petition by

filing reply wherein it has been averred that a meeting of

the District Police Establishment Committee was held on

17.09.2020 under the chairmanship of respondent No.2 in

which transfer cases of 12 police officials were examined

by the Committee and the name of the petitioner was also

recommended in the public interest/administrative

grounds. The copy of the meeting has been appended as

Annexure R-1 with the reply. It is further submitted that not

only the petitioner has been ordered to be transferred from

Police Line, Bilaspur, but six police officials have been

transferred to various places in the District and these

orders have been passed solely in public

interest/administrative grounds.

6. As regards the respondents taking exception to

the petitioner supporting the claim of HHC Rajinder Kumar,

it is averred that two complaints were submitted by HHC

Rajinder Kumar No. 374 against HC Prakash Chand, Reader

to Law Officer, which were enquired into by the Officers

and the same were found without merit, therefore, ordered

to be closed.

7. We have heard the learned counsel for the

parties and gone through the material placed on record.

8. 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. 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.

9. 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.

10. 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. 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.

11. 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.

12. 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
                   r       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 Supp. (3) SCC 214; Abani

Kanta Ray vs. State of Orissa 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 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. 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.

13. When the instant case touched upon on the

basis of aforesaid exposition of law, it would be noticed that

the order of transfer has been passed in administrative

exigency and public interest. This is clear from the fact that

the petitioner was appointed as a Constable in the year

1997 in the Himachal Pradesh Police Organization and

remained posted in Police Line, Bilaspur from March, 2011

to March, 2015 and thereafter remained posted at Police

Station, Kot Kehloor, District Bilaspur, with effect from

11.03.2015 to 19.12.2015. However, thereafter he was

again posted in Police Line, Bilaspur in Quick Reaction Team

with effect from 20.12.2015 to 17.09.2020. Meaning