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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir and Sandeep Sharma, JJ.
Satish Chandra Mishra - Petitioner
Versus
Union of India & Others - Respondents
CWP No. 2013 of 2016
Decided On : 17-08-2016
Transfer - Administrative Exigency - HRM Manual SJVN Transfer Policy 5.0 - [5.0] - The court discussed the Transfer Policy and emphasized that transfer is an incidence of service and no individual has any right to remain posted at a particular place of his choice. The employer is entitled to pass an order of transfer in administrative exigency as well as in public interest. The court found that the petitioner's transfer was made in exigency of service and no fault could be found with this action of the respondent-Corporation.
Fact of the Case:
The petitioner, an employee of the respondent-Corporation, was transferred from his present place of posting to Dehradun, Uttarakhand. The petitioner challenged the transfer order, alleging that it was a result of a colorable exercise of powers and was made solely to harass him. The petitioner contended that his transfer was not in public interest and was a case of victimization. The respondent-Corporation argued that the transfer was made in public interest and administrative exigency.
Finding of the Court:
The court found that the petitioner's transfer was made in exigency of service and no fault could be found with this action of the respondent-Corporation. The court noted that the petitioner had served for more than 8 years at his previous posting and that the transfer was made to meet the organizational requirement. The court also found that there was no evidence to support the petitioner's claim of malafide exercise of powers by the respondent No.5.
Issues: The main issue was whether the petitioner's transfer was made in public interest and administrative exigency or if it was a result of a colorable exercise of powers and victimization.
Ratio Decidendi: The court emphasized that transfer is an incidence of service and no individual has any right to remain posted at a particular place of his choice. The employer is entitled to pass an order of transfer in administrative exigency as well as in public interest. The court found that the petitioner's transfer was made in exigency of service and no fault could be found with this action of the respondent-Corporation.
Final Decision: The court dismissed the writ petition, finding it devoid of any merit, and vacated any interim direction. All miscellaneous applications were disposed of.
Sandeep Sharma, J.
Being aggrieved with the Office Order-839/16, dated 22.07.2016 (Annexure P-2), (for short ‘impugned transfer order’), whereby petitioner has been ordered to be transferred and posted in Regional Office, Dehradun, Uttarakhand, has approached this Court by way of present writ petition seeking therein following reliefs:-
“(i). That a writ in the nature of Certiorari for quashing and setting aside the impugned transfer order (Annexure P-2) may very kindly be issued against the respondents.
(ii) That a writ in the nature of Mandamus may kindly be issued against the respondents directing them to allow the petitioner to complete his normal tenure of three years at the present place of posting in terms of Annexure P-3.
(iii) That the respondents may further be directed to produce the entire record of the case for the kind perusal of this Hon’ble Court.
(iv) Any other or further relief as this Hon’ble Court deem just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents.”
2. Briefly stated facts necessary for adjudication are that the petitioner was appointed as Deputy Manager in the respondent-Corporation in the year 1996 and thereafter he served at different places of posting and vide impugned order he has been transferred and posted in Regional Office, Dehradun, Uttarakhand. Perusal of impugned order suggests that the present petitioner, who was serving as Additional General Manager (P&A) vide Employment No. 10084 (for short ‘AGM’) was serving in ERP Cell, Corporate Office, Shimla, before his transfer/posting at Regional Office, Dehradun. Perusal of impugned order also suggests that the petitioner stands relieved from ERP Cell on the date of issuance of letter dated 22.7.2016 with the direction to report to Executive Director (RO), Dehradun for further duties.
3. As per petitioner, action of respondents in transferring him from present place of posting to Dehradun is in violation of Transfer Policy (Annexure P-3), wherein vide clause-5.0 ‘Specific Tenure’ has been provided, relevant portion thereof is reproduced herein below:
HRM Manual
SJVN Transfer Policy
1.0 Objectives:
1.1 … … … … … …
2.0 Scope and Application
2.1 … … … … … …
2.2 … … … … … …
3.0 Definition:
In these rules, unless the context otherwise requires:-
(a) “Transfer” means Change of Head Quarter/Station but does not include rotation from one Deptt. To another Deptt. At the same Head Quarter/Station.
(b) “Non-Family Station” means a non-family station declared under Para 2.7 of HRA Rules.
(c) “Power Plant” means a power-generating unit including Dam areas under construction as well as running.
(d) “Competent Authority”
i) D(P) for all Transfers.
ii) HOP for transfers within the Project for employees upto E3 level.
(e) “Field Posting” means posting at Project/Power Plant where work involves Construction, Operation & Maintenance and excludes personnel posted in Design, Planning, Monitoring, Contracts etc.
(f) “Corporate Office” means offices at Shimla, Parwanoo & Delhi or any offices other than offices at project/plant site.
(g) “Project” means area/place where construction, execution, erection & commissioning including Survey/DPR works with respect to Power Project is carried out.
4.0 Mode of Transfer
4.1 Transfer will be effected in the following heads:
a) From Corporate Office to Project/plants and Vice-Versa
b) Within the same Project/plant
c) One Project/plant to another Project/plant.
d) From Non-family Station to Family Station.
5.0
Tenure:
5.1 The normal tenure of posting will be as under for all stations:
Executives and Supervisors - 3 years
Workmen - 5 years
5.2 On completion of tenure employee will be considered for transfer. However, employees may be transferred before expiry of tenure on medical grounds and in exigency of work. While considering transfer on medical ground. Competent Authority may refer the case to Company Medical Doctor/Specialist/Medical Board, for opinion.
6.0 Transfer from C
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