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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, Sushil Kukreja, JJ.
Kamlesh Kumar - Petitioner
Vs.
State of H.P. and others - Respondents
CWP No.2298 of 2023
Decided On : 04-05-2023
Place of posting - Transfer order - Petitioner approached Court against impugned transfer order whereby he has been transferred – Impugned order has been passed without application of mind by Administration Department/Competent Authority - Para 6.
Finding of the Court :
No doubt a public representatives of area has right to recommend/ propose transfer of an employee for valid genuine and cogent reason(s) related to service or any other like issue /reason, but such proposal/recommendation must have some relation/link with his area and department is not proposed to implement same without application of mind as administration of department is not in domain of public representatives - Proposal of public representative has to be considered by assessing it on merit in light of Guiding Principles and Instructions regulating transfer of employees in consonance with pronouncements of Court - Record reveals that impugned order has been passed without application of mind by Administration Department/Competent Authority, but only on basis of U.O/D.O Note, generated and communicated at instance of a person having no role in Administration of Department - Impugned transfer order is quashed.
Result: Petition disposed of.
JUDGMENT :
Vivek Singh Thakur, J.
Petitioner has approached this Court against impugned transfer order dated 24.03.2023 (Annexure P-1), whereby, he has been transferred from GSSS Duhak Dhanayra, District Kangra, H.P., to GHS Kuraina U/C GMSSS Saho, District Chamba, H.P. vice respondent No.3 Anupama Sharma.
2. Grievance of the petitioner is that the petitioner has been transferred from present place of posting to GHS Kuraina U/C GMSSS Saho, District Chamba, H.P., on the basis of U.O/D.O. Note only in order to adjust respondent No.3, Anupama Sharma, who was under transfer GSSS Minjgran, District Kangra to GHS Kuraina U/C GMSSS Saho, District Chamba, vide office order dated 18.03.2023 (Annexure P-2).
3. Record has been produced which indicates that the impugned transfer has been ordered by the Administration Department, only on the basis of U.O/D.O. Note, dated 21.03.2023 issued at the instance of an MLA, whereas none of the stations i.e. present place of posting of petitioner or respondents No.3 falls in the constituency of the said MLA.
4. Reference in this regard can be made to various pronouncements of this Court, including Ram Krishan vs. District Education Officer, reported in ILR HP 1979 HIM 481 : 1979 Shim LC 345; A.K. Vasudeva vs. State of H.P. and others, reported in ILR (Himachal Series) (1981) 10 HIM 359; 1982 Shim LC 104; CWP No.1105 of 2006, titled as Sushila Sharma vs. State of H.P. and others; Sant Ram Pant vs. State of H.P. and others, reported in 2009 (3) Shim. L.C. 206; CWP No.2844 of 2010, titled as Pratap Singh Chauhan vs. State of H.P. & others, decided on 18.06.2011; CWP No.3530 of 2011, titled as Babita Thakur vs. State of H.P. and others; Amir Chand vs. State of Himachal Pradesh, reported in 2013 (2) HLR (DB) 648; Sanjay Kumar vs. State of H.P. and Ors., reported in Latest HLJ 2013 (HP) 1051; Raj Kumar vs. State of H.P. and Ors., reported in 2015 (1) Him. L.R. (DB) 567; CWP No.2621 of 2020, titled as Lekh Raj vs. State of H.P. & Ors., decided on 17.08.2020 : 2020 SCC Online HP 3429; CWP No.511 of 2020, titled as Sheela Suryavanshi vs. Stae of H.P., decided on 26.8.2020; CWP No.2677 of 2020, titled as Shugal Singh vs. State of H.P., decided on 24.9.2020; CWP No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal Pradesh, decided on 29.9.2020; CWP No.5294 of 2020, titled as Abdul Hamid vs. State of H.P. and others, decided on 5.1.2021 : 2021 SCC Online HP 48 : 2021 Lab IC (NOC 215) 65; CWP No.1387 of 2021, titled as Praveen Kumar vs. State of H.P and others, decided on 31.3.20221; CWP No.2862 of 2021, titled as Vipender Kalta vs. State of H.P. and others, decided on 20.7.2021; and CWP No.5721 of 2021, titled as Promila vs. State of H.P. and others, decided on 8.10.2021. Following principles propounded in above referred pronouncements may be relevant for the purpose of adjudication of present petition:-
(a) It is for the employer to see where the Government servant is to be posted. However, there should be no arbitrariness in the action. The transfer cannot be used as an instrument to accommodate/ adjust the persons without there being any administrative exigency. The underline principle for transfer is public interest or administrative exigency.
(b) Interference from outsiders in day-to-day administration of the State is not warranted and in case such interference is allowed, it would only mean that the Government servants should run after those who are taking part in public life and in politics for getting better terms of service and a better place of posting and should do everything to please them and not to please the department by their ability, honesty and integrity and such interference is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. Therefore, sooner this type of interference is discouraged and stopped, the better for the administration and the people of the State.
(c) An elected representat
Public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be final word.
Point of Law : Public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be final word.
Transfers should be made based on genuine public interest and administrative exigencies, and not on extraneous considerations or recommendations of elected representatives.
Transfers should be based on public interest and administrative exigencies, and not on extraneous considerations or recommendations from unauthorized persons.
Member of Legislative Assembly or Ministers concerned, have right to make recommendations but these recommendations cannot be taken to be final word.
Point of Law : Employment and Service matter - Order of Transfer quashed - Since recommendations to transfer petitioner had been mooted by an extra constitutional authority, who has no role in the fu....
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