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2006 Supreme(HP) 414
High Court Of Himachal Pradesh
M.R.VERMA
RAM LAL CHAUHAN - Appellant
Versus
STATE OF H.P. - Respondent
O.A.730 of 2004
Decided On : 12/28/2006
Mr. P.P. Chauhan, Advocate for the Applicant. Mr. Adarash Vashishata, Dy. Advocate General for Respondents No. 1 and 2. Ms. Trisha Sharma, Advocate for Respondent No.3.
The main legal point established in the judgment is that a transfer, not in the public interest or in the exigency of service, cannot be supported and is liable to be quashed and set aside.
Headnote:
Transfer - Administrative Law - [Transfer] - [HPPWD Act, Section 4(1)] - The court discussed the circumstances under which the impugned transfer order was issued and found that it was not in the public interest or in the exigency of service. The court referred to the principle that transfer is a necessary concomitance of every service but could only be effected on certain conditions, and in the absence of public interest, the transfer order cannot be supported. The impugned transfer orders were quashed and set aside.
Fact of the Case:
The applicant sought to quash the transfer order from the office of Engineer-in-Chief at Shimla to National Highway Division, Hamirpur, claiming it was manipulated and illegal. The applicant's children were studying in Shimla, and the transfer would result in the loss of their studies. The applicant filed an original application in the Tribunal, which was treated as a representation but not decided, and he was subsequently relieved from his position.
Finding of the Court:
The court found that the impugned transfer order was not in the public interest or in the exigency of service, and it was issued with a view to accommodate another employee. The court also rejected the respondents' objections regarding misjoinder, non-joinder of necessary parties, and the applicant's clean hands. The court concluded that the impugned transfer orders were quashed and set aside.
Issues: The issues involved the legality of the transfer order, the applicant's cause of action, and the objections raised by the respondents regarding misjoinder, non-joinder of necessary parties, and the applicant's clean hands.
Ratio Decidendi: The court held that the transfer order, not in the public interest or in the exigency of service, could not be supported. The court also rejected the respondents' objections and quashed the impugned transfer orders.
Final Decision: The original application was allowed, and the impugned transfer orders were quashed and set aside. The parties were left to bear their own costs.
M.R. Verma. J. (Retd.) Chairman:- The applicant in this original application has prayed for quashing the order Annexure A-1 dated 6.1.2004 whereby he has been transferred from the office of Engineer-in-Chief at Shimla to National Highway Division, Hamirpur and Annexure A-3 whereby he has been relieved pursuant to the said transfer order.
2. The case of the applicant as made out in the original application is that respondent No.3 was under transfer to the National Highway Division, Hamirpur but managed cancellation of her transfer and the authority approved her adjustment in the office of Engineer-in-Chief against longer stay. In the office of Engineer-in-Chief there are 35-40 Senior Assistants with longer stay than the applicant, therefore, adjustment was made against the post held by one Sita Ram as indicated in the order Annexure A-1 but some one substituted the name of the applicant in place of said Sita Ram. Thus, the impugned transfer order being manipulated order is illegal. Besides the son of the applicant is studying in B.A. II year in a College in Shimla and his daughter is studying in M.Com in Shimla and the impugned transfer will result in loss of their studies. The applicant aggrieved by the impugned transfer order filed O.A. No. 109/2004 in this Tribunal which was treated as a representation to be decided by respondent No.2 within six weeks and till such disposal the operation of the impugned transfer order was stayed. However, no decision on such representation was taken/conveyed to the applicant instead he was relied vide order annexure A-3 dated 5.3.2004. Hence this original application.
3. Respondents No.1 and 2 filed reply which was adopted by respondent No.3. In the reply the respondents have raised the preliminary objections (i) that no legal or equitable right of the applicant has been infringed, therefore, he has no cause of action, (ii) that the applicant has not come to the court with clean hands therefore, the original application deserves to be dismissed, (iii) that the original application is bad for misjoinder and non-joinder of necessary parties as said Sita Ram has not been impleaded as party in this" original application and (iv) that the Competent authority in the Govt. vide directions dated 26.12.2003 directed to adjust respondent No.3 in the office of respondent No.2 vice longer stay (Male employee) without TTA and joining time and before this on 15.12.2005 a request from H.P. Vidhan Sabha was also received and the matter was accordingly dealt with. Since there was no vacancy to adjust respondent No.3 in the office of respondent No.2, therefore, name of the applicant was approved for transfer keeping in view the administrative convenience/efficiency factor and administrative and public interest. Since the direction was to adjust the respondent against longer stay (Male employee) and not the longest stay, therefore, all those who had completed their normal tenure at Shimla were considered and for the reasons aforesaid the applicant was ordered to be transferred. The representation of the applicant after hearing him and inquiring into the allegations of manipulation was dismissed on 28.2.2004.The dismissal order could not be delivered to the applicant as he refused to accept the same. Then it was again attempted to be delivered to him but in the meanwhile he stood relieved on 5.3.2004, therefore, such order was sent to his home address by post and on 19.3.2004 another copy was also supplied to him. It is also claimed that a Govt. servant is liable to be transferred in the public interest anywhere any time in the exigency of service wher.3 the department has its administrative units as such an employee has no cause of action against the employer. Therefore, the original application is bad in law and as such not maintainable. It has also been averred in the reply that mention of name of Sita Ram in the transfer order was a typing error in the stencil which when noticed was corrected but th
