Navneesh Kumar vs HPSEB Ltd. & Ors

Satyen Vaidya, J

By way of instant petitioner, the petitioner has questioned transfer order dated 29th August, 2023, whereby petitioner has been transferred from Internal Audit Party, HPSEBL, Gagret to office of Board's Secretariat HPSEBL, Shimla vice respondent No.3.

The challenge to the impugned transfer order has been made on the grounds, firstly, that respondent No.3 has managed his transfer against the post held by the petitioner by political intervention, secondly, the impugned transfer order shall affect the education of the children of the petitioner and lastly, the petitioner is not in a position to join his transferred place of posting due to ailment of his parents.

It is submitted on behalf of the petitioner that on earlier occasion also respondent No.3 was transferred in place of petitioner vide office order dated 08.02.2023. Petitioner had approached this Court by way of CWP No. 644 of 2023 and the transfer order impugned therein was quashed by the Hon'ble Division Bench of this Court vide judgment dated 22.06.2023. Despite the above judgment, the identical order has been passed by the official respondents, whereby the petitioner has been transferred to Board's Secretariat at Shimla and respondent No.3 has been posted in his place.

Respondents No.1 and 2 have filed their reply and have submitted that the petitioner has now completed his normal tenure of posting at Gagret in District Una and therefore, he has no cause of action to assail the impugned transfer order. It is also submitted that the petitioner himself has also been recipient and beneficiary of D.O. Note and as such he cannot raise any grievance with respect to transfer of respondent No.3. A copy of U.O. Note dated 30.04.2015 issued by the office of Hon’ble Chief Minister in favour of the petitioner has been placed on record.

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

Though the petitioner has made the averments that he was posted with Internal Audit Party, HPSEBL, Gagret in District Una on his promotion on 2.07.2022, however, it transpires from the record that the petitioner was posted with the audit party Gagret on 6. 07.2020. Thus, the petitioner has completed more than three years at Gagret, District Una. He cannot have any grievance regarding his transfer on the ground of his alleged short stay.

The allegation that the transfer of respondent No.3 in place of petitioner has been made on political intervention also remains unsubstantiated. No tangible material has been placed on record to support the allegation. Rather, the perusal of record reveals that the impugned transfer order has been issued after sanction of competent authority.

There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer of its employees save and except on the ground of malafide or arbitrariness.

A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other.

In S.K. Nausad Rahaman and others vs. Union of India and others, Civil Appeal No. 1243 of 2022, decided on 10th March, 2022, the Hon’ble Supreme Court has held as under: -

“24. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.”

In Mohd. Masood Ahmad vs. State of U.P. & Others, (2008)1 SCC 180, the Hon’ble Supreme Court has held as under: -

“7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.”

Petitioner has not refuted the contention raised by respondent No.2 regarding the petitioner also being beneficiary of D.O. Note in the past. On this score also the petitioner is not entitled to any relief. A Co-ordinate Bench of this Court in CWP No. 3195 of 2021 titled as Bhup Singh vs. State of H.P and another, decided on 30. 06.2021 has held as under:-

“2. The main grievance of the petitioner is that his transfer has been effected on the basis of D.O. note. The record, which has been produced pursuant to our directions, reveals that the petitioner himself is the beneficiary of the D.O. note, therefore, in such circumstances, he is not entitled to any relief in terms of the repeated judgments rendered by this Court.

Reference in this regard can conveniently be made to the judgment rendered by this Court in CWP No. 1387 of 2021, titled as Parveen Kumar vs. State of H. P. and Ors., decided on 31.03.2021, wherein it was observed as under:-

“13. Indeed, transfer is an incidence of service and government employees are supposed to be transferred and posted anywhere in the State . The transfers of the petitioner and that of respondent No. 4 are effected after the approval of the competent authority. The petitioner, earlier managed his posting at GSSS Nabahi, Mandi, and now he has been transferred from Nabahi, after completion of his normal tenure, so he has no right to say that transfer of respondent No. 4, effected on the basis of D.O. Note, is illegal and bad in the eyes of law. In fact, transfer of the petitioner has no tinge of malafides, neither without public interest nor vitiated, being against the settled Transfer Policy, as transfer is an incidence of service. Moreover in Sanjeev Sood vs. State of Himachal Pradesh and others, CWP No. 4208 of 2020, decided on 22.12.2020, this Court has held as under:

“9. This Court in CWP No. 4063 of 2019, titled Smt. Anita Rana and Anr vs. State of Himachal Pradesh and others, decided on 31.12.2019, has specifically held that a recipient /beneficiary of DO note cannot approach this Court ventilating the grievance that he /she has been transferred on the basis of DO Note. It would be apposite to refer to the relevant observations made by a Coordinate Bench in order dated 31.12.2019, which reads as under:-

“We have heard this matter for some time and also perused the record produced by the office of respondent No. 2. It is seen from the record that on the D.O. Note, the transfer of petitioner No. 1 has been proposed to be cancelled. Meaning thereby that she is also recipient of D.O. Note, hence not justified in ventilating the grievances that she has been transferred on the basis of D.O.\ note. Therefore, the writ petition qua her deserves to be dismissed and is accordingly dismissed leaving it open to her to make a representation either for cancellation of her transfer or adjustment at some suitable place, if so advised.”

Since it is apparent that the petitioner, on earlier occasions, got himself posted at stations of choice on the basis of UO Notes, petition praying therein for quashment of impugned order is not maintainable at all. However, having taken note of the fact that both, petitioner and respondent No.3, have been repeatedly exerting political pressure to get themselves posted at stations of their choice, we dispose of this petition by directing respondents to transfer both, petitioner and respondent No.3, to some other places in the State, especially where both of them have not served till date, within two weeks.”

Further, the petitioner has failed to place on record anything substantial against respondents No.1 and 2 to prove any malafide in the administrative action.

The judgment passed by the Hon'ble Division Bench of this Court in CWP No. 644 of 2023 also reveals that the earlier transfer order of the petitioner was quashed on the ground that the petitioner had not completed his normal tenure and the Hon'ble Division Bench had found the transfer order impugned therein to have been effected on political intervention. Further, the fact that the petitioner himself had been recipient and beneficiary of D.O. note in the past evidently was not brought to the notice of Hon'ble Division Bench. Even otherwise, the petitioner has now completed his normal tenure of posting at Gagret in District Una.

In result, no ground for interference is made out and the instant petition is dismissed accordingly.

Pending applications, if any, also stand disposed of.