Himachal Pradesh High Court
Om Parkash vs Transfer Is A Condition Of Service on 9 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 9th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 3818 OF 2021
BETWEEN:
OM PARKASH,
S/O SH. RATTAN CHAND,
ASSISTANT ENGINEER (ELECTRICAL) PLCC,
SUBDIVISION JOGINDER NAGAR, DISTRICT MANDI, H.P.,
RESIDENT OF VILLAGE DHOAG,
TEHSIL AND POST OFFICE JOGINDERNAGAR,
DISTRICT MANDI, H.P. ....PETITIONER
(BY SH. SUNEEL AWASTHI, ADVOCATE)
AND
1. HIMACHAL PRADESH STATE ELECTRICITY BOARD
LIMITED, THROUGH ITS EXECUTIVE DIRECTOR
(PERS.),VIDYUT BHAWAN, SHIMLA171004.
2. THE EXECUTIVE ENGINEER,
ELECTRICAL DIVISION JOGINDERNAGAR/PLCC
DIVISION SUNDERNAGAR, H.P. ...RESPONDENTS
(BY SH. VIKRANT THAKUR, ADVOCATE FOR R1 & 2
BY SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA,
SR. ADDL. A.G., SH. VINOD THAKUR, SH. HEMANSHU
MISRA, SH. SHIV PAL MANHANS, ADDL. A.GS., AND SH.
BHUPINDER THAKUR, DY.A.G. FOR THE STATE)
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2
This petition coming on for orders this day, Hon'ble
.
Mr. Justice Tarlok Singh Chauhan, passed the following:
ORDER
Aggrieved by the order of transfer, the petitioner has
filed the instant petition for the grant of following substantive
relief: r
"writ in the nature of certiorari may kindly be issued to quash
the impugned transfer order dated 2.7.2021 i.e. Annexure P1
whereby the petitioner has been transferred from PLCC Sub
Division Jogindernagar to Electrical SubDivision Lad Bharol."
2 Records produced pursuant to directions issued by
this Court reveal that the proposal to transfer the petitioner was
initiated on the basis of D.O. note issued by sitting MLA of
Jogindernagar, which ultimately led to issuance of U.O. note by
the Hon'ble Chief Minister.
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. r
5 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 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 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 midacademic session of the
children of the employee, the Court/Tribunal cannot interfere. It
is for the employer to consider such a personal grievance.
8 Bearing in mind the aforesaid exposition of law, it
.
would be noticed that the transfer in the instant case has been
effected solely on political consideration, that too, at the instance
of a person, who has no concern with the administration or
functioning of the respondentsDepartment.
9 The Courts are reluctant to interfere with the orders of
transfer since this is an ordinary incidence of service, yet this
Court has repeatedly held that the transfers and postings should
be effected only by the administrative departments.
10 In this country, we follow the British system of a non
political bureaucracy and hence, it is for the bureaucrats, and not
for the politicians, to effect transfers and postings.
11 The treatise on the subject is the judgment rendered
by learned Division Bench of this Court in Amir Chand versus
State of Himachal Pradesh, 2013(2) HLR (DB) 648, wherein
this Court prefaced the judgment with the following
observations:
"1. This Court is flooded with litigation filed by employees
aggrieved by their transfer and sometimes, even by their non
transfer when they are not shifted out of tribal areas. The time
has come when we must lay down the law with regard to the
powers of the legislators to influence transfers. Should political
pressure and political influence be necessary to run the
.
administration? Should transfers be ordered on the asking of
the legislators, members of a particular ruling party, persons
belonging to certain groups without even making a reference to
the administrative department concerned? Is the policy of
transfer always binding upon the Government and its
employees or can the Government flout with impunity the
policy framed by it? No doubt, the employer is the master and
can decide which employee is to be posted at which particular
place, but we must remember that we are governed by the
Constitution of India. Does not each and every employee have
a right to claim that he should be treated fairly? Why is it that
favoured employees, who are either well connected or can
exercise political or bureaucratic clout are never transferred out
of the main cities and those employees who do not enjoy such
political or bureaucratic patronage have to stay in
remote/tribal areas for years on end.
2. Another disturbing feature which we have found is that in the
State of Himachal Pradesh after the period earmarked for
normal transfers is over, the transfers have to be ordered only
after approval of the competent authority which normally is the
Hon'ble Chief Minister. We have found that people directly
approach the Hon'ble Chief Minister using political influence
and patronage without first making a representation to the
department concerned. This is a total violation of the Conduct
Rules. Despite this violation of the Conduct Rules, these
requests of the employees who are backed by political
patronage are accepted without even considering what will be
the effect of such transfers on the people who are to be served
by these employees, or on those employees who may be
affected by such transfers.
