Janak Raj vs State Of H.P. & Others

@JUDGEMENTTAG- JUDGEMENT

Satyen Vaidya, J

Aggrieved against the impugned office order dated 25.9.2023, whereby the petitioner has been ordered to be transferred from Civil Hospital, Gangath, District Kangra to Civil Hospital Bathri, District Chamba vice respondent No.3, the instant petition has been filed.

Petitioner has raised the grievance that he was posted at Civil Hospital Gangath on 2.9.2021 and his transfer within approximate period of two years without allowing him to complete the normal tenure is in violation of the Comprehensive Guiding Principles-2013 (for short, ‘transfer policy). It has also been contended that respondent No.3 has always been able to manage his transfer to places of convenience. As per petitioner, he served the tribal area from 2017 to 2020, as he remained posted in Civil Hospital Bharmour. On 9.7.2020, petitioner was transferred from Civil Hospital Bharmour to Primary Health Centre, Kotla in District Kangra vice respondent No.3, who was ordered to be transferred to Civil Hospital, Bharmour. Instead of joining at Bharmour, private respondent got himself adjusted at Civil Hospital, Bathri in District Chamba. Not only this, he immediately got himself posted at Civil Hospital, Rehan in District Kangra on deputation. On 23.9.2023, respondent No.3 was relieved from Civil Hospital, Rehan to enable him to join at Civil Hospital, Bathri but within two days, he managed the impugned transfer order and got himself adjusted at Civil Hospital, Gangath in place of the petitioner. It has further been contended that private respondent has never served the tribal or hard area, which is one of the essential requirement of the transfer policy. It is alleged against respondent No.3 that he has been able to manage the impugned transfer order by intervention of political functionaries.

Respondent No.3 has filed his reply stating inter-alia that the petitioner is guilty of suppression of material facts. The instant petition was filed by the petitioner on 28.9.2023 and before that date, the petitioner stood relieved from Civil Hospital, Gangath and respondent No.3 had already joined. Petitioner intentionally and deliberately suppressed these facts in order to secure an interim order from this Court. It has also been alleged that after his transfer to Civil Hospital, Kotla on 9.7.2020, petitioner managed his transfer to Civil Hospital, Gangath within a period of less than one year. Petitioner could do so on the basis of a D.O. Note procured by him from political functionary. The distance between Civil Hospital, Kotla and Civil Hospital, Gangath is stated to be about 30 k.m. and on such basis, it is averred that the petitioner cannot take plea of short stay and the impugned transfer order being result of political manipulation.

Respondents No. 1 and 2 in their reply have also mentioned the factum of petitioner having been transferred from Civil Hospital, Kotla to Civil Hospital, Gangath on 2. 2.2021 on the basis of a D.O. Note. It has also been submitted that the petitioner has also remained posted at the places of convenience to him for substantial part of his service career. Respondents No. 1 and 2 have also asserted their right to transfer the petitioner being his employer.

I have heard the learned counsel for the parties and have also gone through the record carefully.

It is more than settled that the employer being the best judge of its requirement has right to transfer and post its employees at places where they are required. Government servant also does not hold any indefeasible right to remain posted at a place of his choice and for such reason cannot be heard in exercise of jurisdiction under Article 226 of the Constitution by writ court save and except in cases where the administrative action is found to be unfair and arbitrary.

Petitioner has come up with the plea that the impugned transfer order is in violation of the Comprehensive Guiding Principles-2013, as petitioner has not been allowed to complete his normal tenure. Petitioner did not disclose that he was transferred to Civil Hospital, Gangath at his own instance after having been posted at Civil Hospital, Kotla. It being so, the grievance of the petitioner that his transfer is bad for the reason of not allowing him to complete the normal tenure is not genuine, more particularly, when the distance between Civil Hospital, Kotla and Civil Hospital, Gangath is stated to be approximately 30 k.m.

The entire thrust of petitioner is in highlighting the transfers and postings allegedly manipulated by respondent No.3. Even if it is so, the petitioner can succeed only in case he establishes violation of his own right or demonstrate the administrative action to be arbitrary or having been actuated by malafide. Since the transfer is merely an incidence of service, petitioner is liable to serve his employer wherever required.

It has been established on record that petitioner has also been indulging in getting himself transferred at the place of his choice by obtaining/procuring D.O. Note. His last transfer from Civil Hospital, Kotla to Civil Hospital Gangath was also result of such exercise, whereas petitioner had been posted at Civil Hospital, Kotla only for about one year. In this background, petitioner cannot raise any grievance with respect to the conduct of respondents being manipulative.

Further, the petitioner has not made out any case of malafide, being the reason for impugned transfer. Neither the requisite pleadings nor required proof has been placed on record and in absence whereof, the petitioner cannot be allowed to agitate the ground of malafide.

Petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution, which is discretionary in nature and in order to seek discretion, petitioner has to show his conduct to be above board, which is clearly missing in the instant case.

In light of above discussion, there is no merit in the instant petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.