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2009 Supreme(HP) 824
HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE DEEPAK GUPTA & HON’BLE MR. JUSTICE V.K.AHUJA, JJ.
STATE OF H.P. AND ANOTHER
Appellants
VERSUS
L.R. BHARDWAJ AND ANOTHER
Respondents
ANIL MEHTA
Appellant
VERSUS
L.R. BHARDWAJ AND OTHERS
Respondents
LPA Nos. 2 of 2009 and 7 of 2009
Decided on 7-10-2009.
In LPA No. 2 of 2009
For the Appellants:Mr. Rajesh Mandhotra and Mr. Vikas Rathore Deputy Advocate General.
For the Respondent No.1 Mr. B.C.Negi, Advocate.
For the Respondent No.2. Mr. Adarsh K.Vashista, Advocate.
In LPA No. 7 of 2009
For the Appellant:Mr. Adarsh K.Vashista, Advocate.
For the Respondent No.1 Mr. B.C.Negi, Advocate.
For the Respondents Mr. Rajesh Mandhotra and Mr. Vikas Rathore No. 2 and 3. Deputy
Advocate General.
The employer has the power to transfer an employee outside the cadre, provided it does not result in a reduction of pay or change in promotion avenues, and is justified based on public interest and administrative exigencies.
Headnote:
Transfer - Cadre Post - Fundamental Rule 15, Civil Services Regulations - The court discussed the power of the employer to transfer an employee outside the cadre, emphasizing that it should not result in a reduction of pay or change in promotion avenues. The court highlighted the importance of public interest and the employer's right to post an employee outside the cadre with valid justification. The judgment also referenced the decision in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another, (2001) 8 SCC 574, which emphasized that transfer is a condition of service necessary in public interest and efficiency in public administration, and interference is only warranted if the transfer is malafide or against statutory provisions.
Fact of the Case:
The petitioner, an Assistant Engineer (Mechanical), was transferred to a different division within the department. He challenged the transfer, arguing that as a Mechanical Engineer, he should only be posted against a post falling in the cadre of Mechanical Engineers.
Finding of the Court:
The court found that the transfer was justified based on public interest and administrative exigencies. It held that the employer has the power to post an employee outside the cadre, provided it does not adversely affect the employee's emoluments or promotion avenues.
Issues: The main issue was whether the petitioner, as a Mechanical Engineer, could be transferred outside his cadre.
Ratio Decidendi: The court emphasized the employer's right to post an employee outside the cadre with valid justification, as long as it does not result in a reduction of pay or change in promotion avenues. It highlighted the importance of public interest and efficiency in public administration.
Final Decision: The appeals were allowed, the judgment of the learned Single Judge was set aside, and the original application filed by the petitioner was dismissed.
Per Deepak Gupta, J.-These two appeals are being disposed of by a one JUDGMENT since they are both directed against one JUDGMENT delivered by a learned Single Judge of this Court in CWP(T) No. 1561 of 2008.
2. Briefly stated the facts of the case are that Shri L.R.Bhardwaj, here-in-after referred to as the petitioner was working as Assistant Engineer (Mechanical) in the department of Irrigation and Public Health, H.P. The petitioner was promoted to the post of Executive Engineer (Mechanical) on 20.10.1999. He was then posted as Executive Engineer (Mechanical) in the I & P H Division No. 2, Shimla. He remained there till 20.09.2003. He was then transferred to Tube Well Division Gagret, District Una and joined as such on 1.10.2003. It appears that the petitioner made a request for his transfer to Shimla. He was transferred to P & I Unit-II Shimla vide notification dated 10.10.2007. He joined the said post on 15.10.2007. He thereafter made a representation that though he had been posted at Shimla he had been wrongly adjusted against a post meant for Civil Engineer and he prayed that he may be posted as Executive Engineer (Mechanical) in I & PH Mechanical Division, Shimla.
3. The Engineer-in-Chief on 6.6.2008 sent a communication to the Secretary of IPH that there are two separate cadres of Mechanical Engineer and Civil Engineer in the IPH Department. According to him, the Mechanical Engineers and Civil Engineers are recruited, promoted and posted against their cadre posts only. Resultantly, the petitioner was transferred to Mechanical Division No.2 vice Shri Anil Mehta, who is referred to as respondent No.3. His transfer was later cancelled on 20.6.2008 in the public interest. This order was challenged by him in the original application, which was transferred to this Court.
4. The main ground raised by the petitioner was that since he is a Mechanical Engineer he can only be posted against a post falling in the cadre of Mechanical Engineers and could not have been posted outside his cadre. The learned Single Judge accepted this contention and held that the Mechanical Engineer has to discharge the work of mechanical work whereas the Civil Engineer has to look after the civil works. The learned Single Judge also held that the orders of transfer which were issued on 13.6.2008 could not have been modified within a week on 20.6.2008 without showing what was the public interest or administrative exigency involved. According to the learned Single Judge no reasons have been given by the State to show why the earlier order was reversed. He, therefore, set-aside the order dated 20.6.2008.
5. The JUDGMENT of the learned Single Judge has been challenged both by the State as well as by Shri Anil Mehta.
6. The main ground raised by the State that it is the prerogative of the employer to decide where a particular employee should be posted. It has also been urged that the learned Single Judge has not taken into consideration the supplementary affidavits which were filed in the writ petition pursuant to the directions issued by a Division Bench. Reference has been made to the order dated 25.9.2008 passed by a Division Bench prior to the admission of the writ petition wherein the State was directed to file a supplementary affidavit. This supplementary affidavit was filed on 17th October, 2008 in which reasons have been given for the transfer of the petitioner. In this supplementary affidavit, it has been clearly stated that Civil as well as Mechanical Engineers have been posted in Shimla Division No.II since its inception in 1983. It is denied that Division No.II is exclusively meant for Mechanical Engineers. It is submitted that initially the post of Executive Engineer was created vide notification dated 22.1.1999 by upgrading the post of Assistant Engineer (Civil) from Survey and Investigating Division. At that time, the justification for creation of the post on the Mechanical side was that the Officer-in-charge holding the said post wa
