Devki Devi And Others vs State Of Himachal Pradesh & Others

Jyotsna Rewal Dua, J

Petitioner Tek Chand (in CWP No.2200 of 2020), seeks quashing of transfer order dated 01.07.2020, whereas petitioner Devki Devi (in CWP No.2354 of 2020), seeks implementation of the said order. Both these petitions, being inter-connected, are taken up together for disposal.

2(i). Petitioner Tek Chand (in CWP No.2200/2020) was appointed as Peon in the respondent-Education Department. Vide order dated 01.07.2020, he was transferred from Government Senior Secondary School (GSSS), Ghiri, District Mandi, to Government Senior Secondary School (GSSS), Smaila, District Mandi, vice Smt. Devki Devi, petitioner (in CWP No.2354/2020).

2(ii). Smt. Devki Devi, petitioner (in CWP No.2354/2020), was appointed as Part Time Water Carrier in the respondent-Education Department on 26.04.2005. Her services were regularized and she was promoted as Peon on 03.10.2019 and was posted as such at GSS, Smaila, District Mandi. After about nine months of her joining at Smaila. She was transferred to GSSS Ghiri, vice Sh. Tek Chand, petitioner (in CWP No.2200/2020), vide order dated 01.07.2020. She statedly joined at GSSS Ghiri on 03.07.2020. However, pursuant to the interim order dated 07.07.2020, passed in CWP No.2200 of 2020, staying the impugned inter se transfer order, she was relieved from there.

3(i). We have heard learned counsel for the parties and gone through the material available on record. Learned counsel for the petitioner (in CWP No.2200/2020), contends that the transfer order dated 01.07.2020 is liable to be quashed on the following grounds:-

(a). The order was issued by the respondent-Education Department only on the basis of a D.O. Note issued by the local M.L.A. to favour Smt. Devki Devi (petitioner in CWP No.2354/2020);

(b). Within nine months of her posting at GSSS Samaila, Smt. Devki Devi (petitioner in CWP No.2354/2020) got herself transferred to GSSS Ghiri by dislodging the petitioner Tek Chand (in CWP No.2200/2020). Smt. Devki Devi, on her promotion, was posted at GSSS Samaila, only on 03.10.2019 and that she has not completed her normal tenure there as yet; &

(c). On the basis of a Medical Certificate, issued by the Medical Board, showing Shri Tek Chand pettioner (in CWP No.2200/2020) to be suffering from 50% permanent 'locomotor impaired' disability, it has been urged that impugned order transferring the petitioner 150 kilometers away from his present place of posting, has been passed just to accommodate Smt. Devki Devi (petitioner in CWP No.2354/2020) in an arbitrary and illegal exercise of power by the respondents-Department.

3(ii). Per contra, learned counsel for the petitioner Devki Devi (in CWP No.2354/2020), submits that Devki Devi is widow and facing adverse family circumstances inasmuch as her aged and ailing mother-in-law is dependent upon her, therefore, she may be allowed to join at GSSS Ghiri, pursuant to the transfer order dated 01.07.2020.

4(i). In CWP No.2225 of 2020, titled Puran Chand versus State of Himachal Pradesh and others, decided on 14.07.2020, this Court had culled out following Principles of Law in respect of interference in transfer matters:

"4. It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to "proper place". It is for the administration to take appropriate decision.

Even the administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. Even if, the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. 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 considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. 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, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.

Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the Court is competent to go into the matter to find out the real foundation of transfer. The Court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.

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 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.

The personal inconvenience and hardship of an employee are considerations which lie solely within the purview of the Employer and it is always open to the aggrieved party to make a representation to his Employer....."

4(ii). In the instant case, petitioner Smt. Devki Devi (in CWP No.2354/2020), working as Peon, has yet to complete her normal tenure of three years at GSSS Samaila, District Mandi, where she was transferred on promotion on 03.10.2019. Merely on the basis of a D.O. Note of Public Representative, she has been transferred to GSSS Ghiri, District Mandi, resulting in dislodging Tek Chand (petitioner in CWP No.2200/2020), who as per certificate issued by the Medical Board, is suffering from 50% permanent 'locomotor impaired' disability. Transfer order, therefore, cannot be sustained.

Taking into consideration all the above aspects, the impugned order dated 01.07.2020 in respect of inter se transfers of petitioners in these writ petition, is quashed and set aside. Accordingly, CWP No.2200 of 2020 is allowed and CWP No.2354 of 2020 is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are left to bear their own costs.