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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RANJAN SHARMA, J.
Prakash Chand – Appellant
Versus
State of Himachal Pradesh and Others – Respondents
CWP No. 9553 of 2023
Decided on : 08-01-2024
Transfer - Agricultural Development Officer - [Section 17, Section 23, Section 344, Section 22057, Section 344] - The court stayed the transfer of the petitioner, an Agricultural Development Officer, from Seed Store/Seed Grading Centre Bhangrotu, District Mandi to Development Block Shillai, District Sirmaur, based on the prima facie view that the transfer was issued without genuine public interest or administrative exigencies. The court found that the transfer was based on extraneous considerations and the written recommendation of a Former Minister, which was acted upon without genuine, cogent, and convincing material revealing public interest. The court referred to various judgments deprecating the practice of transferring employees based on recommendations of elected representatives and held that such transfers should be made only on genuine and cogent reasons, and not by usurping the authority of the administrative department. The court quashed the transfer order, emphasizing that the transfer was based on a colorable exercise of power and did not stand the test of judicial scrutiny.
Fact of the Case:
The petitioner, an Agricultural Development Officer, was transferred from Seed Store/Seed Grading Centre Bhangrotu, District Mandi to Development Block Shillai, District Sirmaur. The transfer was challenged on the grounds that the petitioner had not completed the required tenure at the present station, and the transfer was based on extraneous considerations and lacked genuine public interest or administrative exigencies.
Finding of the Court:
The court found that the transfer was issued without genuine public interest or administrative exigencies and was based on extraneous considerations, including a written recommendation by a Former Minister. The court held that the transfer order was a colorable exercise of power and did not stand the test of judicial scrutiny.
Issues: The primary issues were the validity of the transfer order and whether it was based on genuine public interest or administrative exigencies.
Ratio Decidendi: The court held that transfers should be made only on genuine and cogent reasons, and not by usurping the authority of the administrative department. The court referred to various judgments deprecating the practice of transferring employees based on recommendations of elected representatives and emphasized that such transfers should be based on public interest and administrative exigencies.
Final Decision: The court quashed the transfer order, emphasizing that the transfer was based on a colorable exercise of power and did not stand the test of judicial scrutiny.
JUDGMENT :
Ranjan Sharma, J.
In terms of the previous order dated 04.01.2024, the records leading to the issuance of the transfer orders were sent and photocopy was retained by this Court for records.
2. Admittedly, the transfer of the petitioner, as an Agricultural Development Officer was issued on 21.11.2023, Annexure P-1, transferring him from Seed Store/Seed Grading Centre Bhangrotu, District Mandi to Development Block Shillai, District Sirmaur.
3. This Notification of transfer dated 21.11.2023, Annexure P-1, was assailed on three primary grounds, as mentioned in the orders dated 30.11.2023, which read as under:-
Notice. Mr. Rajan Kahol, learned Deputy Advocate General, appears and waives service of notice on behalf of respondents. Let reply be filed within three weeks.
2. The petitioner is an Agriculture Development Officer and is posted at Seed Store/Seed Grading Centre Bhangrotu, District Mandi, Himachal Pradesh. Now, as per Notification dated 21.11.2023 (Annexure P1), the petitioner has been transferred to Development Block Shillai, District Sirmour, H.P.
3. The petitioner has assailed the Notification of transfer dated 21.11.2023 (Annexure R-1) on the ground; (i) that the petitioner has completed only one year and two months of stay at the present station; and (ii) transfer has been ordered on the basis of DO No.86408 dated 27th October, 2023, in view of the averments in Para 7(D) of the writ petition and (iii) transfer order does not reveals any public interest or administrative exigencies.
4. In the above facts and circumstances, this Court is of the prima facie view that interim protection need to be granted to the petitioner.
5. Accordingly, the operation of the Notification dated 21.11.2023 (Annexure P-1) transferring the petitioner, as Agriculture Development Officer from Seed Store/Seed Grading Centre Bhangrotu, District Mandi, (H.P.) to Development Block, Shillai District Sirmour shall remain stayed, qua the petitioner till the next date of hearing.
Records be produced on 21st December, 2023.
4. Thereafter, the matter was again listed on 21.12.2023 whereby, this Court had considered the material aspect that once the petitioner had served the hard area from 2008 to 2018 (Jeori Development Block Rampur) then, the petitioner could not have been retransferred to Development Block Shillai, District Sirmour, Himachal Pradesh, which is a difficult/remote area under the Norms and Principle governing transfer.
5. On 04.01.2024, this Court perused the records which led to the issuance of the Notification of transfer dated 21.11.2023, Annexure P-1. The records reveal that the Notification of transfer was issued on the basis of approval given by the Competent Authority/Chief Minister on 27.10.2023.
6. Even a perusal of the records reveal that after receipt of approval dated 27.10.2023, the Administrative-Transferring Authorities in the departments concerned have ipso facto given effect to the said approval without resorting to an independent and impartial application of mind as to whether in these circumstances the transfer of the petitioner was necessary or not.
7. In view of the submissions made by learned counsel for the petitioner that the approval so given on 27.10.2023 and the Notification of transfer dated 21.11.2023, Annexure P-1, were based on extraneous considerations and the transfer was issued without their being any genuine, cogent and convincing material revealing public interest.
8. In order to ascertain these facts, the records so produced were perused by this court which reveals that a written recommendation was given by a Former Minister, who presently happens to be an office bearer also, recommending the transfer of several employees including that of the petitioner.
9. That being so, once the entire exercise, leading to the approval dated 27.10.2023 and the resultant Notification of transfer dated 21.11.2023 have originated from an extraneous consideration i.e. a written re
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.
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....
The main legal point established in the judgment is that the power of transfer and posting should be exercised honestly, bona fide, and reasonably, based on administrative exigency and public interes....
Public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be final word.
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