Yash Pal Pandy vs State Of H.P And Others

Tarlok Singh Chauhan, J

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

“that in view of the facts and circumstances mentioned hereinabove in this writ petition, the writ petition may kindly be allowed and the

impugned order dated 7.7.2021 issued by respondent No.3 contained in Annexure PÂ​1 & PÂ​2 may kindly be quashed and set aside. â€​

2 Respondent No.4 happens to be the sitting MLA of Chamba, on whose instance, the petitioner has been ordered to be transferred. According to

him, number of complaints against the petitioner necessitated the transfer. Copy of such complaints have been made available for perusal.

3 We are surprised to note that contents of five of the complaints are pari materia same, which are purported to have been made on different dates.

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 placeâ€​. It is for the administration to take appropriate decision.

5 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.

6 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.

7 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.

8 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.

9 Bearing in mind the aforesaid exposition of law, it would be noticed that the transfer in the instant case has been effected solely on political

consideration, that too, at the instance of a person, who has no concern with the administration or functioning of the respondentsÂ​Department.

10 The Courts are reluctant to interfere with the orders of transfer since this is an ordinary incidence of service, yet this Court has repeatedly held that

the transfers and postings should be effected only by the administrative departments.

11 In this country, we follow the British system of a non political bureaucracy and hence, it is for the bureaucrats, and not for the politicians, to

effect transfers and postings.

12 The treatise on the subject is the judgment rendered by learned Division Bench of this Court in Amir Chand versus State of Himachal Pradesh,

2013(2) HLR (DB) 648, wherein this Court prefaced the judgment with the following observations:Â​

“1. This Court is flooded with litigation filed by employees aggrieved by their transfer and sometimes, even by their nonÂtransfer when

they are not shifted out of tribal areas. The time has come when we must lay down the law with regard to the powers of the legislators to

influence transfers. Should political pressure and political influence be necessary to run the administration? Should transfers be ordered

on the asking of the legislators, members of a particular ruling party, persons belonging to certain groups without even making a reference

to the administrative department concerned? Is the policy of transfer always binding upon the Government and its employees or can the

Government flout with impunity the policy framed by it? No doubt, the employer is the master and can decide which employee is to be posted

at which particular place, but we must remember that we are governed by the Constitution of India. Does not each and every employee have

a right to claim that he should be treated fairly? Why is it that favoured employees, who are either well connected or can exercise political

or bureaucratic clout are never transferred out of the main cities and those employees who do not enjoy such political or bureaucratic

patronage have to stay in remote/tribal areas for years on end.

Another disturbing feature which we have found is that in the State of Himachal Pradesh after the period earmarked for normal transfers

is over, the transfers have to be ordered only after approval of the competent authority which normally is the Hon'ble Chief Minister. We

have found that people directly approach the Hon'ble Chief Minister using political influence and patronage without first making a

representation to the department concerned. This is a total violation of the Conduct Rules. Despite this violation of the Conduct Rules, these

requests of the employees who are backed by political patronage are accepted without even considering what will be the effect of such

transfers on the people who are to be served by these employees, or on those employees who may be affected by such transfers.

Does anybody care about the students who are studying in the schools? If no teacher is willing to go to the rural/remote areas, where will

the students of these rural and remote areas study? Does anybody care in some remote areas, dispensaries are without Doctors or

paramedical staff whereas there is more than the sanctioned number of doctors in the State and District headquarters. It was only after the

intervention of the Court that the Female Health Workers, who were to serve in the rural areas, were actually transferred there. Almost all

the Female Health Workers had been adjusted in Shimla town itself. This shows that neither the interest of the public at large nor that of the

administration was kept in view while adjusting these Female Health Workers at Shimla. When the employees want a job then they are

willing to join at any place. However, soon thereafter, political patronage is employed to get themselves transferred to a particular place.

There is more than sufficient material before the Courts to prove that transfers are made for extraneous reasons without considering the

administrative exigencies and the interests of the students.

This does not speak well of the system of the administration. We are clearly of the view that normally we would not like to interfere in

transfer orders passed in administrative interests. We are also of the considered view that all the employees, such as teachers, doctors,

nurses etc., will necessarily have to be posted in rural/remote area at some stage in their careers. The administration has to be stern and

strict in matters of transfers. At the same time, it also has to be fair and just and should treat all the employees equally. It is only because the

administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses its decisions day in

and day out, that the courts are forced to intervene. These types of cases clearly highlight the fact that transfers are being made not on the

basis of administrative exigencies but on other extraneous considerations.

Rule 20 of the Central Civil Services (Conduct) Rules, 1964 lays down that it will be misconduct for an employee to bring in political

pressure or get recommendations from others in matters relating to his service. It seems that both, the administration as well as the

employees, have forgotten that such a rule exits. Our experience is that unless an employee gets a “suitable recommendation†or brings

in political pressure, he can never get posted to a station of his choice. If action is taken against the employee for breach of the Conduct

Rules, the employee could very well say that he is damned if he does not use political pressure and damned if he does.

It would be apposite to quote a humorous poem from Shri A.S Bhatnagar's Commentary on Conduct Rules. ‘Ban on

recommendation’, a humorous poem ÂWho am I? A victim to the jealousies of those Who, to me have been quite close, Suspended from

work And, for no fault of mine. Oh Justice, what a heavy fine ! I am expected not to seek Help from one mighty or weak. They name it

pressure or canvassing, A fruit from the Forbidden Tree. Which to touch none is free. Is this bar justified, When there are cases multiplied,

Where in favours have been done, And ends foul have been badly won?â€​

13 It was further observed that there can be no manner of doubt that a legislator, who is the elected representative of the people, has a right to place

his difficulties before the Hon’ble Chief Minister or the Minister concerned. It would be well within his rights to complain to the authorities

concerned in case he finds that a particular employee is not doing his job properly. The Court further went to observe that transfer is never meant to

be a punishment but nobody can deny the fact that many times incompetent and inconvenient officials are transferred.

