Rajesh Kumar Dhiman vs State Of Himachal Pradesh And Another

Tarlok Singh Chauhan, J

The instant petition has been filed by the petitioner for grant of the following substantive relief:-

“That the present petition be kindly be allowed and the notification/order dated 6.5.2021,Annexure P-2, may kindly be quashed and set aside.â€​

Now adverting to notification dated 6.5.2021, it would be noticed that it is an order of transfer, whereby petition has been ordered to be transferred

from office of SDSCO Nalagarh, District Solan to Development Block, Nalagarh, District Solan.

We are at a complete loss to understand as to how a petition for transfer from one building to the other or from one room to the other, in the same

building, that too, in a small town, is maintainable.

It is trite that transfer is an incidence of service and law in this regard has been lucidly discussed by this Court while adjudicating upon CWP No.

4460 of 2019 titled Anand Swaroop Sharma vs. State of H.P. and others, decided on 8.6.2020, the Court while relying upon the judgments rendered by

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 other s 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, has held as under:

 “3. 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 placeâ€​. 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.

7.It is settled law that transfer is an incidence of service and the authority, as long as it acts keeping in view the administrative exigency and taking

into consideration the public interest as the paramount consideration, has unfettered powers to effect transfer subject, of course to certain

disciplines..................................…

From the catena of authorities referred to above, it can be summed up that the judicial review of administrative order of transfer can only be

interfered with when the same is actuated with malafide or based on extraneous consideration or is against professed norms or the same could be

termed as punitive and is in lieu of any punishment.........â€​

The learned counsel for the petitioner would urge that the transfer of the petitioner has not been effected either in administrative exigency or in

public interest, but to favour the private respondent to the disadvantage of the petitioner.

We find no merit in this contention for the simple reason that the petitioner has admittedly rendered about 22 years of service with the department

and has remained throughout his service in District Solan. Even now the petitioner is in the same station and instead of holding the post of SDSCO,

Nalagarh, he is posted as SMS, Nalagarh in the same building if not in the same room. Both the posts are equivalent in status. The only difference is

that SDSCO exercises the powers of Drawing and Disbursing Officer, whereas, SMS does not have any such powers.

This Court has already considered an identical issue in CWP No. 4761 of 2020, titled ‘Satish Kumar Negi vs. State of H.P. and others, decided

on 08.01.2021, where the transfer was effected from one room to the other and it was observed as under:-

“14. As observed above, being transferred from one building to another or from one office to the other in a small town like Kullu, would hardly

qualify be termed to be a ‘transfer’ unless the petitioner can establish his right to hold the post or claim that the post to which he has been

transferred amounts to demotion or impinges upon any right of the petitioner or violates the service condition or rules.

In absence of any such plea available on record, no interference is warranted.â€​

As stated above, the transfer is not a condition of service but is an incidence of service and every employee undertakes the liability to be

transferred from one place to another. Personal inconveniences or any ego fight in the matter of transfer or posting at the end of an employee, under

no circumstances, can be addressed in the matter of challenge to the transfer order. The employer is in the best position to organize its work force for

optimized yield. The view of the Court in that behalf cannot be substituted for that of the master.

As per the Black’s Law Dictionary, ‘transfer’ means to convey or move from one place or one person to another; to pass or hand over

from one to another, especially to change over the position or control of.

The Courts normally entertain the petitions regarding transfers because invariably in those petitions the families are dislodged causing a lot of

inconvenience and hardship to the employees as also their families. But, in the instant case, as observed above, the transfer of the petitioner is from

one office to the other in the same building, which obviously, in the peculiarity of the facts and circumstances of he instant case, cannot be interfered

with.

In view of the aforesaid discussion and the reasons stated above, we find no merit in this writ petition and the same is accordingly dismissed,

leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.