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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Satyen Vaidya, JJ.
Vipender Kalta - Appellant
Versus
State Of H P & Ors. - Respondents
C.W.P. No. 2862 of 2021
Decided On : 20-07-2021
Transfer - Administrative Exigency - - [Transfer is a condition of service. It 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. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure. The scope of judicial review in transfer matters is very limited. The Court cannot interfere in the transfer. The Court cannot substitute its own opinion for the opinion of the employee. The elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. Bringing political pressure for transfers is prohibited. If any Government servant brings political pressure regarding his posting to a particular place at any time, in contravention of the instructions contained in Circular No.SI AA SU EE 26 SE NOU VA 93, dated 22.5.1993, official Memorandum No.DPAR 41 STR 94, dated 5.8.1994 and Official Memorandum No.SI AA SU EE 54 SE NOU VA 93, dated 19.12.1994, he shall be proceeded with accordingly. It shall also be ensured that he is not posted to such a post. The citizens have a fundamental right to good governance, which is possible only if government servants are politically neutral and are not transferred or otherwise victimized at the instance of a political party or politician. The government machinery has to serve well the people, their functioning and official routines are to be insulated against the extraneous influences. The administrative authority can consider recommendations of the MLAs or MPs or Ministers concerned, that too, in case they have received complaints regarding the working of the government servants seeking their transfer, however even then the final decision in this regard has to be taken by the administrative department as the politician cannot don the rule of administration. Rule of law contemplates governance of laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who has no role in the functioning and business of the administration, therefore, the impugned transfer of the petitioner on the basis of such recommendations cannot be sustained and is accordingly quashed. The government would be well advised not to entertain much less encourage such extra constitutional authority to interfere with the administration and governance of the State, or else, there is every likelihood of there being a complete breakdown of rule of law. The Government would be well advised to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.
Fact of the Case:
The petitioner filed a petition challenging the transfer order on the grounds that the transfer was made solely on political consideration, at the instance of a person who has no concern with the administration or functioning of the department.
Finding of the Court:
The Court found that the transfer was made solely on political consideration, at the instance of a person who has no concern with the administration or functioning of the department. The Court held that the transfer was not made in public interest or administrative exigency, and was based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive, amounting to mala fide and colourable exercise of power.
Issues: The main issue was whether the transfer was made in public interest or administrative exigency, or based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive.
Ratio Decidendi: The Court held that the transfer should be made in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure. The Court also emphasized that the citizens have a fundamental right to good governance, which is possible only if government servants are politically neutral and are not transferred or otherwise victimized at the instance of a political party or politician.
Final Decision: The Court quashed the impugned transfer of the petitioner, as it was made solely on political consideration, at the instance of a person who has no concern with the administration or functioning of the department, and was not made in public interest or administrative exigency.
JUDGMENT
Tarlok Singh Chauhan, J. - This case illustrates how people, having nothing to do with the administration and governance of the State, are calling the shots being in some kind of dominating position and getting the employees, who happen to be the government servants, transferred as per their wishes and choice by issuing recommendations to this effect and the same, in turn, are unfortunately being acted upon.
2. Aggrieved by the order of transfer, the petitioner has filed the instant petition for the grant of following substantive reliefs:
"To issue necessary writ, direction and order thereby quashing and setting aside impugned transfer order dated 29.4.2021, Annexure P-1, and also joining letter dated 5.5.2021 Annexure P-2."
3. The main ground, assailing the order of transfer, is that such transfer has been effected without there being any public interest or administrative exigency, rather the same has been made on the basis of a D.O. Note No. 280438 dated 25.3.2021 and the same, therefore, is not legally tenable.
4. In order to satisfy ourself regarding veracity and correctness of the allegations, we called upon the official respondents to produce before us the records of the impugned transfer order.
5. On 14.7.2021, the official respondents produced the record. We were aghast to note that the transfer of the petitioner has been effected on the basis of recommendations made by a politician being a member of the Governing Body of a particular Political Party, who otherwise is, in no manner, concerned or connected with the administration or functioning of the respondents-Department.
6. As a matter of fact, there are two recommendations made by the same person and it is solely on the basis of such recommendations that approval has been accorded by the Hon'ble Chief Minister resulting in the impugned order of transfer.
7. 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.
8. 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.
9. However, this power must be e
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