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2020 Supreme(HP) 627
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Jyotsna Rewal Dua, JJ.
Lekh Ra - Appellant
Versus
State of Himachal Pradesh - Respondent
CWP No. 2621 of 2020
Decided On : 17-08-2020
Mr. Bimal Gupta, Senior Advocate with Ms. Kusum Chaudhary, Advocate., for the Appellant; Mr. Ashok Sharma, Advocate General with Mr. Ranjan Sharma & Mr. Vinod Thakur, Additional Advocates General and Ms. Seema Sharma, Deputy Advocate General., for the Respondent
The main legal point established in the judgment is the limited scope of judicial review in transfer matters, emphasizing the need for transfers to be based on administrative exigency and public interest, not political pressure.
Headnote:
Transfer of Employees - Administrative Tribunal - [TRANSFER OF EMPLOYEES] - [U.O.I and Ors. vs. S.L. Abbas (1993) 4 SCC 357, Mrs. Shilpi Bose and Ors vs. State of Bihar and Ors., AIR 1991 SC 532, State of Uttar Pradesh & Ors. vs. Gobardhan Lai, (2004) 11 SCC 402, State of Madhya Pradesh & Anr. vs. S. S. Kourav & Ors., AIR 1995 SC 1056, M. Sankaranarayanan, IAS vs. State of Karnataka & Ors., AIR 1993 SC 763, N. K. Singh v. Union of India and Ors., AIR 1995 SC 423, Airports Authority of India v. Rajeev Ratan Pandey 2009 (8) SCC 337] - The court discussed the well-settled law on the transfer of employees, emphasizing that transfer is a condition of service and does not adversely affect the status or emoluments of the employee. The court highlighted the limited scope of judicial review in transfer matters and the need for transfers to be made in public interest or administrative exigency, not arbitrarily or under political pressure. The court also emphasized the importance of administrative department's independent decision-making in transfer orders.
Fact of the Case:
The court was flooded with petitions challenging the orders of employee transfers after the closure of the Himachal Pradesh Administrative Tribunal. The case involved the transfer of employees based on recommendations from a local MLA and subsequent approval by the Chief Minister, leaving no scope for independent decision-making by the administrative department.
Finding of the Court:
The court found that the transfer orders were influenced by the recommendations of the local MLA and approved without independent application of mind by the administrative department. The court emphasized the need for transfers to be based on administrative exigency and public interest, not political pressure.
Issues: The issues included the scope of writ petition in cases of transfers proposed by local MLAs, the influence of political recommendations on transfer orders, and the need for independent decision-making by the administrative department.
Ratio Decidendi: The court held that transfer orders should be based on administrative exigency and public interest, not political pressure. It emphasized the limited scope of judicial review in transfer matters and the importance of independent decision-making by the administrative department.
Final Decision: The court quashed and set aside the transfer orders, highlighting the lack of administrative exigency and public interest in the transfers influenced by political recommendations.
JUDGMENT
Tarlok Singh Chauhan, J. (Oral) - This Court of late, more especially, after the closure of the Himachal Pradesh 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 bonafide or as a measure of punishment.
7. The law regarding interference by Court in
