Sanjay Kumar vs CEO-cum Secretary, HIMUDA and Others

Deepak Gupta, J.—By means of this petition, the Petitioner has challenged the order dated 24th June, 2010, whereby he has been transferred from HIMUDA Sub Division, Dharamshala to HIMUDA Sub Division, Palampur.

This Court in CWP No. 2844 of 2010, titled as Pratap Singh Chauhan v. State of H.P. and Ors. decided on 18th June, 2011, has dealt in detail with the question as to the scope of judicial interference in the administrative matters. It would be pertinent to quote the following observations:

From a reading of the judgments of the Apex Court it is apparent that a government servant cannot urge that once he has been posted and appointed in a particular place he should continue in such a place as long as he desires. Transfer is part and parcel of service and unless the order of transfer is shown to be a mala fide or violative of any statutory provisions such as an Act or Rule or passed by an authority not competent to do so it should not be normally interfered with by the High Court. The Apex Court in no uncertain terms held that administrative guidelines or policies adopted for regular transfer may at best give an opportunity to the government servant to approach the higher authorities for redressal of his/their grievance(s), but they do not give the employee any legal right to claim relief under Article 226 of the Constitution of India. The Apex Court in no uncertain terms has laid down that the Courts should not act as Appellate Authorities over such orders and the Courts cannot substitute their decision in the matter of transfer for that of the competent authorities.

We are governed by the Constitution of India. As per the constitutional scheme there are three pillars of democracy; the Legislature; the Judiciary and the Executive. Each has to work in its own sphere. This is a system of checks and balances where each can check the other, but it must be clearly understood that none of the three organs can encroach upon the jurisdiction of the other. The jurisdiction vested in this Court under Article 226 of the Constitution of India is indeed very wide. Wider the jurisdiction, more care should be taken to exercise it with greater discretion, so that questions are not raised about the functioning of the Judiciary. The Apex Court has in no uncertain terms laid down a note of caution that Courts should not interfere in transfer matters except on very strong grounds.

Having held so, this Court is also not oblivious to the factual position which exists on the spot and the situation is that day in and day out this Court is flooded with writ petitions in which employees challenge the order of their transfer on various grounds. On more than one occasion this Court has found that there are notes sent by public representatives such as Members of the Legislative Assembly recommending the transfers. No doubt, public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be the final word.

Whereas, this Court normally would not interfere in transfer matters when it is made on administrative grounds or public interest if it is proved that the transfer has been made at the behest of politicians and the administrative department has not even verified the facts, then this Court would be falling in its duty if it does not correct the situation.

In the instant case, a perusal of the record shows that a proposal for transfers was put up on 28th May, 2010, which led to the order dated 29th May, 2010, whereby Respondent No. 3 H.L. Dhiman was transferred from Dharamshala to Baddi. On 31st May, 2010, a note was received, whereby the Hon''ble Transport and Housing Minister, who is also Chairman of Himuda, directed that Shri Naresh Kumar Sharma, Additional Assistant Engineer at Solan, be transferred to Sub Division, Kullu, against vacant post. Thereafter, Respondent No. 3 H.L. Dhiman had to replace Shri Naresh Kumar at Baddi. It appears that Shri Naresh Kumar Sharma may have made a representation, but this representation is not on the file of the CEO-cum-Secretary and may have been directly sent to the Hon''ble Minister. On the request of Shri Naresh Kumar Sharma he was transferred to Kullu and the Petitioner, who was at Kullu, was then transferred to Dharamshala. Orders in this behalf were issued on 31st May, 2010. It is not disputed that the Petitioner joined at Dharamshala.

On 31st May, 2010, a note was received from the Private Secretary to the Transport and Housing Minister, addressed to the CEO-cum-Secretary, wherein it was mentioned that Respondent No. 3 H.L. Dhiman, who was under transfer from Dharamshala to Baddi, had made a request for cancellation of his transfer and it was directed that a note be put up with the proposal for approval or orders of the Hon''ble Minister. Some other notes of transfer were also put up and thereafter the CEO-cum-Secretary, HIMUDA, put up a note proposing that the transfer of Respondent No. 3 H.L. Dhiman be cancelled and the Petitioner be transferred to Palampur and consequently the impugned order was passed on 24th June, 2010.

Surprisingly, on the record of the HIMUDA, there is no representation of Respondent No. 3 H.L. Dhiman. This Court in Pratap Singh Chauhan''s case (supra) has already deprecated the practice of outsiders'' interference in administrative functioning. In this case since the Hon''ble Minister was the administrative head of HIMUDA, he, no doubt, had a right to consider the requests for transfer and he in fact only directed that on the request of Respondent No. 3 H.L. Dhiman fresh proposal be put up. There is no direction to cancel the transfer of Respondent No. 3 H.L. Dhiman. The CEO-cum-Secretary of Himuda virtually took the direction to make a fresh proposal as an order to cancel the transfer of H.L. Dhiman. No doubt, which employee is to be transferred and to which station falls strictly within the domain of the administrative department and this Court would not normally interfere in the same. However, when, as in the instant case, a transfer is cancelled within thirteen days, the administrative department must come to the Court with a better explanation than to merely state that the order of transfer is in the public interest or on account of administrative exigencies. Merely repeating this phrase is not sufficient. Is the department trying to say that the earlier orders of transfer were not made in the public interest? Obviously, if the earlier orders were passed in the public interest, there should be some material to show what necessitated the passing of the subsequent orders.

This Court is not oblivious to the fact that when the employees are transferred and directed to join at their new place of posting, that entail considerable expenditure. Their children have to leave one school and to join the other. The family is uprooted from one place and shifts to another. Where transfers are to be cancelled after a person joins, within thirteen days, like in the present case, the department must have some pressing reason to cancel such transfer orders. From the record, I find that none of these factors were taken into consideration.

It is also obvious that Respondent No. 3 H.L. Dhiman has worked at Dharamshala for almost five years. Why was this fact not brought to the notice of the Hon''ble Minister? Ordering transfers and cancelling them just at the request of the employees not only gives rise to the litigation but also gives rise to certain awkward questions. Are transfers being ordered for extraneous considerations? Are there some reasons, other than public interest and administrative exigencies, due to which transfers of the employees are being ordered and then cancelled?

On going though the record of the himuda all I can say is that if transfers are to be ordered and cancelled in the manner in which they have been done in the present case then the department can never function properly. There is no manner of doubt that the department can entertain a request by an employee, who has been transferred, that the orders of his transfer be cancelled. However, such request cannot be accepted on the mere asking of the employee. The department has to look into the facts and then decide whether the transfer order should be cancelled or should not be cancelled.

As already observed above, nobody looked into the matter as to why the Petitioner, who had been at Dharamshala only for thirteen days, should again be shifted to Palampur, albeit it is only at a distance of 40 kms. This is especially so when Respondent No. 3 H.L Dhiman had already served at Dharamshala for five years. In fact, as pointed out above, no representation of Respondent No. 3 H.L. Dhiman is on record and there is no reason given anywhere as to why his transfer is being cancelled. Merely a request has been made. Whether the request is oral or otherwise is also not sure. The same has been accepted without even verifying the facts. This is not a proper way to run any department.

In view of the above discussion, the petition is allowed and the impugned order is quashed and the Petitioner is permitted to continue functioning at Dharamshala. Respondent No. 3 H.L. Dhiman can make a proper representation to the CEO-cum-Secretary, Himuda, who shall consider the same strictly in accordance with law and if the department finds his request genuine he may be accommodated at any station without disturbing the Petitioner. No costs.

Writ petition stands disposed of. Pending applications, if any, also stand disposed of.