Shushma Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Challenge in this petition is to the office order dated 02.07.2020 (Annexure P-4), whereby the petitioner, a Superintendent Grade-II, was transferred from HPPWD Division Dharamshala to 2nd Mech. Circle HPPWD Dharamshala, making way for transfer of respondent No.3 at the place vacated by her.

Facts:-

2(i). Petitioner joined service in the respondent-Department on 31.01.1989 as a Clerk. She was promoted as Superintendent Grade-II and transferred from HPPWD Division Palampur to HPPWD Division Dharamshala, vide office order dated 28.02.2019 (Annexure P-1). Under this very order, respondent No.3 was also promoted as Superintendent Grade-II and transferred from HPPWD Division Dharamshala to E-in-C Office, Shimla. However, he had forgone his promotion at that time and thus was retained at Dharamshala Division.

2(ii). Respondent No.3 was, however, once again promoted as Superintendent Grade-II, vide office order dated 17.05.2020 and transferred from HPPWD Division Dharamshala to NH Division Pandoh. He did not join at NH Division Pandoh, where he was transferred on promotion, effected on 17.05.2020. Instead, two months later, the impugned office order was issued on 02.07.2020, retaining him as Superintendent Grade-II in HPPWD Division Dharamshala itself. To retain respondent No.3 in Dharamshala Division, the petitioner who on promotion as Superintendent Grade-II was transferred from Palampur to Dharamshala Division vide office order dated 28.02.2019, was transferred vide impugned order dated 02.07.2020 to 2nd Mech. Circle HPPWD Dharamshala against vacancy.

Learned counsel for the petitioner contended that office order dated 02.07.2020 is liable to be quashed and set aside as it has been issued merely on the basis of a DO/UO Note to accommodate respondent No.3. Respondent No.3 has practically remained posted in Dharamshala throughout. On his promotion effected vide office order dated 17.05.2020, respondent No.3 was transferred to NH Division Pandoh. However, he did not join there and managed to be retained in HPPWD Division Dharamshala by disturbing the petitioner who had joined at Dharamshala Division only about one and a half year back. Learned counsel further urged that the petitioner has not completed her normal tenure at HPPWD Division Dharamshala.

On the other hand, learned counsel for respondent No.3 submitted that because of his family circumstances, respondent No.3 had forgone promotion in past to the post of Superintendent Grade-II, so that he could be retained in HPPWD Division Dharamshala. By impugned order dated 02.07.2020, no prejudice has been caused to the petitioner, who under the order, has merely been shifted to 2nd Mech. Circle in same place, i.e. Dharamshala.

This Court in CWP No.2225 of 2020, titled Puran Chand Versus State of H.P. & ors., decided on 14.07.2020, has extracted following broad parameters for interference in respect to transfer of employees:-

"4. 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 place". 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.

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 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.

The personal inconvenience and hardship of an employee are considerations which lie solely within the purview of the Employer and it is always open to the aggrieved party to make a representation to his Employer."

5(i). The record produced by the respondents-State reveals that the transfer of respondent No.3 to HPPWD Division Dharamshala vice petitioner and her further adjustment in 2nd Mech. Circle HPPWD Dharamshala was effected only on the basis of a D.O. Note. The respondent-Department even though noticing that the petitioner had not completed her tenure at HPPWD Division Dharamshala, went ahead and issued the impugned transfer order citing the reason that place of her transfer remains the same. In the facts and circumstances, when the petitioner was transferred from HPPWD Division Dharamshala to 2nd Mech. Circle HPPWD Dharamshala only to make way for respondent No.3 pursuant to the D.O. note, the impugned office order dated 02.07.2020, therefore, cannot be sustained.

5(ii). We have also gone through the incumbency charts of the petitioner and respondent No.3 provided by the respondents-State. The following incumbency positions of petitioner and respondent No.3 depicted in the charts paint a very disturbing picture:-

"Complete incumbency of Smt. Sushma Devi & Sh. Joginder Pal, Supdt. Gr.II

Smt. Sushma Devi D/o Sh. Tulsi Ram DoB:- 14.09.96 DoA:- 30.01.89

30-01-1989

30-04-1990

Palampur Divn

18-05-1990

17-01-2002

5th Circle Palampur

17-01-2002

30-06-2011

Palampur Divn

04-07-2011

03-06-2013

Mech. Divn Dharamshala

03-06-2013

28-02-2019

Palampur Divn

02-03-2019

to date

Dharamshala Divn U/t to 2nd Mech. Circle Dharamshala.

Sh. Joginder Pal S/o Sh. Ram Lal DoB:- 20.11.66 DoA:- 12.02.1987

12-02-1987

22-08-2006

CE (Kangra Zone)

23-08-2006

26-07-2011

Dharamshala Divn

27-07-2011

08-12-2014

CE (Kangra Zone)

09-12-2014

To date

Dharamshala Divn.

(Joined as Supdt. Gr.II on 03.07.2020)"

It has been stated at the bar that the petitioner as well as respondent No.3 belong to State cadre. However, a perusal of the above extracted incumbency position reflects that petitioner and respondent No.3 have throughout remained posted in District Kangra. The petitioner but for around three years of stay in Dharamshala Division, remained posted in Palampur Division ever since her appointment on 30.01.1989. Whereas, respondent No.3 has served for about twenty-two years in Kangra Zone and ten years in Dharamshala Division. Despite the above incumbency chart produced by respondents No.1 and 2, respondent No.2 has justified the impugned office order in its written instructions dated 07.07.2020, placed on record by the learned Advocate General, on the ground that petitioner has not been transferred, but only shifted within same station, i.e. Dharamshala. It is surprising that these officials belonging to State Cadre have never been posted outside their obvious choice of divisions, leave aside outside the District. They have never served in the tribal/hard/difficult areas. No employee can claim preference for retention in a particular division or district throughout the service career merely on the ground that he had forgone his promotion in order for retention at a particular place or on the adverse family circumstances. The officials serving in other areas cannot be denied transfer to these places only on account of the fact that the posts there are being manned for years together by select few right from the date of their appointment. Therefore, though we quash the impugned transfer order dated 02.07.2020, however, in the facts and circumstances of the case, we direct respondents No.1 and 2-State to transfer the petitioner as well as respondent No.3 within two weeks from today in accordance with the transfer policy, considering the fact that they belong to State Cadre and have served only in District Kangra and are liable to be posted anywhere in the State.

With these observations, the writ petition stands disposed of, so also the pending miscellaneous application(s), if any.

List for compliance on 04-08-2020.