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2014 Supreme(HP) 544
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Coram (Division Bench)
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Acting Chief Justice.
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
CWP No. 879 of 2014 Judgment reserved on: 12.5.2014 Date of Decision : May 14,201 4.
Umesh Kumar SharmaVersus State of Himachal Pradesh and others.
For the Petitioner:Mr. M.L.Sharma, Senior Advocate, with Mr. S.C.Sharma, Advocate.
For the respondents:Mr. Shrawan Dogra, Advocate General, with Mr. Romesh Verma, Mr. V.S. Chauhan, Addl. AGs, Mr. J.K.Verma and Mr. Kush Sharma, Dy. AGs for respondents No. 1 and 2.
Mr. C.N.Singh, Advocate, for respondent No.3.
Headnote:
Transfer - Challenge to order of transfer - Articles 14 and 16 of the Constitution of India - [1974 Act, 1986 Act, 1989 Act, 1991 Act, 1993 Act, 1995 Act, 2001 Act, 2003 Act, 2004 Act, 2010 Act] - The court discussed the legal provisions related to the transfer of government employees, emphasizing that transfer is an incident of service and the government has the discretion to decide on transfers in public interest and administrative exigency. The court cited various judgments to establish that unless a transfer order is vitiated by malafides or violates statutory provisions, the courts should not interfere with transfer orders.
Fact of the Case:
The petitioner, a Lecturer in English, challenged the order of transfer on the grounds of political malafide, administrative exigency, and public interest. The respondent No.3 had retired, and the petitioner was transferred to fill the vacancy. However, the respondent No.3 got an extension, resulting in the petitioner being sent back to his original place of posting.
Finding of the Court:
The court found that the order of transfer was made in administrative exigency and public interest. It emphasized that the petitioner's having joined at the new place did not create an indefeasible right to claim to remain posted there, especially when no malafides or violation of statutory provisions were established.
Issues: The issues involved the validity of the order of transfer, the petitioner's entitlement to remain posted at the new place, and the administrative exigency and public interest in effecting the transfer.
Ratio Decidendi: The court held that transfer is an incident of service, and the government has the discretion to decide on transfers in public interest and administrative exigency. It cited various judgments to establish that unless a transfer order is vitiated by malafides or violates statutory provisions, the courts should not interfere with transfer orders.
Final Decision: The court dismissed the writ petition, finding no merit in the petitioner's claims, and left the parties to bear their own costs.
Tarlok Singh Chauhan, Judge Challenge in this petition has been laid to the order dated 1.2.2014 (Annexure P-3) whereby the petitioner’s transfer to the Govt. Senior Secondary School Mandi (Girls) has been cancelled and he has been directed to join the place of earlier posting at GSSS, Rewalsar, District Mandi.
2. The petitioner is working as Lecturer in English and has challenged this order of transfer on the ground that the same has been passed within a short span of one month on account of political malafide and although the petitioner had already joined at GSSS, Mandi (Girls), however, in the impugned order of transfer, he is still shown to be under transfer from GSSS, Rewalsar to GSSS, Mandi (Girls). The petitioner has further contended that the order of transfer is based on extraneous reasons without considering the administrative exigency and not in public interest.
3.The respondent No.3 filed reply to the petition supporting the order of her appointment on extension at GSSS, Mandi (Girls) and it was alleged that the transfer order dated 2.1.2014 had in fact been obtained by the petitioner vide D.O. Note No. 110843 dated 26.12.2013 and, therefore, no indulgence was required to be shown in favour of the petitioner. It was further stated that the petitioner had been working as Lecturer in English within a radius of 25 KM since the year 2003. Be it stated that the respondent No.3 had in fact retired from service on 31.12.2013 from GSSS, Mandi (Girls) and on account of the vacancy caused by her retirement, the petitioner was transferred to the said post. The petitioner in fact had already joined on 1.1.2014. However, in the meanwhile, the respondent No.3 got extension in service w.e.f. 1.1.2014 to 31.12.2014 and was posted at GSSS, Mandi (Girls) resulting in the petitioner being sent back to his original place of posting i.e. GSSS, Rewalsar, District Mandi.
4.The respondents No. 1 and 2 filed their reply wherein it was stated in the preliminary submissions as under:
“1. That the petitioner is a Lecturer (School Cadre) English and is borne in the State Cadre post. As such, he can be transferred within the State of Himachal Pradesh in the exigency of service as well as in public interest where the respondent department has its administrative units/GSSS with Subject English stream against which no cause of action accrues to the incumbent petitioner being a mandatory service condition. Therefore, the petitioner is not entitled to file and maintain the present civil writ petition before this Hon’ble Court and the same may kindly be dismissed in the interest of justice on this ground alone. 2.That neither any legal and fundamental right of petitioner has ever been infringed in any manner nor any cause of action has accrued to him to file and maintain this petition. In fact the petitioner was transferred without TTA/Joining Time vide Annexure P-1 dated 31.12.2013 with the prior approval of the Competent Authority in condonation of short stay and in relaxation of ban on transfer against vacancy being caused due to the retirement of present incumbent i.e. respondent No.3. Accordingly, the petitioner joined at GSSS (Girls), Mandi on 1.1.2014, but the respondent No.3 got extension of one year in service vide order dated 29.1.2014 with the prior approval of competent authority on departmental file. Therefore, the transfer order dated 1.1.2014 was cancelled vide order dated 1 .2.2014. It is pertinent to mention here that the post of lecturer English has also been filled at GSSS, Riwalsar, District Mandi due to promotion.”
5.The petitioner filed rejoinder to the reply filed by respondent No.3 wherein it was pointed out that vide notification No. Shiksha-11-Chha (10)-2/2009 dated 23rd September, 2010, the reemployment of teachers had been done away with by the previous government, however, the said notification had been cancelled by the present government which was absolutely illegal. It is further submitted that the respondent N
