Point of Law: A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or other.

JUDGMENT :

Satyen Vaidya, J.

Heard.

2. By way of instant petition, petitioner has prayed for the following reliefs:

“i) Issue a writ of certiorari thereby quashing and setting aside the impugned transfer order dated 20.03.2023 (Annexure P-1) issued by respondent No. 2.

ii) Issue a writ of mandamus directing the respondents authorities either to allow the petitioner to serve at present place of posting i.e. HPPWD Division, Nalagarh, District Solan or to post him nearby his native place because the petitioner has about two years for his superannuation.”

3. Petitioner has challenged transfer order dated 20.03.2023 (Annexure P-1) on the ground that he has been left with two years of service and is going to superannuate on 31.03.2025. The petitioner further pleaded that his transfer has been ordered just to accommodate respondent No.4 in whose favour a D.O. Note No. 18729 dated 18.3.2023 was issued by the MLA of Doon Constituency.

4. Though, the petitioner has alleged that his transfer has been effected on a D.O. Note, but the petitioner has not even chosen to implead the author of D.O. Note as a party.

5. The petitioner has already completed his normal tenure at present place of posting. He was transferred to HPPWD Division, Nalagarh in the year, 2019 and joined there on 29.06.2019 and since then is working there.

6. A Division bench of this Court in CWP No. 2624 of 2020, titled as Shabnam vs. State of Himachal Pradesh and others, decided on 18th September, 2020 has held as under: -

“2. We have heard learned counsel for the parties. It remains undisputed that prior to the present transfer, petitioner had served in the previous station for more than three years i.e. w.e.f.9.2.2017. The Transfer Policy also provides that a normal tenure at a station would be three years. The grievance of the petitioner is that she has been transferred on a D.O. Note issued by the fourth respondent, who is a MLA. Once, the employee has completed her normal tenure, it is none of her concern that on what basis the transfer order came into effect.”

7. As regards the contention of petitioner regarding his transfer within two years of his retirement, the same cannot be countenanced for the reasons firstly that the date of retirement of petitioner is 31.03.2025 and the impugned order of transfer has been issued on 20.03.2023 i.e. more than two years prior to the date of retirement and secondly, petitioner is holding a Class-II post. As per Clause 5.5 of “Comprehensive Guiding Principles-2013”, there is no bar to transfer a Government employee within two years prior to the date of his retirement. The only advisory is that in case of Class-III and Class-IV officials, they should be posted in the convenient places/stations, subject to vacancy.

8. Further, there is no gainsaying that the transfer is an incidence of service. The 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 the other.

9. 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.”

10. In Mohd. Masood Ahmad vs. State of