Bindra Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Submitting that on 03.09.2020, petitioner had preferred a representation to the Director of Higher Education, Himachal Pradesh, Shimla, seeking her transfer to one out of three places of her choice, where the posts are going to fall vacant, instant writ petition has been preferred praying for "directing respondent No. 2 to consider the representation of the petitioner contained in Annexure P-1 sympathetically and post the petitioner to one of the choice stations in the interest of justice."

Petitioner, as per her own pleadings, has not even completed tenure of three years at the present place of posting. It is not her case that she is posted in some tribal, hard or difficult area. Learned counsel for the petitioner could not point out any legal right of the petitioner to seek her transfer, muchless to a place of her choice.

The law regarding interference by the Court in transfer/posting of the employee was expounded by this Court in CWP No. 2225 of 2020, titled as Puran Chand Vs. State of H.P. and others, relevant paragraph whereof is reproduced hereinafter :-

"8. The law regarding interference by Court in transfer/posting of an employee, as observed above, is well settled and came up before the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3; B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131; Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532; State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270; Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574; Public Services Tribunal Bar ::: Downloaded on - 23/09/2020 15:18:46 :::CIS High Court of H.P. 6 Association vs. State of U.P. and another, (2003) 4 SCC 104; Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245; State of U.P. vs. Siya Ram, (2004) 7 SCC 405; State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402; Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299; Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592; Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304; Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178; and State of Haryana and others vs. Kashmir Singh and another,(2010) 13 SCC 306 and the conclusion may be summarised as under:-

Transfer is a condition of service.

It does not adversely affect the status or emoluments or seniority of the employee.

The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.

It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.

Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.

There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.

In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.

The person against whom allegations of malafide is made should be impleaded as a party by name.

Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.

The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.

If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance."

It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. The Court cannot direct the employer to order transfer of its employee merely on the ground of alleged personal inconvenience. This is a case which is to be taken by the employer as is held in Puran Chand's case (supra).

In the facts and circumstances of the case, we find no merit in the writ petition and the same is accordingly dismissed. The pending applications, if any also stand dismissed.