Abdul Hamid vs State Of Himachal Pradesh & Others

Vivek Singh Thakur, J

Petitioner is serving as a Deputy Ranger in Forest Department of Himachal Pradesh. He has preferred the present petition for quashing and setting

aside Office Order dated 12.06.2020 (Annexure P-1) and Office Order dated 02.07.2020, whereby petitioner has been transferred from Chhabaru

Block, Lower Chamba Range of Chamba Forest Division and posted in the office of Divisional Forest Officer, Chamba on special duty, without TTA

and Joining Time with immediate effect and Deputy Ranger Vinay Kumar posted in Check Post Karian has been directed to take over charge from

petitioner temporarily till further orders vide order dated 02.07.2020.

It is second round of litigation. Earlier petitioner had preferred CWP No.2183 of 2020 against the aforesaid impugned orders. The said petition was

disposed of on 14.07.2020 by Division Bench of this Court with liberty to the petitioner to make representation to the Additional Chief Secretary to the

Government of Himachal Pradesh within one week in accordance with transfer policy with further direction to the respondents-State to decide such

representation in the light of transfer policy occupying the field and to pass appropriate orders within two weeks.

In compliance of the aforesaid orders passed by the Division Bench of this Court, petitioner had submitted representation dated 20.07.2020

mentioning therein two stations of his choice for his posting i.e. Masroond and Chamba Blocks of Chamba Forest Division. The said representation

has been rejected by Principal Chief Conservator of Forests, on the ground that as per “Comprehensive Guiding Principles-2013†issued for

regulating the transfer of State Government employees, circulated vide letter dated 10.07.2013, Deputy Rangers will not be posted in their Home

Range and adjoining Ranges, and as Lower Chamba Range is Home Range and Masroond Block falls in adjoining to Home Range of the petitioner

and, thus, his posting in these Ranges is not permissible as per transfer policy.

Feeling aggrieved by adjudication of representation, petitioner has preferred present writ petition mainly on the ground that his transfer is arbitrary,

illegal and bad in the eyes of law and has not been ordered for administrative exigency, convenient and efficient functioning of the machinery, but for

extraneous purposes with malafide intention to harass the petitioner for performing his duties with sincerity and honesty.

During hearing petitioner has also placed on record details of ten Deputy Rangers, who have either been posted in their Home Range and in a

Range adjoining to their Home Range in District Chamba. In response thereto, it has been communicated through learned Additional Advocate

General, under instructions received from the Department, that some of them have been posted in offices but not in field and those who have been

posted in the field, have been posted so after due relaxation granted by the competent authority.

It is contended on behalf of the petitioner that he had never requested for his transfer nor his transfer has been ordered on the ground of his posting

in Home Range or adjoining to Home Range, but for extraneous reasons as his transfer has been ordered without Joining Time and TTA, which is

always admissible to an employee transferred without his request and transfer without TTA and Joining Time is ordered only when there is a request

on the part of the employee seeking transfer.

It is also canvassed on behalf of the petitioner that at the time of passing the impugned order in June 2020, petitioner had completed only 1 year 9

months on the station and as of now also he has not completed his normal tenure of 3 to 5 years, but a tenure of about 2 years only.

Per contra, learned Additional Advocate General, submits that employer is best person to decide where his employees are to be utilized and where

and when an employee is to be posted and minimum period of normal stay contained in the policy is a guiding principle, but it does not prescribe

statutory minimum/normal tenure of posting of an employee at a particular place or post. He further submits that transfer of the petitioner has been

ordered for administrative convenience and exigency, but not for malafide intention and also for the reason that his posting was not permissible in

Home Range or Range adjoining to Home Range.

To adjudicate rival contentions of the parties, it was considered appropriate to call the record from the Department/ competent authority which

causes to initiate and order transfer of the petitioner to the competent authority.

Perusal of record of Department indicates that it was initiated after receiving an unofficial letter dated 17.12.2019 in the office of Principal Chief

Conservator of Forests from Joint Secretary to the Chief Minister. Whereupon, respondents were directed to produce the record which causes office

of Chief Minister to recommend transfer of the petitioner. The said record has been made available through Principal Chief Conservator of Forests

which reflects that transfer of the petitioner was proposed by a local representative by submitting an application to the Chief Minister with following

recommendations:-

“11.Abdul Hamid Deputy Ranger presently posted at Forest Block Chabaru Forest Range Lower Chamba Forest Division Chamba may kindly be

transferred to against vacant post of Deputy Ranger Prosecution in office of DFO Chamba, in condonation of short stay in relaxation of ban on

transfer policy, as per special case.â€​

On the basis of the said recommendation, following was communicated from the office of Chief Minister to Principal Chief Conservator of Forests

vide UO No.Secy/CM-17003/2017-VIP-B-191278, dated 17.12.2019:-

“Sh.Abdul Hamid, Deputy Ranger, may be transferred, without TTA/JT, in condonation of short stay from Forest Block Chabaru, Forest

Range Lower Chamba, Forest Division Chamba to the O/o DFO, Chamba as Deputy Ranger Prosecution, against vacant post in relaxation

of ban on transfers, as special case.

