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2020 Supreme(HP) 413
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Jyotsna Rewal Dua, JJ.
Sheela Suryavanshi - Appellant
Versus
State of Himachal Pradesh - Respondent
Civil Writ Petition No. 511 of 2020
Decided On : 26-08-2020
Ram Murti Bisht, Advocate, Ashok Sharma, Advocate, Ranjan, Advocate, Vinod Thakur, Advocate, Svaneel Jaswal, Advocate, Vinod Chauhan, Advocate
The main legal point established in the judgment is the prohibition of malafide transfers and the importance of fair and transparent transfer policies to prevent monopoly and ensure equal treatment of employees.
Headnote:
Transfer - Malafide Transfer - B. Varadha Rao vs. State of Karnataka & Others, (1986) AIR SC 1955; Mrs. Shilpi Bose and Others vs. State of Bihar & Others, (1991) AIR SC 532; Rajendra Roy vs. Union of India and another, (1993) AIR SC 1236 - The judgment discusses the principles of malafide transfer as laid down by the Supreme Court in various cases, emphasizing the need for transfers to be made in public interest and for administrative reasons, and the prohibition of transfers made for accommodating another person for undisclosed reasons. The court also highlights the importance of fair and transparent transfer policies to prevent monopoly and ensure equal treatment of employees.
Fact of the Case:
The petitioner, a Lecturer (English), challenged a transfer order on the grounds of malafide intention to accommodate another person and lack of administrative exigency. The petitioner had been transferred vice a private respondent, who had requested the transfer on medical grounds.
Finding of the Court:
The court found the transfer to be malafide, as it was made to accommodate the private respondent with no reasonable basis. However, the court did not grant the petitioner the right to be retained at the current posting, emphasizing that 'hard cases make bad law' and the need to prevent manifest injustice to other teachers.
Issues: The main issue was whether the transfer was made on administrative exigency or to accommodate the private respondent, and whether the petitioner was entitled to be retained at the current posting.
Ratio Decidendi: The court emphasized the principles of malafide transfer, the need for fair and transparent transfer policies, and the prevention of monopoly in transfer decisions. It also highlighted the importance of ensuring equal treatment of employees and the duty of the state to act as a 'model employer'.
Final Decision: The court directed the transfer of both the petitioner and the private respondent outside their home districts within two weeks, with the aim of preventing adjustment and ensuring meaningful transfers.
JUDGMENT
Tarlok Singh Chauhan, J. - The petitioner is a Lecturer (English), who joined Government Senior Secondary School, Sanjauli, on 16.08.2017 and was thereafter ordered to be transferred vice private respondent vide order dated 23.01.2020 and aggrieved thereby has filed the instant petition for the grant of following substantive relief:- (i) That the impugned transfer order dated 23.01.2020 (Annexure P-1) may kindly be quashed and set aside.
2. It is argued by Shri Ram Murti Bisht, learned Advocate, for the petitioner, that the order of transfer is not sustainable, as it has been passed on extraneous consideration and with malafide intention to simply adjust private respondent No.3, who at her own request had been posted at GSSS, Theog in July, 2019 and after short stay of six month, on 01.01.2020, on the basis of D.O. note No. 199274, got herself transferred back to GSSS, Sanjauli, dislodging the petitioner.
3. The stand of the official respondents is that the petitioner was transferred vice private respondent No. 3, with the prior approval of the competent authority, on the medical ground of respondent No. 3, which fact though mentioned in the department file but could not erroneously be mentioned on the office order dated 23.01.2020.
4. To similar effect is the stand taken by respondent No. 3, wherein she has highlighted her medical ailment(s). We have heard learned counsel for the parties and have gone through the records of the case.
5. In Black's Law Dictionary 'malafide' is said to be an intentional doing of a wrong act without just cause or excuse, it is done with an intention to inflict an injury or under such circumstances that the law will imply an evil motive to the act.
6. The Hon'ble Supreme Court has considered the question of malafide in case of transfer and the following principles are laid down in the case of B. Varadha Rao vs. State of Karnataka & Others, (1986) AIR SC 1955 :
"The Government is the best judge to decide how to distribute and utilize the services of its employees. 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 consideration or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as in fide. 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 than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
7. Similarly in the case of Mrs. Shilpi Bose and Others vs. State of Bihar & Others, (1991) AIR SC 532 , it is observed by the Supreme Court as under:-
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administrations which would not be conductive to public interest. The administration which would not be conducive to public interest. The