3. Does anybody care about the students who are studying in the
.
schools? If no teacher is willing to go to the rural/remote areas,
where will the students of these rural and remote areas study?
Does anybody care in some remote areas, dispensaries are
without Doctors or paramedical staff whereas there is more
than the sanctioned number of doctors in the State and District
headquarters. It was only after the intervention of the Court
that the Female Health Workers, who were to serve in the rural
areas, were actually transferred there. Almost all the Female
Health Workers had been adjusted in Shimla town itself. This
shows that neither the interest of the public at large nor that of
the administration was kept in view while adjusting these
Female Health Workers at Shimla. When the employees want a
job then they are willing to join at any place. However, soon
thereafter, political patronage is employed to get themselves
transferred to a particular place. There is more than sufficient
material before the Courts to prove that transfers are made for
extraneous reasons without considering the administrative
exigencies and the interests of the students.
4. This does not speak well of the system of the administration.
We are clearly of the view that normally we would not like to
interfere in transfer orders passed in administrative interests.
We are also of the considered view that all the employees,
such as teachers, doctors, nurses etc., will necessarily have to
be posted in rural/remote area at some stage in their careers.
The administration has to be stern and strict in matters of
transfers. At the same time, it also has to be fair and just and
should treat all the employees equally. It is only because the
administration itself is lax and transfer orders are passed on
extraneous considerations and the administration reverses its
decisions day in and day out, that the courts are forced to
intervene. These types of cases clearly highlight the fact that
transfers are being made not on the basis of administrative
.
exigencies but on other extraneous considerations.
5. Rule 20 of the Central Civil Services (Conduct) Rules, 1964
lays down that it will be misconduct for an employee to bring
in political pressure or get recommendations from others in
matters relating to his service. It seems that both, the
administration as well as the employees, have forgotten that
such a rule exits. Our experience is that unless an employee
gets a "suitable recommendation" or brings in political
pressure, he can never get posted to a station of his choice. If
action is taken against the employee for breach of the Conduct
Rules, the employee could very well say that he is damned if
he does not use political pressure and damned if he does.
6. It would be apposite to quote a humorous poem from Shri A.S
Bhatnagar's Commentary on Conduct Rules. 'Ban on
recommendation', a humorous poem Who am I? A victim to the
jealousies of those Who, to me have been quite close,
Suspended from work And, for no fault of mine. Oh Justice,
what a heavy fine ! I am expected not to seek Help from one
mighty or weak. They name it pressure or canvassing, A fruit
from the Forbidden Tree. Which to touch none is free. Is this
bar justified, When there are cases multiplied, Where in
favours have been done, And ends foul have been badly won?"
12 It was further observed that there can be no manner
of doubt that a legislator, who is the elected representative of the
people, has a right to place his difficulties before the Hon'ble
Chief Minister or the Minister concerned. It would be well within
his rights to complain to the authorities concerned in case he
finds that a particular employee is not doing his job properly. The
.
Court further went to observe that transfer is never meant to be a
punishment but nobody can deny the fact that many times
incompetent and inconvenient officials are transferred.
13 The Court thereafter, while discussing the judgments
of the various High Courts including the one referred to above,
observed as under:
"33. From the files which this Court has seen including the files of
these cases, it is apparent that transfers are being made day
in and day out at the behest of public representatives. It is true
that public representatives have a right to complain against the
working of government officials. However, these complaints
must be verified by the administrative department and final
action has to be taken by the administrative department.
Transfer is not a punishment and if transfer is inflicted as a
means of punishment, then the whole purpose of making
transfers in the public interest is set at naught. An employee
who is rude or inefficient at one station will not become polite
or efficient at another station. Transfer does not serve any
purpose. If the allegations of the public representatives made
in the complaints against the government servants are found to
be correct, then disciplinary action should be taken against
such government employees. We live in a democracy and our
elected representatives under the constitution are to work in
the legislature and not as administrators. They cannot start
interfering in the administration or the working of the
Executive. This has already resulted in government servants
rushing to please the political masters at the cost of doing their
duties. This also demoralizes the officers who are in charge of
.
the administration of the department. It is they who are the
best judges to decide how the department has to be
administered and which employee should be transferred to
which place. The politicians cannot don the role of
administrators. The earlier such inherently illegal and improper
practices are put to an end, the better it would be for the
smooth functioning of the administration of the State.
34. As far as the concept of judicial review is concerned, the Apex
Court again observed that the Court should be reluctant in
interfering in transfer orders. The scope of judicial review in
the matter of transfer of a Government employee is limited and
the Court should not interfere in the transfer. The Court cannot
substitute its own opinion for the opinion of the employee.