14 The Court thereafter, while discussing the judgments of the various High Courts including the one referred to above, observed as under:Â​

“33. From the files which this Court has seen including the files of these cases, it is apparent that transfers are being made day in and

day out at the behest of public representatives. It is true that public representatives have a right to complain against the working of

government officials. However, these complaints must be verified by the administrative department and final action has to be taken by the

administrative department. Transfer is not a punishment and if transfer is inflicted as a means of punishment, then the whole purpose of

making transfers in the public interest is set at naught. An employee who is rude or inefficient at one station will not become polite or

efficient at another station. Transfer does not serve any purpose. If the allegations of the public representatives made in the complaints

against the government servants are found to be correct, then disciplinary action should be taken against such government employees. We

live in a democracy and our elected representatives under the constitution are to work in the legislature and not as administrators. They

cannot start interfering in the administration or the working of the Executive. This has already resulted in government servants rushing to

please the political masters at the cost of doing their duties. This also demoralizes the officers who are in charge of the administration of the

department. It is they who are the best judges to decide how the department has to be administered and which employee should be

transferred to which place. The politicians cannot don the role of administrators. The earlier such inherently illegal and improper practices

are put to an end, the better it would be for the smooth functioning of the administration of the State.

As far as the concept of judicial review is concerned, the Apex Court again observed that the Court should be reluctant in interfering in

transfer orders. The scope of judicial review in the matter of transfer of a Government employee is limited and the Court should not

interfere in the transfer. The Court cannot substitute its own opinion for the opinion of the employee.

After reviewing the entire law on the subject, we can without any hesitation come to the conclusion that the scope of judicial review in

transfer matters is very limited. This court cannot interfere in the day to day functioning of the Government departments and it is for the

administrative heads to decide which employee should be posted at which place. Even earlier, we had clearly given a number of judgments

on these lines.

At the same time, this Court cannot shut its eyes to the increasing number of transfers being made not for administrative reasons but only

with a view to accommodate favoured employees. As indicated by us earlier, an employee of the department is also a citizen of the country

and is entitled to the equal protection of laws. Therefore, the State should always be fair to its employees. They must all be treated

equally.â€​

15 It is then that the following directions came to be passed:Â​

“1. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are

only two categories, i.e. tribal/ hard areas and other areas. We have increasingly found that people who are sent to the hard/ tribal areas

find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by

approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We

are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C,

D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A

and the lowest category will be of the must difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the

same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category

A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs

to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in

Category A.

After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which

category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every employee

serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted

from category A to any of the other three categories, but should not be again transferred to category A station. If after category A he is

transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope

for adjusting the favourites and all employees will be treated equally and there will be no heart burning between the employees.

We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but

whenever such exception is made, a reasoned order must be passed why policy is not being followed.

Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the

elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent

to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the

employee be transferred.

We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a

particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is

to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order

transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.

We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minster or MLA,

then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the

administrative department, the transfer may be ordered if approved by the administrative department.

No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the

executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to

complain about the functioning of the employees then the complaint must be made to the Minister In charge and/ or the Head of the

Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the

behest of party workers.â€​

16 As held by this Court in Amir Chand’s case (supra), we live in a democracy and our elected representatives under the Constitution are to work

in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. It is they

(Administrative Heads) who are the best judges to decide how the department has to be administered and which employee should be transferred to

which place. The politicians cannot don the role of administration.

17 Reverting back to the facts of the case, as observed above, out of 10 complaints placed on record, five are stereotyped and pari materia same,

which have been addressed to respondent No.4 by the respective Pradhans of Gram Panchayats, Baat, Luddu, Bakhatpur, Protha and Rinda.

18 On a pointed query as to whether respondent No.4 did undertake any exercise to conduct some sort of inquiry to confirm veracity and correctness

of the allegations against the petitioner, the answer was in negative.

19 In such circumstances, we really fail to understand how respondent No.4 could have even recommended for transfer of the petitioner.

20 That apart, it is more than settled that in case there are complaints against working of an employee, then it is incumbent upon the

department/employer to hold an inquiry and if found guilty, punish the delinquent and order of transfer cannot be passed in lieu of punishment.

21 Reference in this regard can conveniently be made to a judgment of Division Bench of this Court, authored by one of us, (Justice Tarlok Singh

Chauhan) in Raj Kumar vs. State of H.P. & ors., 2015 Labour Industrial Cases 1000, more particularly paras 22 and 23 thereof, which read as

under:Â​

[22] The learned Advocate General would, however, contend that irrespective of the U.O. Note, the petitioner cannot have any grievance

with regard to his transfer since there were numerous complaints against him and therefore, the employer has acted well within its rights to

transfer such an employee.

[23] We are afraid that this submission cannot be countenanced because it only leads to one inference that order in question would attract

the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on irrelevant ground

i.e. on the allegations made against the petitioner in the complaints. It is one thing to say that employer is entitled to pass an order of

transfer in administrative exigency but it is another thing to say that order of transfer is passed by way of or in lieu of punishment. When an

order of transfer is passed in lieu of punishment, the same is liable to be setÂaside being wholly illegal. (Ref: Somesh Tiwari v. Union of

India and others, 2009 2 SCC 592.

22 In view of aforesaid observations, we find merit in the instant petition and the same is accordingly allowed. Consequently, the impugned transfer

order dated 7.7.2021 is quashed and set aside. Pending application(s), if any, also stands disposed of, leaving the parties to bear their own costs.