Pr. Chief Conservator of Fts. HP Shimla is requested to take necessary action accordingly and report compliance.â€​

After receiving aforesaid communication, Principal Chief Conservator of Forests has initiated transfer with following opening para:-

“Joint Secretary to the Hon’ble Chief Minister vide UO No.Secy/CM-17003/2017-VIP-B-191278 dated 17.12.2019, has conveyed approval of

Hon’ble CM that Shri Abdul Hamid, Dy. Ranger, may be transferred without TTA/JT, in condonation of short stay from Forest Block Chabaru,

Forest Range Lower Chamba, Forest Division Chamba to the office of DFO Chamba as Deputy Ranger Prosecution, against vacant post in relaxation

of ban on transfers, as a special case.â€​

Ultimately vide impugned order dated 12.06.2020 petitioner was transferred as proposed by the local representative.

Learned counsel for the petitioner in support of his petition has relied upon judgments passed by Division Bench of this Court in CWP No.511 of

2020, titled as Sheela Suryavanshi vs. State of H.P. & Ors., decided on 26.08.2020; CWP No.2677 of 2020, titled as Shugal Singh vs. State of H.P.

and ors., decided on 24.09.2020; and CWP No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal Pradesh & others, decided on 29.09.2020,

wherein various judgments passed by this Court and Supreme Court have been discussed and relied upon.

In the case of B. Varadha Rao vs. State of Karnataka & Others, reported in AIR 1986 SC 1955, the Supreme Court has observed as under:-

“The Government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised

honestly, bonafide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous consideration or for

achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient

reasons to justify such transfers, cannot but be held as in fide. A transfer is mala fide when it is made not for professed purpose, such as in normal

course or in public or administrative interest or in the exigencies of service but for other purpose than is to accommodate another person for

undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.â€​

Similarly in the case of Mrs. Shilpi Bose and others vs. State of Bihar & Others, reported in AIR 1991 SC 53,2 it is observed by the Supreme

Court as under:-

“In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the

transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post

has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the

competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts

ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to

interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administrations

which would not be conductive to public interest … … … ...â€​

It has also been observed by Supreme Court in the case of Rajendra Roy vs. Union of India and another, reported in AIR 1993 SC 1236, that it

may not be always possible to establish malice in fact in a straight cut manner and in an appropriate case, it is possible to draw reasonable inference of

malafide action from the pleadings and antecedent facts and circumstances.

In Sudhir Kumar’s case supra Division Bench has referred various judgments passed by this High Court in Ram Krishan vs. District

Education Officer, reported in ILR HP 1979 HIM 481; A.K. Vasudeva vs. State of H.P. and others, reported in ILR (Himachal Series) (1981) 10

HIM 359; CWP No.1105 of 2006, titled as Sushila Sharma vs. State of H.P. and others;S ant 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; and CWP No.2621 of 2020, titled as Lekh Raj vs. State of H.P. & Ors., decided on 17.08.2020 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 representative can only propose the transfer of an employee, that too for genuine and cogent reasons and not by usurping the authority

of the administrative department, who alone is competent to issue the orders of transfer after due application of mind.

(d) Public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be the final word.

(e) The transfer of the petitioner on the recommendation of the MLA in the given facts and circumstances by itself would not vitiate the transfer

order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint

against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every

transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case.

(f) Whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MLA, then before ordering the transfer, the

views of the administrative department must be ascertained and only after ascertaining the views of the administrative department, the transfer may

be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in

the matters of transfer. What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application

of mind that the transfer is essential on account of administrative exigency and / or public interest or that the transfer of employee is necessary for the

effective utilization of his/her services.

(g) A recommendation by a peoples representative requesting for a particular course of action in the realm of administrative functioning may not per

se constitute an unauthorized or unwarranted interference or cause vitiation provided the consequential steps are taken by the authority of

administration alone, the nature of action then to be drawn by the administrative department would be contingent on the attending facts. It is only when

the contextual facts demonstrate servile subjugation of a administrative authority to the dictates of an outside entity in power by meekly abdicating his

dominion, the resultant order or decision would be impeachable as antithetical to the foundational precepts of governmental functioning. The facts and

circumstances of each case will therefore have to be evaluated.

