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2011 Supreme(HP) 2229
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Deepak Gupta, J.
Pratap Singh Chauhan … Petitioner.
Versus
State of HP & Ors.…Respondents.
CWP No. 2844 of 2010.
Decided on: 18.6.2011.
Mr. Ajay Sharma, Advocate.
Mr. Vivek Singh Thakur, Addl. AG. Ex-parte.
Mr. Adarsh Sharma, Advocate.
Mr. B.C.Negi, Advocate.
Headnote:
Transfer of Employees - Administrative Interference - AIR 1989 Supreme Court 1774, AIR 1992 Supreme Court 519, AIR 1993 Supreme Court 2444, (2004) 11 Supreme Court Cases 402 - The judgments discussed the scope of interference in the administrative action of transfer of employees by the High Court under Article 226 of the Constitution of India. The courts emphasized that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. The judgments highlighted that transfer is an incident of government service and a government servant does not have a legal right to claim any vested right to work at a particular place. The courts also emphasized that administrative guidelines or policies for regular transfer do not confer any legally enforceable rights to the employee and that the courts should not act as appellate authorities over transfer orders unless there are strong and convincing reasons for interference.
Fact of the Case:
The case raised questions regarding the scope of interference in the administrative action of transfer of employees by the High Court under Article 226 of the Constitution of India. The judgments discussed various instances where transfer orders were challenged by employees based on personal grounds such as the location of their spouse's employment or their children's education.
Finding of the Court:
The courts found that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. The courts emphasized that transfer is an incident of government service and a government servant does not have a legal right to claim any vested right to work at a particular place. The courts also highlighted that administrative guidelines or policies for regular transfer do not confer any legally enforceable rights to the employee and that the courts should not act as appellate authorities over transfer orders unless there are strong and convincing reasons for interference.
Issues: The issues revolved around the legal framework governing the interference in the administrative action of transfer of employees by the High Court under Article 226 of the Constitution of India. The courts addressed the question of whether transfer orders made on administrative grounds or in public interest can be interfered with by the courts and the legal rights of government servants in claiming a particular place of posting.
Ratio Decidendi: The ratio decidendi of the judgments emphasized that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. The courts highlighted that transfer is an incident of government service and a government servant does not have a legal right to claim any vested right to work at a particular place. The courts also emphasized that administrative guidelines or policies for regular transfer do not confer any legally enforceable rights to the employee and that the courts should not act as appellate authorities over transfer orders unless there are strong and convincing reasons for interference.
Final Decision: The final decision of the courts was to set aside the orders of the High Court that interfered with the transfer of employees, emphasizing that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides.
Deepak Gupta, J.
1. This petition raises certain important questions of law. The first question which arises is with regard to the scope of interference in the administrative action of transfer of an employees by the High Court in exercise of the jurisdiction vested in it under Article 226 of the Constitution of India.
2. There are number of judgments by various Courts on this aspect. In Union of India and others v. Sh. H.N. Kirtania, AIR 1989 Supreme Court 1774 the Apex Court was dealing with a case where a Central Government Officer was transferred of Calcutta and a Learned Single Judge of this Court granted an interim injunction against the transfer order and issued a direction to the employer to permit the petitioner to join duty at Calcutta. A Division Bench of the Calcutta High Court confirmed the order. The Union of India filed an appeal and in this appeal the Apex Court held as follows:-
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer. x x x x x x x x x x x x x x x x x x x x”
3. In Bank of India v. Jagjit Singh Mehta, AIR 1992 Supreme Court 519 the Apex Court was dealing with a case where an employee who was a clerk was posted from Chandigarh to District Giridih in the State of Bihar on his promotion to the Officer Grade. The High Court of Punjab Haryana allowed the petition and directed the bank to transfer the petitioner and post him somewhere in Chandigarh, since the wife of the petitioner was working in the office of Advocate General Punjab at Chandigarh. The Apex Court held as follows:-
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariable be one of their choice, even though their -3preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. x x x x x x x x x x x x x x x x x x x x x x x x x x
