Mohit Sain vs State Of H.P. And Others

Jyotsna Rewal Dua, J

Order dated 17.07.2020 transferring the petitioner from Forest Beat Arki, Block Bharmour under Forest Division Bharmour to Forest Beat Kiri, Block Sahoo under Forest Division Chamba, has been assailed in this petition.

On his appointment as Forest Guard on contract basis on 22.12.2016, petitioner was temporarily adjusted with Range Officer, Bharmour vide order dated 11.01.2017. He was temporarily deputed at Forest Beat Arki, Block/Range Bhramour under Forest Division Bharmour vide order dated 25.10.2018. On 17.07.2020, petitioner was transferred to Forest Beat Kiri, Block Sahoo under Forest Division Chamba.

Order dated 17.07.2020 has been assailed by the petitioner on the grounds that :- (i) order contravenes the Transfer Policy 2013 inasmuch as the petitioner has not been allowed to complete his normal tenure at his present place of posting and without taking option from him for transfer outside the tribal area, impugned transfer order has been issued. (ii) the transfer order has been effected with malafide intention and is result of colorable exercise of powers. The transfer has not been ordered in public interest.

Respondents have filed reply and have also produced the record relating to the transfer. A perusal of the record reveals that the competent Authority, the Hon'ble Chief Minister, on 06.06.2020 approved the transfer of four Forest Guards, including the petitioner. All these Forest Guards were transferred vice-versa in a sequence. The proposal thereafter was thoroughly examined by the Administrative Department, whereunder one Sunil Kumar, a Forest Guard, was to be transferred from Forest Range Tikri, under Forest Division Chamba, to Forest Beat Sundri, Range Tikri under Forest Division Chamba vice one Sudesh Kumar. Sudesh Kumar, was to be transferred to Forest Beat Mani, Block Masrund under Forest Division Chamba vice Narinder Kumar. Narinder Kumar was to be transferred to Forest Beat Arki, Block Bharmour under Forest Division Bharmour vice Mohit Sen (the petitioner). The petitioner was to be transferred to Forest Beat Kiri, Block Sahoo under Forest Division Chamba. S/Shri Sunil Kumar, Sudesh Kumar and Narinder Kumar had completed their normal tenure at their existing places of posting. Petitioner had about one year and nine months stay at Arki Beat of Bharmour Forest Division. However, from his initial posting in Bharmour Range w.e.f. 22.12.2016, he had completed three years and seven months stay at Bharmour. Charge of Forest Beat Arki, Block Bharmour under Forest Division Bharmour had been temporarily given to the petitioner by way of a stop gap arrangement. Vide order dated 17.07.2020 he was transferred and posted against a vacancy at Forest Beat Kiri, Block Sahoo, under Forest Division Chamba. The transfer has been ordered in condonation of short stay at Arki Beat after approval of the Competent Authority in accordance with the Transfer Policy. Petitioner has not been able to substantiate his allegations of malafide issuance of the transfer order.

This Court in CWP No. 1924 of 2020, titled as John Gupta Vs. State of H.P. and others, decided on 22.07.2020, while dealing with the issue of transfer on the recommendation of Member of Legislative Assembly, held as under :-

"13. Further, 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. This was so held by the Hon'ble Supreme Court in Mohd. Masood Ahmad vs. State of U.P. and others (2007) 8 SCC 150, wherein it was observed as under :-

"8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter affidavit filed on behalf of respondent Nos. 1 & 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that 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 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 M.P. or MLA would be vitiated. It all depends on the facts & circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.

Though 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 an 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."

The record shows that the transfer proposal involving four Forest Guards, though was approved by the Competent Authority on 06.06.2020, however, it was thoroughly examined thereafter by the Administrative Department at different levels and it is only after applying its independent mind to the service particulars of all the officials involved that the Administrative Department accepted the proposal on 02.07.2020 and then sent it for acceptance to the Competent Authority. The Competent Authority accorded its approval on 13.07.2020 to the transfer of four concerned employees, including the petitioner. Short stay of the petitioner was also condoned. It is thereafter that the impugned transfer order was issued on 17.07.2020.

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."

In view of the above legal and factual position, no case for interference with the transfer of the petitioner is made out. For the foregoing reasons, we find no illegality in the impugned transfer order passed by the respondents. Finding no merit in this writ petition, the same is dismissed accordingly. The pending applications, if any, also stand disposed of.