(h) Any person has a right to make a complaint against an employee regarding his conduct to his superiors including the Hon’ble Chief Minister

and even request for his transfer. It is, however, only for the competent authority i.e. administrative department to consider the request and take

appropriate action in accordance with law. But when the administrative authorities do not perform their duties and resultantly fair play is denied by the

administrative authorities, people turn up to the courts complaining of such blatant case of administrative excess compelling the courts to intervene in

such matter.

(i) Courts are clearly of the view that normally Courts would not like to interfere in transfer orders passed in administrative interests. The

administration has to be stern and strict in matters of transfers. At the same time, it also has to be fair and just and should treat all the employees

equally. It is only because the administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses

its decisions day in and day out, that the courts are forced to intervene.

The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent the present case as record does not

reflect any public interest or any administrative exigency necessitating the transfer of the petitioner on the recommendation of the local representative.

For what reason it is a special case, is not borne out from recommendation of local representative or record of Department. Further proposal of local

representative was never sent for consideration of concerned competent authority or administrative department. Approval of transfer of the petitioner,

was communicated to the concerned authority without inviting any comments of the Department but only on the basis of recommendation of local

representative which does not disclose any reason or public interest for proposal of transfer of the petitioner as a special case.

It is not a case where local representative, on the basis of input received by him from public or for complaint on behalf of the public, has

recommended transfer of the petitioner from his present place of posting. His recommendation was simply for transfer of petitioner in public interest,

but that public interest has not been disclosed in his recommendation nor respondents, before this Court, were able to disclose such public interest or

any complaint with respect to working of the petitioner at present place of posting. Rather language of recommendation of local representative sounds

that proposal has been submitted on the request of petitioner which in fact, for agitation of the petitioner has been found incorrect.

Though, it has been pointed out by learned Additional Advocate General that petitioner cannot be posted in his Home Range or any Range

adjoining to his Home Range and, therefore, his transfer has been rightly ordered and rejection of his prayer in representation, to post him in Lower

Chamba Range or Masroond Block, is also just, valid, fair and in consonance with transfer policy. Had transfer of the petitioner been made on the

aforesaid ground which has now been advocated by and on behalf of the respondents-Department, this Court would not have any reason for

interference in the transfer of the petitioner. However, it is not reality. Had it been so, other incumbents posted in their Home Ranges or Ranges

adjoining to their Home Ranges would have also not been permitted to continue as such, rather would have also been transferred alongwith petitioner

to the Ranges other than the Home Range and Range adjacent to their Home Range. Further it is response of the department that certain Deputy

Rangers have been posted in Home Ranges and/or in Ranges adjoining to Home Ranges after due relaxation granted by the competent authority.

Though reasons for such relaxation have not been disclosed, but such postings definitely establish that posting in Home Ranges and Ranges adjoining

to Home Ranges is also permissible. In fact petitioner also remained posted as such till his transfer impugned herein.

On perusal of record, there is not even iota of evidence that transfer of the petitioner has been ordered on account of violation of transfer policy.

Record reveals that local representative proposed, office of Chief Minister approved and conveyed it to the Department/competent authority, after

noting down the approval conveyed by the office of Chief Minister, has accepted and implemented the proposal as it is, without assigning any reason

or comments of the Department. Therefore, present transfer has been ordered in violation of the mandate of the Court, merely on the basis of

D.O./U.O Note of a local representative and, therefore, it is not sustainable in the eyes of law.

In case, it has been decided by the competent authority not to post a Deputy Ranger in his home Range or a Range adjoining to home Range then,

equal treatment should be given to all similarly situated employees. Respondents-State cannot pick and choose the person to apply a norm of transfer

policy differently to different employee without justifiable classifications or valid reasons.

Accordingly, in given facts and circumstances of the case, for discussion hereinabove, order dated 12.06.2020 (Annexure P-1) whereby petitioner

has been ordered to be transferred from Chhabaru Block, Lower Chamba Range of Chamba Forest Division to the office of Divisional Forest Officer,

Chamba and order dated 02.07.2020 whereby charge of petitioner has been ordered to be taken by Vinay Kumar, are quashed and set aside.

Quashing of transfer order in present petition does not disentitle the competent authority to pass an appropriate order for posting of the petitioner

somewhere else but only for administrative convenience or exigency, definitely in public interest without being influenced by any extraneous reasons

or external pressure/interference.

Needless to say, respondents/Department/competent authority shall be at liberty to transfer the petitioner, if necessary, in public interest or for

administrative exigency and convenience, but in accordance with settled law of the land.

Petition is allowed in aforesaid terms. Pending application(s), if any, also stand disposed of.