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2020 Supreme(HP) 315
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Jyotsna Rewal Dua, JJ.
Pradeep Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Civil Writ Petition No. 1737 of 2020
Decided On : 26-06-2020
Mandeep Chandel, Advocate, Ashok Sharma, Advocate, Vinod Thakur, Advocate, Vikas Rathore, Advocate, Desh Raj Thakur, Advocate
The main legal point established in the judgment is that the power of transfer must be exercised honestly, bonafide, and reasonably, in public interest, and not based on extraneous considerations. The court's interference in transfer orders is limited to cases of contravention of statutory rules or establishment of malafides.
Headnote:
Transfer - Administrative Law - Fundamental Rule 11, Chapter III, General Conditions of Service - [F.R. 11, Chapter III, General Conditions of Service] - The court discussed the principles governing the transfer of government servants, emphasizing that transfer is an incidence of service and the employer has unfettered powers to effect transfer, subject to certain disciplines. The court highlighted that the power of transfer must be exercised honestly, bonafide, and reasonably, in public interest, and not based on extraneous considerations. It also emphasized that the court's interference in transfer orders is limited to cases of contravention of statutory rules or establishment of malafides.
Fact of the Case:
The petitioner, a government servant, challenged a transfer order on the grounds of personal inconvenience and family disturbance due to the transfer. The petitioner's wife was a state government employee, and they had a baby girl. The petitioner had been travelling daily between stations, spending considerable time on commuting.
Finding of the Court:
The court held that the transfer order was not made with illegal and factual malafides or to accommodate a private respondent. It emphasized that the court does not have the power to annul a transfer order based on personal inconvenience to the employee or family members, as this falls within the exclusive domain of the employer. The court also noted the petitioner's failure to obtain permission for leaving the station and highlighted the government servant's obligation to take proper permission for leaving the station/headquarters.
Issues: The issues involved the legality of the transfer order, the impact on the petitioner's family life, and the petitioner's compliance with the leave rules and regulations.
Ratio Decidendi: The court's decision was based on the principles that transfer is an incidence of service, the employer has unfettered powers to effect transfer, and the court's interference in transfer orders is limited to cases of contravention of statutory rules or establishment of malafides. The court also emphasized the government servant's obligation to take proper permission for leaving the station/headquarters.
Final Decision: The writ petition was dismissed, and the court directed the Chief Secretary to issue appropriate instructions/guidelines regarding government servants' travelling limits and report compliance within three months.
JUDGMENT
Tarlok Singh Chauhan, J. - The petitioner vide office order dated 09.06.2020 has been transferred from G.S.S.S., Arloo, District Una to G.S.S.S., Mundu, District Shimla and aggrieved thereby has filed the instant writ petition for grant of the following substantive reliefs:
"i) That in view of the above mentioned facts and circumstances mentioned hereinabove, the impugned order (Annexure P-1) may kindly be quashed and set aside, in the interest of justice and fair play.
ii) That the respondents may kindly be directed to allow the petitioner to work at his present place of posting i.e. GSSS Arloo, District Una, Himachal Pradesh till the final adjudication of the case."
2. The petitioner was appointed as Junior Basic Teacher (for short 'JBT') in the year 2009 and after having served at GPS Batlahu, Education Block, Bijhri, District Hamirpur, H.P., GPS Ram Nagar, Education Block, Galore, District Hamirpur, Himachal Pradesh was promoted as TGT in the year 2017 and transferred to G.S.S.S., Arloo, District Una, Himachal Pradesh and now vide order dated 09.06.2020, he has been ordered to be transferred to G.S.S.S., Mundu, District, Shimla.
3. It is contended by learned counsel for the petitioner that the impugned transfer order is illegal, unjust and has been issued only to accommodate respondent No.3. It is further contended that the order of transfer if given effect to would adversely affect the family life of the petitioner, whose wife is working as a Staff Nurse, State Government Employee, at RKGMC, Hamirpur and they have a baby girl, who is about one year and four months old and since the wife of the petitioner has been assigned night duty in the isolation ward of the hospital due to pandemic disease of COVID-19, it is the petitioner, who is to look after this baby during night time.
4. We have heard the learned counsel for the parties and have gone through the records of the case.
5. 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.
6. 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 a
