The main legal point established is that transfer is an incidence of service, and the power of transfer can be exercised by the employer unless there is an express bar or restraint. The transfer must be bonafide, rational, and in public interest, and employees do not have a vested right to continue in the same place of posting.

Sanjay Karol, J.-The petitioners herein have prayed for the following relief:-

“(i) That the impugned order dated 18.1.2002, Annexure A-6, may be quashed and set aside qua the applicants and they may be allowed to continue in their present cadre i.e. HPPWD 4th Circle, Shimla -3.

(ii) Record of the case may also be called for the perusal of this Hon’ble Tribunal.

(iii) Any other relief deemed proper in the circumstances may also be granted.

(iv) Costs of the application may also be awarded.”

2. Annexure A-6 is the office order dated 18.1.2002 transferring the petitioners from Shimla Division No. III, of the H.P. Public Works Department to other Divisions of the same Department, in and outside Shimla.

3. The petitioners were engaged on work charged basis with the State of Himachal Pradesh. With the passage of time, they were regularized and petitioners No.1 & 2, S/Shri Roshan Lal and Sardip Singh were brought on regular cadre as Telephone Operator w.e.f. 5.2.1990 and petitioner No.3 Shri Kirpa Ram was brought on regular cadre as telephone attendant w.e.f. 1.1.1995. In the year 1995, the posts of Telephone Operator and Telephone Attendant were clubbed with that of Receptionist and S/Shri Roshan Lal and Sardip Singh were confirmed as such on 5.2.1990 and Shri Kirpa Ram was confirmed w.e.f. 1.1.1995.

4. The State of Himachal Pradesh framed “Recruitment and Promotion Rules for the post of Receptionist Work Charged brought in regular cadre in the department of Public Works Himachal Pradesh” (hereinafter referred to as ‘the Rules’). In terms of Rule 3(a), Receptionists are in Circle cadre. However, Rule 17 specifically empowers the State to relax any of the provisions of the Rules with respect to any class or category of persons or post.

5. Vide impugned order dated 18.1.2002 (Annexure A-6), petitioner No.1 Shri Roshan Lal was transferred from Shimla Division-III to 1st Circle, Mandi; petitioner No.2 Shri Sardip Singh was transferred from Shimla Division-III to 8th Circle, Hamirpur and petitioner No.3 Shri Kirpa Ram was transferred from Shimla Division-III to Electrical Circle, Shimla.

6. It is this order which has been impugned primarily on the ground that the petitioners are in Circle cadre and no option/consent for their transfer outside the said Circle was obtained. It is also contended that in the event of any administrative exigency necessitating transfer due to the staff having been rendered surplus, persons junior to the petitioners ought to have been transferred outside the Circle.

7. It is an undisputed fact that the petitioners were deployed in the Metropole MLA Hostel, Shimla to run the telephone exchange and due to the installation of automatic telephone exchange by the H.P. Vidhan Sabha , some of the staff had been rendered surplus.

8. The State being a model employer in its wisdom, rather than dispensing with the services thought it prudent to transfer/adjust the employees outside the Circle. The matter was deliberated at the highest level in the Government and it was so found that out of 18 working Circles within the Himachal Pradesh PWD, the total sanctioned posts of receptionists were 56 and only 49 of them were functional or had been filled up. Out of these 56 posts, in Circle 21 there were 21 sanctioned posts whereas 25 receptionists were working. The matter was further deliberated and it was decided that keeping in view the sanctioned strength vis-à-vis the functional posts the services of 7 surplus receptionists working in the Metropole Sub Division (Circle 21) be transferred to places where no receptionists were working at the relevant time. Accordingly, Shri Roshan Lal was ordered to be adjusted against the 1st Circle, Mandi where neither a sanctioned post existed nor was any person working. Similarly, Shri Sardip Singh was ordered to be posted in the 8th Circle, Hamirpur where there were two sanctioned posts but no one was working on them and Shri Kirpa Ram was sent to the Electrical Circle, Shim