Suresh Chand vs State Of H.P. And Ors

Tarlok Singh Chauhan, J

Aggrieved by the order of transfer, dated 14.8.2020, the petitioner has preferred the instant petition for grant of following substantive reliefs:

(i) That writ in the nature of certiorari may kindly be issued and the impugned office order dated 14.08.2020 (Annexure PÂ1) as well as office order

dated 17.8.2020 (Annexure PÂ​2), may kindly be quashed and set aside.

(ii) That writ in the nature of mandamus may kindly be also issued and the respondents may kindly be directed to allow the present petitioner to

continue to work as Panchayat Secretary in Gram Panchayat Basantpur, Development Block Kunihar, Tehsil Arki, District Solan, H.P. or in the

alternative, he be adjusted in one of the place as mentioned in para 5(vii) supra against vacancy.

According to the petitioner, he was initially appointed as Panchayat Sahayak on partÂtime basis in the year 1999 and posted as such in Gram

Panchayat Chamyawal. In the year 2008, he was transferred to Gram Panchayat Palaniya and thereafter to Gram Panchayat Saryanj in the year

2009.

In the year 2015, services of the petitioner were regularized as Panchayat Secretary and thereafter in the year 2016, he was ordered to be

transferred to Gram Panchayat Basantpur, Development Block Kunihar, Tehsil Arki, District Solan.

It is averred that despite serving the department with full sincerity, honesty, devotion as well as to entire satisfaction of his superiors and there being

nothing adverse against him, he still has been transferred from Gram Panchayat Basantpur to Gram Panchayat Ghadsi, Development Block

Dharampur, District Solan vide order dated 14.8.2020.

The petitioner would claim that his transfer is unsustainable in the eyes of law as the same has not been effected in public interest or administrative

exigency, but on the basis of D.O. note.

Respondent No.3ÂZila Parishad has contested the petition by filing reply, wherein it is averred that the petitioner from his initial appointment as

Panchayat Sahayak in the year 1999 till 14.8.2020 has been working in Development Block, Kunihar i.e. for the last about 21 years and, therefore, in

such circumstances, the petitioner can take no exception to the order of transfer. In addition thereto, it is averred that there were number of

complaints against working of the petitioner. Therefore, it was for the first time that he was transferred out of the Development Block Kunihar.

We have heard learned counsel for the parties and have also 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 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.

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:Â​

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 midÂacademic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer

to consider such a personal grievance.

Adverting to the facts of the present case, it is not in dispute that the petitioner was serving as Panchayat Secretary in and around Development

Block, Kunihar for the last 21 years from 1999 till 2020. Therefore, he has no indefeasible right for being posted in the aforesaid Block. In addition

thereto, we can also not ignore the fact that there are number of complaints preferred against the petitioner, which is evident from the voluminous

record produced for our perusal.

In such circumstances, it is neither prudent nor safe to keep him posted in the station where he is serving. Moreover, in the given facts and

circumstances of the case, we are of the considered view that it is not even in the interest of the petitioner, to remain posted in Development Block,

Kunihar.

The mere fact that the transfer of the petitioner has been prompted or preempted on the basis of D.O. note will not, in the given facts and

circumstances, be of no avail, muchless furnish a cause of action to the petitioner to assail his transfer, more particularly, when he, throughout his

career, for the past 21 years has been serving only in Development Block, Kunihar.

Having said so, we find no merit in the writ petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the

parties to bear their own costs.