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2022 Supreme(HP) 130
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
VIJAY KALIA S/O PARKASH CHAND - Appellant
Vs.
STATE OF HIMACHAL PRADESH THROUGH SECRETARY(HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA - Respondent
CIVIL WRIT PETITION No. 3792 OF 2021
Decided On : 13-04-2022
Advocate Appeared:
For the Appellant :MR. ANUP RATTAN, ADVOCATE
For the Respondent:MR. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL, MR. AJAY SHANDIL, ADVOCATE.
Point of Law: Employer has unfettered power to transfer of its employees save and except on the ground of malafide or arbitrariness.
Headnote:
Transfer orders - Power to transfer of its employees - Ground of malafide – Arbitrariness – Right of contract employee to make a request for transfer by transferring a regular employee was considered - Transfer is an incidence of service and government employees are supposed to be transferred and posted anywhere in the State . The transfers of the petitioner and that of respondent No. 4 are effected after the approval of the competent authority.
Finding of the Court:
Right of contract employee to make a request for transfer by transferring a regular employee was considered. In the instant case, the facts do not reveal as to whether respondent No.2 had request for her transfer or not. Even otherwise, e petitioner himself had got his transfer from CHC, Gangath to CH, Indora in the recent past, on a D.O. Note, that too against a contract employee, petitioner is clearly estopped from raising such plea
Result: Petition dismissed.
ORDER :
By way of instant petition, petitioner has prayed for the following substantive relief:-
“i “That transfer orders dated 7.7.2021 (Annexure P-2) may kindly be quashed and set aside in the interest of justice and fair play.”
2. The grievance of the petitioner is that impugned transfer order dated 7.7.2021, whereby the petitioner has been transferred from Civil Hospital, Indora, District Kangra, H.P. to Dr. RPGMC&H, Tanda, District Kangra, H.P is vitiated on the grounds firstly that petitioner was transferred within a short span of less than five months, secondly, the transfer was on the basis of D.O. Note, thirdly, the impugned order was in violation of the “Comprehensive Guiding Principles-2013” inasmuch as respondent No.2 being a contract employee could not have been transferred before completion of three years and lastly, that transfer was effected during ban period.
3. Respondent No.1 has contested the claim of petitioner on the ground that petitioner was a Class-I officer and as such, normal tenure prescribed for an employee vide comprehensive Guiding Principles 2013 was not applicable. It has also been contended that the impugned transfer order was effected with prior approval of competent authority, in relaxation of ban on transfer/contract policy.
4. Respondent No.2 also filed a separate reply and pointed out that petitioner himself was a recipient of a D.O. Note in the past. Petitioner was transferred from Community Health Centre, Gangath to Civil Hospital, Indora on the basis of D.O. Note and in that case also, a contractual employee was transferred vice petitioner.
5. We have heard learned counsel for the parties and have also gone through the record carefully.
6. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer of its employees save and except on the ground of malafide or arbitrariness. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other.
7. In S.K. Nausad Rahaman and others vs. Union of India and others, Civil Appeal No. 1243 of 2022, decided on 10th March, 2022, the Hon’ble Supreme Court has held as under: -
“24. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.
25. First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.”
8. In Mohd. Masood Ahmad vs. State of U.P. & Others, (2008)1 SCC 180, the Hon’ble Supreme Court has held as under: -
“7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Articl
