Kamlesh Kumar vs State Of H.P. And Others
2023 Latest Caselaw 5134 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No.2298 of 2023 Date of Decision: May 04, 2023.

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    Kamlesh Kumar                                                     ...Petitioner





                                      Versus





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

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 Yes.

For the Petitioner : Mr. Vinay Sharma, Advocate.

For the Respondents: Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta , Additional Advocate General for respondents No. 1 & 2.

Vivek Singh Thakur, Judge(Oral)

Petitioner has approached this Court against

impugned transfer order dated 24.03.2023 (Annexure P-1),

whereby, he has been transferred from GSSS Duhak

Dhanayra, District Kangra, H.P., to GHS Kuraina U/C GMSSS

Saho, District Chamba, H.P. vice respondent No.3 Anupama

Sharma.

2. Grievance of the petitioner is that the petitioner

has been transferred from present place of posting to GHS

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

Kuraina U/C GMSSS Saho, District Chamba, H.P., on the basis

of U.O/D.O. Note only in order to adjust respondent No.3,

Anupama Sharma, who was under transfer GSSS Minjgran,

District Kangra to GHS Kuraina U/C GMSSS Saho, District

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Chamba, vide office order dated 18.03.2023 (Annexure P-2).

3. Record has been produced which indicates that

the impugned transfer has been ordered by the Administration

Department, only on the basis of U.O/D.O. Note, dated

21.03.2023 issued at the instance of an MLA, whereas none of

the stations i.e. present place of posting of petitioner or

respondents No.3 falls in the constituency of the said MLA.

4. Reference in this regard can be made to various

pronouncements of this Court, including Ram Krishan vs. District

Education Officer, reported in ILR HP 1979 HIM 481 : 1979 Shim LC

345; A.K. Vasudeva vs. State of H.P. and others, reported in ILR

(Himachal Series) (1981) 10 HIM 359; 1982 Shim LC 104; CWP No.1105

of 2006, titled as Sushila Sharma vs. State of H.P. and others; Sant Ram

Pant vs. State of H.P. and others, reported in 2009 (3) Shim. L.C. 206;

CWP No.2844 of 2010, titled as Pratap Singh Chauhan vs. State of H.P. &

others, decided on 18.06.2011; CWP No.3530 of 2011, titled as Babita

Thakur vs. State of H.P. and others; Amir Chand vs. State of Himachal

Pradesh, reported in 2013 (2) HLR (DB) 648; Sanjay Kumar vs. State of

H.P. and Ors., reported in Latest HLJ 2013 (HP) 1051; Raj Kumar vs.

State of H.P. and Ors., reported in 2015 (1) Him. L.R. (DB) 567; CWP

No.2621 of 2020, titled as Lekh Raj vs. State of H.P. & Ors., decided on

17.08.2020 : 2020 SCC Online HP 3429; CWP No.511 of 2020, titled as

Sheela Suryavanshi vs. Stae of H.P., decided on 26.8.2020; CWP No.2677

of 2020, titled as Shugal Singh vs. State of H.P., decided on 24.9.2020;

CWP No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal

.

Pradesh, decided on 29.9.2020; CWP No.5294 of 2020, titled as Abdul

Hamid vs. State of H.P. and others, decided on 5.1.2021 : 2021 SCC

Online HP 48 : 2021 Lab IC (NOC 215) 65; CWP No.1387 of 2021, titled

as Praveen Kumar vs. State of H.P and others, decided on 31.3.20221;

CWP No.2862 of 2021, titled as Vipender Kalta vs. State of H.P. and

others, decided on 20.7.2021; and CWP No.5721 of 2021, titled as Promila

vs. State of H.P. and others, decided on 8.10.2021. Following principles

propounded in above referred pronouncements may be relevant for the

purpose of adjudication of present petition:-

(a) It is for the employer to see where the Government servant is to be posted. However, there should be no arbitrariness in the action. The transfer cannot be used as an instrument

to accommodate/ adjust the persons without there being any administrative exigency. The underline principle for transfer is public interest or administrative exigency.

