Surender Kumar vs State Of H.P & Ors

Tarlok Singh Chauhan, J

Aggrieved by the order of his transfer, the petitioner has filed the instant petition for the grant of following substantive reliefs:-

i) That the writ of certiorari may kindly be issued, quashing/setting aside the impugned office order dated 01.07.2020 (Annexure P-5)

ii) That writ of mandamus may kindly be issued, directing the respondents to allow the petitioner to continue to work at the present place of his posting i.e. Government Polytechnic (Women) Kandaghat, District Solan, H.P.

The petitioner was promoted as Lab Assistant/Technician in the year, 2016 and thereafter, he was transferred to Government Polytechnic (Women) Kandaghat, District Solan, where he is continuing to work as such till date. It is averred that in the year 2019, a group of local persons (shopkeepers) preferred a complaint against eight persons including the petitioner and on receipt thereof one Parshotam Guleria, Vice-Chairman, Khadi Gram Udyog was personally approached by these local persons regarding transfer of the present petitioner alongwith other persons. Shri Parshotam Guleria requested the Hon'ble Chief Minister to transfer the petitioner to ITI Una in public interest on the basis of the complaint. This led to the transfer of some persons but the petitioner was not transferred.

It is further averred that when the petitioner came to know about the complaint, he sent a legal notice dated 11.06.2020 to the above eight persons for filing a false complaint and after receiving the legal notice, the above eight persons met the higher authorities for transferring the petitioner to a far flung area i.e. Chamba to harass him and his family members.

It is in this background the petitioner has filed the instant petition on the ground that the transfer has been effected with the ulterior motive and malafide intention.

The respondents have contested the petition by filing a reply wherein it is averred that as per the Recruitment and Promotion Rules, the post of Lab Assistant/Technician is Class-III post and is required to be filled up 100% by way of promotion from the different Class-IV posts on the basis of inter se seniority. At present seven posts of Lab Assistant/Technician including the petitioner are filled against the total created 10 posts at Government Polytechnic, Kandaghat whereas only one post of Lab Assistant/Technician is filled and seven posts are vacant at Government Millennium Polytechnic, Chamba. Therefore, as an interim measure one post of faculty has been filled up by way of transfer and one post of Lab Technician has been filled up by way of temporary deployment of the petitioner, due to administrative exigency till further order with immediate effect.

We have heard learned counsel for the parties and have gone through the records of the case.

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 record reveals that even though there was a complaint, by a group of shopkeepers in the year 2019, against the petitioner but the same does not form the basis of his transfer, as impugned herein, as the proposal therein was to transfer the petitioner to ITI Una.

Record further reveals that the transfer of the petitioner was effected solely on account of the administrative exigency, as out of eight posts of Lab Assistant/Technician at Government Millennium Polytechnic, Chamba, only one post is filled.

This is clearly evident from the letter dated 01.07.2020 sent by the Principal, Government Millennium Polytechnic, Chamba to the Director, Technical Education, bringing to his notice the requirement of faculty and other supporting staff, more importantly, the Lab Technician as out of eight posts only one post had been filled up. Therefore, no malafide can be attributed on the part of the respondents.

In conclusion, no case for interference is made out. Consequently, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any. Parties are left to bear their own costs.