Pardeep Kumar Rathore vs State Of H.P And Others

Jyotsna Rewal Dua, J

Petitioner is serving as an Agriculture Extension Officer in the Department of Agriculture. In 2015, he was transferred to AEO Cirle, Jogindernagar Development Block, Padhar, District Mandi, H.P. Vide order dated 23.07.2020, petitioner has been transferred to AEO Circle Tikkar, Development Block, Rohru, District Shimla, H.P. The transfer has been effected vice respondent No. 3 Ashok Kumar, who has been brought to petitioner's place.

The transfer order dated 23.07.2020 has been challenged on the ground that it was issued on 23.07.2020. By that time, the ban on transfers imposed by the respondents vide instructions issued on 23.07.2020 had already come into force. These instructions, inter alia, while imposing ban on transfers, provided that during ban period, except in the rarest of rare cases i.e. only on extreme medical grounds or on administrative exigencies that too with the prior approval of the Hon'ble Chief Minister through the concerned Minister-in-Charge, the transfer could be ordered in accordance with Transfer Policy Guidelines 2013.

Learned counsel for the petitioner argued that transfer order was issued during ban period and thus, is not sustainable. He also submitted that there are many other incumbents in District Mandi having longer stays than the petitioner, therefore, petitioner should not have been singled out for transfer outside District Mandi.

On behalf of the State, it has been submitted that no Government employee can claim his transfer or posting as a matter of right. It is the discretion of the State Government/ the employer, to post/transfer any employee anywhere in the State as per Transfer Policy Guidelines, considering the administrative exigencies/convenience.

The State-respondent has also made available the record relating to the transfer. A perusal of the same reveals that the proposal of the petitioner's transfer emanated from a note of the Member of Legislative Assembly on 12.07.2020, which was accepted by the Competent Authority-the Hon'ble Chief Minister on 17.07.2020. The proposal was examined by the Administrative Department. The service particulars of the petitioner as well as respondent No. 3 were verified. On ascertaining that both of them had completed their normal tenure at their respective places of posting, the Administrative Department accepted the proposal and eventually issued the transfer order, impugned in the petition.

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 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 contention of learned counsel for the petitioner that the impugned transfer order was issued merely on the basis of U.O. Note and during the ban period is not correct. The process to transfer the petitioner had been initiated and was approved by the Competent Authority prior to the issuance of instructions dated 23.07.2020. It was only the final order of transfer that was issued on 23.07.2020. It is not in dispute that the petitioner has completed about four years of service at his present place of posting and is thus liable to be transferred in accordance with law as per applicable policy. Which of the employee is to be transferred, where he is to be transferred, is the prerogative of the State. 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. 10. 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 grounds taken for challenging the impugned transfer order, therefore, do not stand. Impugned transfer of the petitioner does not suffer from any illegality. For the foregoing reasons, we find no merit in this writ petition and the same is accordingly dismissed. The pending applications, if any, also stand disposed of.