(b) Interference from outsiders in day-to-day administration of the State is not warranted and in case such interference is

allowed, it would only mean that the Government servants should run after those who are taking part in

public life and in politics for getting better terms of service and a better place of posting and should do everything to please them and not to please the department by their ability, honesty and integrity and such

interference is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. Therefore, sooner this type of interference is discouraged and stopped, the better for the administration and the people of the State.

(c) An elected representative can only propose the transfer of an employee, that too for genuine and cogent reasons and not by usurping the authority of the administrative

department, who alone is competent to issue the orders of transfer after due application of mind.

        (d)       Public representatives have a right to make
             recommendations,         but    these      can       only     be

recommendations and cannot be taken to be the final word.

(e) The transfer of the petitioner on the recommendation of the

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MLA in the given facts and circumstances by itself would not vitiate the transfer order. After all, it is the duty of the

representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly

within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case.

(f) Whenever any transfer is ordered not by the departments

but on the recommendations of a Minister or MLA, then before ordering the transfer, the views of the administrative department must be ascertained and only after ascertaining the views of the administrative department, the transfer may be ordered if approved by r the administrative department, meaning thereby the views

of the administrative department have essentially to be sought in the matters of transfer. What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative

exigency and / or public interest or that the transfer of employee is necessary for the effective utilization of his/her services.

(g) A recommendation by a peoples representative requesting for a particular course of action in the realm of

administrative functioning may not per se constitute an unauthorized or unwarranted interference or cause

vitiation provided the consequential steps are taken by the authority of administration alone, the nature of action then to be drawn by the administrative department would be contingent on the attending facts. It is only when the

contextual facts demonstrate servile subjugation of a administrative authority to the dictates of an outside entity in power by meekly abdicating his dominion, the resultant order or decision would be impeachable as antithetical to the foundational precepts of governmental functioning. The facts and circumstances of each case will therefore have to be evaluated.

(h) Any person has a right to make a complaint against an employee regarding his conduct to his superiors including the Hon'ble Chief Minister and even request for his

transfer. It is, however, only for the competent authority i.e. administrative department to consider the request and take appropriate action in accordance with law. But when the administrative authorities do not perform their duties and resultantly fair play is denied by the administrative authorities, people turn up to the courts complaining of such blatant case of administrative excess compelling the

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courts to intervene in such matter.

(i) Courts are clearly of the view that normally Courts would

not like to interfere in transfer orders passed in administrative interests. 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.

5. No doubt a public representatives of area has right

to recommend/propose transfer of an employee for valid

genuine and cogent reason(s) related to service or any other

like issue /reason, but such proposal/recommendation must

have some relation/link with his area and department is not

proposed to implement the same without application of mind

as administration of department is not in the domain of public

representatives. Proposal of public representative has to be

considered by assessing it on merit in the light of Guiding

Principles and Instructions regulating the transfer of

employees in consonance with pronouncements of the Court.

6. Record reveals that the impugned order has been

passed without application of mind by the Administration

Department/Competent Authority, but only on the basis of

U.O/D.O Note, generated and communicated at the instance of

a person having no role in Administration of Department.

7. In view of above, the impugned transfer order

dated 24.03.2023 (Annexure P-1) is quashed.

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8. It is made clear that quashing of impugned order

does not mean that respondent authority shall not transfer the

petitioner in any eventuality and in case of administrative

exigency he can be transferred in terms of the policy in

accordance with law.

9. Accordingly, the petition is disposed of, so also the

pending application(s) if any.

10. Petitioner is permitted to produce a copy of this

judgment, downloaded from the web-page of the High Court of

Himachal Pradesh, before the authorities concerned, and said

authorities shall not insist for production of a certified copy but

if required, passing of order can be verified from Website of

the High Court or otherwise.

(Vivek Singh Thakur), Judge.

(Sushil Kukreja) Judge.

May 04, 2023 (subhash)