Rajesh Kumar Dhiman vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 3656 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.3106 of 2021.

.

Reserved on : 03.08.2021.

Date of decision: 06.08.2021.

Rajesh Kumar Dhiman .....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. P.D. Nanda, Advocate.

For the Respondents: Mr. Ashok Sharma, Advocate General with Mr. Shiv Pal Manhans, Mr. Hemanshu Misra, and Mr. Vikas Rathore,

Additional Advocate Generals, Mr. J.S. Guleria and Mr.

Bhupinder Thakur, Deputy Advocate Generals, for respondent No.1/State.

(Through Video Conferencing)

Tarlok Singh Chauhan, Judge

The instant petition has been filed by the

petitioner for grant of the following substantive relief:-

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

"That the present petition be kindly be allowed and the notification/order dated 6.5.2021,Annexure

.

P-2, may kindly be quashed and set aside."

2. Now adverting to notification dated 6.5.2021, it

would be noticed that it is an order of transfer, whereby

petition has been ordered to be transferred from office of

SDSCO Nalagarh, District Solan to Development Block,

Nalagarh, District Solan.

3. We are at a complete loss to understand as to

how a petition for transfer from one building to the other or

from one room to the other, in the same building, that too,

in a small town, is maintainable.

4. It is trite that transfer is an incidence of service

and law in this regard has been lucidly discussed by this

Court while adjudicating upon CWP No. 4460 of 2019 titled

Anand Swaroop Sharma vs. State of H.P. and others,

decided on 8.6.2020, the Court while relying upon the

judgments rendered by 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 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 other s 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, has held as under:

"3. 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.

4. 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.

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.

6. 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.

7.It is settled law that transfer is an incidence of

service and the authority, as long as it acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount

consideration, has unfettered powers to effect

transfer subject, of course to certain disciplines.....................................

25. From the catena of authorities referred to above, it can be summed up that the judicial review of administrative order of transfer can only be

interfered with when the same is actuated with malafide or based on extraneous consideration or is

against professed norms or the same could be termed as punitive and is in lieu of any

punishment........."

5. The learned counsel for the petitioner would urge

that the transfer of the petitioner has not been effected

either in administrative exigency or in public interest, but

to favour the private respondent to the disadvantage of the

petitioner.

6. We find no merit in this contention for the simple

reason that the petitioner has admittedly rendered about

.

22 years of service with the department and has

remained throughout his service in District Solan. Even now

the petitioner is in the same station and instead of holding

the post of SDSCO, Nalagarh, he is posted as SMS, Nalagarh

in the same building if not in the same room. Both the posts

are equivalent in status. The only difference is that SDSCO

exercises the powers of Drawing and Disbursing Officer,

whereas, SMS does not have any such powers.

7. This Court has already considered an identical

issue in CWP No. 4761 of 2020, titled 'Satish Kumar

Negi vs. State of H.P. and others, decided on

08.01.2021, where the transfer was effected from one room

to the other and it was observed as under:-

"14. As observed above, being transferred from one building to another or from one office to the other in a small town like Kullu, would hardly qualify be termed to be a 'transfer' unless the petitioner can establish his right to hold the post or claim that the post to which he has been transferred amounts to demotion or impinges upon any right of the petitioner or violates the service condition or rules.

In absence of any such plea available on record, no interference is warranted."

.

8. As stated above, the transfer is not a condition of

service but is an incidence of service and every employee

undertakes the liability to be transferred from one place to

another. Personal inconveniences or any ego fight in the

matter of transfer or posting at the end of an employee,

under no circumstances, can be addressed in the matter of

challenge to the transfer order. The employer is in the best

position to organize its work force for optimized yield. The

view of the Court in that behalf cannot be substituted for

that of the master.

9. As per the Black's Law Dictionary, 'transfer'

means to convey or move from one place or one person to

another; to pass or hand over from one to another,

especially to change over the position or control of.

10. The Courts normally entertain the petitions

regarding transfers because invariably in those petitions the

families are dislodged causing a lot of inconvenience and

hardship to the employees as also their families. But, in the

instant case, as observed above, the transfer of the

petitioner is from one office to the other in the same

building, which obviously, in the peculiarity of the facts and

.

circumstances of he instant case, cannot be interfered with.

11. In view of the aforesaid discussion and the

reasons stated above, we find no merit in this writ petition

and the same is accordingly dismissed, leaving the parties

to bear their own costs. Pending application, if any, also

stands disposed of.

                   r                   (Tarlok Singh Chauhan)

                                                 Judge


                                            (Satyen Vaidya)
                                                 Judge


    6th August,2021.
    (krt)