35. After reviewing the entire law on the subject, we can without
any hesitation come to the conclusion that the scope of judicial
review in transfer matters is very limited. This court cannot
interfere in the day to day functioning of the Government
departments and it is for the administrative heads to decide
which employee should be posted at which place. Even earlier,
we had clearly given a number of judgments on these lines.
36. At the same time, this Court cannot shut its eyes to the
increasing number of transfers being made not for
administrative reasons but only with a view to accommodate
favoured employees. As indicated by us earlier, an employee of
the department is also a citizen of the country and is entitled to
the equal protection of laws. Therefore, the State should
always be fair to its employees. They must all be treated
equally."
14 It is then that the following directions came to be
.
passed:
"1. The State must amend its transfer policy and categorize all the
stations in the State under different categories. At present,
there are only two categories, i.e. tribal/ hard areas and other
areas. We have increasingly found that people who are sent to
the hard/ tribal areas find it very difficult to come back
because whenever a person is posted there, he first manages
to get orders staying his transfer by approaching the political
bosses and sometimes even from the Courts. Why should the
poor people of such areas suffer on this count. We are,
therefore, of the view that the Government should categorize all
the stations in the State in at least four or five categories, i.e.
A, B, C, D and E also, if the State so requires. The most easy
stations, i.e. urban areas like Shimla, Dharamshala, Mandi
etc. may fall in category A and the lowest category will be of
the must difficult stations in the remote corners of the State
such as Pangi, Dodra Kawar, Kaza etc. At the same time, the
home town or area adjoining to home town of the employee,
regardless of its category, otherwise can be treated as
category A or at least in a category higher than its actual
category in which the employee would normally fall. For
example, if an employee belongs to Ghumarwin, which is
categorized in category B, then if the employee is serving in
and around Ghumarwin, he will be deemed to be in Category
A.
2. After the stations have been categorized, a database must be
maintained of all the employees in different departments as to
in which category of station(s) a particular employee has
served throughout his career. An effort should be made to
ensure that every employee serves in every category of
stations. Supposing the State decides to have four categories,
.
i.e. A, B, C, D, then an employee should be posted from
category A to any of the other three categories, but should not
be again transferred to category A station. If after category A
he is transferred to category D station, then his next posting
must be in category B or C. In case such a policy is followed,
there will be no scope for adjusting the favourites and all
employees will be treated equally and there will be no heart
burning between the employees.
3. We make it clear that in certain hard cases, keeping in view
the problems of a particular employee, an exception can be
made but whenever such exception is made, a reasoned order
must be passed why policy is not being followed.
4. Coming to the issue of political patronage. On the basis of the
judgments cited hereinabove, there can be no manner of doubt
that the elected representative do have a right to complain
about the working of an official, but once such a complaint is
made, then it must be sent to the head of the administrative
department, who should verify the complaint and if the
complaint is found to be true, then alone can the employee be
transferred.
5. We are, however, of the view that the elected representative
cannot have a right to claim that a particular employee should
be posted at a particular station. This choice has to be made
by the administrative head, i.e. the Executive and not by the
legislators. Where an employee is to be posted must be
decided by the administration. It is for the officers to show
their independence by ensuring that they do not order
transfers merely on the asking of an MLA or Minister. They can
always send back a proposal showing why the same cannot
be accepted.
6. We, therefore, direct that whenever any transfer is ordered not
.
by the departments, but on the recommendations of a Minster
or MLA, then before ordering the transfer, views of the
administrative department must be ascertained. Only after
ascertaining the views of the administrative department, the
transfer may be ordered if approved by the administrative
department.
7. No transfer should be ordered at the behest of party workers
or others who have no connection either with the legislature or
the executive. These persons have no right to recommend that
an employee should be posted at a particular place. In case
they want to complain about the functioning of the employees
then the complaint must be made to the Minister In charge
and/ or the Head of the Department. Only after the complaint
is verified should action be taken. We, however, reiterate that
no transfer should be made at the behest of party workers."
15 As held by this Court in Amir Chand's case (supra),
we live in a democracy and our elected representatives under the
Constitution are to work in the legislature and not as
administrators. They cannot start interfering in the
administration or the working of the Executive. It is they
(Administrative Heads) who are the best judges to decide how the
department has to be administered and which employee should
be transferred to which place. The politicians cannot don the role
of administration.
16 Reverting back to the facts of the case, it would be
.
noticed that the respondents have simply acted upon the U.O.
note without independently coming to the conclusion as to
whether the transfer of the petitioner was indeed required in the
administrative exigency or public interest or even for that matter,
on legal and valid reasons.
17 Once that be so, obviously, the impugned transfer
order cannot be sustained and is accordingly quashed and set
aside.
18 The instant petition is allowed, in the aforesaid terms,
so also the pending application(s), if any, leaving the parties to
bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
9.8.2021 Judge
(pankaj)
