Satish Kumar Negi vs State Of H.P. And Others
2021 Latest Caselaw 457 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                      CWP No. 4761 of 2020




                                                                            .
                                                      Date of decision: 08.01.2021





    Satish Kumar Negi                                                       ...Petitioner.
                                     Versus





    State of H.P. and others                                                ..Respondents.

    Coram





    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
    Whether approved for reporting ?1 No
    For the Petitioner
                         r           :       Mr. Bimal Gupta, Senior Advocate, with
                                             Ms. Poonam Moghta, Advocate.

    For the Respondents              :       Mr. Ashok Sharma, Advocate General,
                                             with Mr.Vinod Thakur, Mr. Vikas
                                             Rathore, Mr. Shiv Pal Manhans, Addl.
                                             A.Gs. Mr. Bhupinder Thakur, Ms. Seema


                                             Sharma and Mr. Yudhbir Singh Thakur,
                                             Dy. A.Gs., for respondent No.1/State.
                                             Mr. Surinder Saklani, Advocate, for




                                             respondent No.2.
                                             Mr. Vivek Singh Attri and Mr. Abhinav





                                             Purohit, Advocates, for respondent
                                             No.3.

    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the order of transfer from DFO (WL),

Kullu to DFO (HQ) O/o CCF, Kullu, the petitioner has filed the

instant writ petition for the grant of following substantive relief:

Whether reporters of Local Papers may be allowed to see the Judgment ?

i) That the impugned order dated 23.10.2020,

.

Annexure P-5, passed by respondent No.1, may

kindly be set-aside and quashed.

ii) Order of transfer dated 23.10.2020, Annexure

P-5, may kindly be held wrong, illegal, arbitrary, malafide, as well as in violation of transfer policy of the respondent-State and also as a result of

colourable exercise of powers and the same may kindly be set aside and quashed."

2. We are at a complete loss to appreciate 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 small town like

Kullu, is maintainable.

3. 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 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, 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........."

4. The learned Senior Advocate for the petitioner would

urge that the transfer has not only been effected on account of

administrative exigency, but to favour private respondent to the

disadvantage of the petitioner.

5. We, however, find no merit in this contention for the

simple reason that the petitioner had earlier been working as

DFO, Kunihar since 2017 and was thereafter vide order dated

19.9.2020 transferred as DFO, Wildlife Division, Kullu and

assumed charge on 21.09.2020.

6. Till that stage, the petitioner had no grievance of his

being posted in Kullu, but his only difficulty was regarding the so

called non-cooperation of respondent No.2. If that be so, then

what the petitioner in substance is seeking in this petition is not

redressal of his grievance, but under the garb thereof seeks to

.

have some kind of action initiated against the private respondent.

7. An employee is normally aggrieved by the transfer as

the same results in dislodging of his family and does at many

occasions create other hardships, but then an employee has no

right to claim a right for being posted at a particular station.

8. Intriguingly, this is an unique case where the

petitioner has no grievance against his posting at the same

station i.e. Kullu, but has taken strong exception to being posted

as DFO (HQ) with the office of CCF, Kullu instead of being posted

as DFO (WL), Kullu. Therefore, clearly the petition is not

maintainable.

9. As a last ditch effort, the petitioner would claim that

the transfer has been effected by a colourable exercise of power

only to accommodate respondent No.3. The petitioner is at pains

to point out that because respondent No.2, who was transferred

as DCF, Una and had even assumed charge thereof on 4.9.2020

and refused to handover the charge of the office of DFO(WL),

Kullu, was still shown in the impugned order (Annexure P-5) to be

.

retained at Kullu.

10. However, this argument has been putforth only to

create some kind of doubt in the respondents' action. The

official respondents in its reply to para-3 of the preliminary

submissions have clearly stated that in Forest Department, the

assumption of charge and relinquishment of charge reports are

furnished in Form 50. However, in practice, most of the officers in

the Forest Department, firstly assume the charge and then

relinquish the charge for which no specific time limit has been

specified. But in other departments, the charge assumption and

relinquishment reports are submitted on Form T.R.I. in which

firstly charge relinquishment and thereafter charge assumption

take place.

11. It was in this background that this Court vide its order

dated 24.12.2020 directed the Additional Chief Secretary

(Forests) to file his personal affidavit regarding the averments

made in para-3 of the preliminary submissions.

12. Respondent No.1 has filed its affidavit, the relevant

.

portion whereof reads as under:

"That in case of transfer/posting of officers/officials in the

Forest Department, the charge relinquishment & assumption reports were submitted on Form 50, the provisions for which are provided in Chapter IX under

heading 'Transfer of Charge' and sub heading 'Accounts and Vouchers' on page 331 of the H.P. Forest Manual, Vol-III (Service Matters) (Annexure R-1). However, the

practice in the Forest Department is that most of the

officers firstly assume the charge and thereafter relinquish the charge for which no specific time limit has been specified. But in other departments, the charge

assumption and relinquishment reports are submitted on Form T.R.I. in which the both processes i.e.

relinquishment and assumption take place simultaneously. However, it has come to the notice of the Government that

due to Form 50 conflicting situation arises in most of the cases relating to transfer. In this regard a meeting was

held under the Chairmanship of Additional Chief Secretary (Forests) on 28.12.2020 wherein it has been decided to discontinue the prevailing practice regarding transfer/assumption of charge on Form 50 in the Department of Forests and like all other Government Departments all Class-I (Gazetted) Officers of the Department of Forests henceforth would relinquish/

.

assume the charge, while on transfer/posting, proceeding

on leave or joining the post/duty after availing leave on TR-I Form. Minutes of the meeting are at Annexure R-2. Accordingly, the Government has issued notification on dated 28.12.2020 (Annexure R-3).

13. Once the practice of issuing relinquishment on charge

in a manner as provided and acknowledged by the official

respondent No.1 and corrective measures have now been taken

by the official respondents, we really don't see how and in what

manner the petitioner can be stated to be aggrieved.

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.

.

15. For the reasons stated above, we find no merit in this

petition and the same is accordingly dismissed, so also the

pending application(s), if any. The parties are left to bear their

own costs.

                                     (Tarlok Singh Chauhan)
                                                   Judge


    8th January, 2021
                     r                  (Jyotsna Rewal Dua)
          (GR)                                   Judge