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2020 Supreme(HP) 97
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ.
Sunita Devi - Appellant
Versus
State Of H P & Ors. - Respondent
Civil Writ Petition No. 1978 of 2019
Decided On : 18-03-2020
Ramakant Sharma, Advocate, Ashok Sharma, Advocate, Vinod Thakur, Advocate, Svaneel Jaswal, Advocate, Bhupinder Thakur, Advocate, Surender Kumar Sharma, Advocate
The transfer of employees should be based on administrative exigency or public interest, and not influenced by recommendations of public representatives. The administrative department should have the discretion to make independent decisions regarding transfers.
Headnote:
Transfer of State Government Employee - Administrative Law - U.O.I and Ors. vs. S.L. Abbas, 1993 4 SCC 357, Mrs. Shilpi Bose and Ors vs. State of Bihar and Ors., 1991 AIR(SC) 532, State of Uttar Pradesh & Ors. vs. Gobardhan Lal, 2004 11 SCC 402, State of Madhya Pradesh & Anr. vs. S. S. Kourav & Ors., 1995 AIR(SC) 1056, M. Sankaranarayanan, IAS vs. State of Karnataka & Ors., 1993 AIR(SC) 763, N. K. Singh v. Union of India and Ors., 1995 AIR(SC) 423, Airports Authority of India v. Rajeev Ratan Pandey, 2009 8 SCC 337 - Transfer is a condition of service and does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time. The employer has unfettered powers to effect transfer subject to certain disciplines. The transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee. The scope of judicial review by Courts/Tribunals against the transfer order is limited and restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
Fact of the Case:
The Minister In-charge recommended the transfer of five persons including respondent No. 3 and specified the stations where they were to be transferred. The transfer proposals were approved by the Minister, leaving no room for the administrative head to take an independent decision. The transfer was made at the behest of public representatives, without considering administrative exigencies or public interest.
Finding of the Court:
The Court found that the transfer was made without considering administrative exigencies or public interest, and was influenced by the recommendations of the Minister and public representatives. The transfer did not withstand judicial scrutiny as it lacked a basis of administrative exigency or public interest.
Issues: The scope of writ petition where the orders of transfer are proposed and implemented by the Minister, leaving no discretion for the administrative department. The influence of public representatives in the transfer process.
Ratio Decidendi: The transfer of employees should be based on administrative exigency or public interest, and not influenced by recommendations of public representatives. The administrative department should have the discretion to make independent decisions regarding transfers.
Final Decision: The transfer order was quashed and set aside, with the parties bearing their own costs.
JUDGMENT
Tarlok Singh Chauhan, J. - This Court of late, more especially, after the closure of the H. P. Administrative Tribunal is flooded with the petitions in which the employees challenge the orders of their transfers.
2. Despite the law on the subject being well settled, yet we find the same is being violated with impunity either by the political executive or by the administrative authority, constraining the employees to have initially approached the Administrative Tribunal and on its closure, this Court unnecessarily clogging its docket.
3. It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to "proper place". It is for the administration to take appropriate decision.
4. Even the administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/ servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees.
5. However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.
6. Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer passed is
