Himachal Pradesh High Court

Dalip Singh vs State Of H.P. & Others on 9 May, 2023

Bench: Vivek Singh Thakur, Sushil Kukreja

                                                1




    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA


                                    CWP No.2260 of 2023




                                                                           .

                                    Date of Decision: May 9, 2023


    Dalip Singh                                                                 ...Petitioner.





                                             Versus

    State of H.P. & 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

    For the Petitioner:             Mr.Shyam Singh Chauhan, Advocate.
    For the Respondents:            Mr.Sidharth         Jhalta,       Deputy          Advocate
                                    General


    Vivek Singh Thakur, J (Oral)

Petitioner has filed present petition assailing his

transfer order vide impugned Office Order dated 18.04.2023,

whereby he has been transferred from GSSS Drabil (Sirmour) to

GMS Giankot under Complex GSSS Bharoti, District Sirmour.

2. Grievance of the petitioner is that he is serving in the

hard area, but he has been transferred without giving him option

of stations for posting him in one of those stations and that too

on the basis of U.O. Note.

3. Record has been produced. Perusal of record

indicates that Administrative Department/concerned authority

1 Whether reporters of the local papers may be allowed to see the judgment?

has issued transfer order on the basis of U.O. Note No.Secy/CM-

22059/2022-VIP-A-28846, dated 10.04.2023, which was

generated and approved on the basis of recommendation of

Cabinet Minister alongwith 33 recommendations made by him.

Record also indicates that there is no application of mind by the

competent authority and authority has acted only on the basis of

U.O. Note.

4. For adjudication of present case, 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 reported in 2010(3) Shim.LC 379, decided on 18.06.2011;

CWP No.3530 of 2011, titled as Babita Thakur vs. State of H.P. and

others reported in 2011(2) Shim.LC 28; 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

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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 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 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

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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 r administration reverses its decisions day in and

day out, that the courts are forced to intervene.

5. In the similar circumstances, observation made by

Coordinate Bench of this High Court in CWP No. 2621 of 2020 titled

as Lekh Raj vs. State of HP reported in 2020 SCC Online HP 3429 is

also relevant, which reads as under:-

"8.However, the moot question poised in the instant petition is the scope of writ petition where the orders of transfer are proposed/generated by the local MLA

giving a long list of employees, who are to be transferred and then such recommendations are thereafter got implemented through the Hon'ble Chief Minister, leaving virtually little or no scope for any discretion or taking any independent decision for the administrative department.

9. ..........

10. Before the recommendations could reach the administrative department, the same were placed before the Hon'ble Chief Minister, who appended his

note on 03.07.2020 "May be done as proposed". It appears that all the proposed transfers were approved as it is, without even consulting the administrative authority.

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10A. It is more than settled that 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. Obviously, the administrative department in such

circumstances, had no choice whatsoever, but to implement the recommendations made by the local MLA as approved aforesaid."

6. In the aforesaid facts and circumstances and in the

light of pronouncements of this Court, we have no other option

but to quash the impugned transfer order and the same is

quashed accordingly.

7. So far as, grievance of the petitioner that he has not

been given choice for posting at one station out of stations of his

choice, petitioner is at liberty to make such representation to the

concerned authority within a week from today and, in case, such

representation is preferred, same shall be decided by the

concerned authority within two weeks thereafter.

8. It is also made clear that it is not verdict of the Court

that in absence of representation, petitioner cannot be