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2023 Supreme(HP) 157
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
Rishav Bhardwaj – Petitioner
Versus
State of Himachal Pradesh and Others – Respondents
C.W.P. No. 6963 of 2022
Decided On : 27-03-2023
Advocate Appeared:
For the Petitioner: Mohan Sharma.
For the Respondent: Arsh Rattan.
Point of Law: Order of transfer is a part of service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless Court finds that either order is mala-fide.
Headnote:
Constitution of India, 1950 - Article 226 - Government servant - Transfer order - Transfer has been effected on basis of D.O - Issue a writ of certiorari thereby quashing and setting aside impugned transfer order issued by respondent No. 2 – A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or other. [Para 9]
Finding of the Court: These documents clearly reveal that in first instance recommendation was made to transfer petitioner from Government Degree College, to Government Degree College, Karsog and later, it was recommended to permanently transfer petitioner to Government Degree College, Karsog - D.O. letter also reveals that petitioner had already been adjusted at Government Degree College, Karsog, on deputation, prior to issuance of said D.O. letter - That being so, petitioner is not entitled to any relief - Further, there is no gainsaying that transfer is an incidence of service - Employer has unfettered power to effect transfer save and except for extraneous reasons - A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or other - Petitioner, in light of above discussion, has not been able to make out a case for interference, with impugned order, in exercise of power under Article 226 of Constitution of India - Thus, Court find no merit in this petition.
Result: Petition dismissed.
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant petition, petitioner has prayed for following reliefs:
(i) Issue a writ of certiorari thereby quashing and setting aside the impugned transfer order dated 28.09.2022 (Annexure P-2) issued by respondent No. 2.
(ii) Issue a writ of mandamus directing the respondents not to implement the transfer order dated 28.09.2022.
(iii) Issue a writ of mandamus directing the respondents authorities to allow the petitioner to serve at present place of posting i.e. GDC Karsog, District Mandi, H.P.
2. Vide notification dated 28.09.2022, petitioner was ordered to be transferred from Government Degree College, Karsog in District Mandi to Government Degree College, Nihri in the same district vice respondent No. 5. Petitioner is working as Assistant Professor (Music-Vocal).
3. Petitioner has taken exception to his above noted transfer order, on the ground that petitioner has been ordered to be transferred without allowing him to complete the normal tenure at Government Degree College, Karsog. His further grievance is that the transfer has been effected, on the basis of a D.O. Note, issued by respondent No. 4. As per petitioner, the impugned transfer has been effected only to accommodate respondent No. 5, without their being any administrative exigency or public interest.
4. The claim of the petitioner has been contested on behalf of the official respondents by filing a reply. It is submitted that petitioner himself had been beneficiary of D.O. letters in the past. As a matter of fact, petitioner got himself posted at Government Degree College, Karsog, on the basis of D.O. letter. He has been working in Government Degree College, Karsog, since 24.12.2019. Petitioner is holding Class-I gazetted post and the condition of normal tenure of three years, as applicable to Class-IV and Class-III employees, will not be applicable in the case of the petitioner.
5. We have heard learned counsel for the parties and have gone through the record of the case carefully.
6. Petitioner has not been able to controvert the fact regarding his adjustment and posting in Government Degree College, Karsog, since 24.12.2019. That being so, petitioner has been transferred after almost two years and nine months. Even otherwise, petitioner is a Class-I Gazetted Officer and the condition of normal tenure of three years, as incorporated in “Comprehensive Guiding Principles 2013” will not come to the aid of the petitioner.
7. As regards, the grievance of the petitioner that his transfer has been effected on the basis of D.O. Note, he again cannot derive any benefit for the reason that he himself has been recipient of D.O. letters in the past. The D.O. letters procured by the petitioner on 05.10.2019 and 17.06.2020 have been placed on record as Annexure R-1 and R-2. These documents clearly reveal that in the first instance recommendation was made to transfer petitioner from Government Degree College, Sarkaghat to Government Degree College, Karsog and later, it was recommended to permanently transfer the petitioner to Government Degree College, Karsog. The D.O. letter, dated 12.06.2020, also reveals that petitioner had already been adjusted at Government Degree College, Karsog, on deputation, prior to issuance of said D.O. letter. That being so, the petitioner is not entitled to any relief.
8. A Co-ordinate Bench of this Court in CWP No. 3195 of 2021 titled as Bhup Singh vs. State of H.P and Another, decided on 30.06.2021 has held as under:
“2. The main grievance of the petitioner is that his transfer has been effected on the basis of D.O. note. The record, which has been produced pursuant to our directions, reveals that the petitioner himself is the beneficiary of the D.O. note, therefore, in such circumstances, he is not entitled to any relief in terms of the repeated judgments rendered by this Court.
3. Reference in this regard can conveniently be made to the judgment rendered by this Court in CWP No. 1387 of 2021, titled as Parveen Kumar vs.
