The petitioner challenged a transfer order to a less difficult venue, citing violation of age-specific guidelines for difficult areas. The court held administrative guidelines lack statutory force and dismissed the petition, affirming that transfer remains a condition of service within the employer's domain.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN &
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 1781/2021
BETWEEN:-
HEM RAJ, S/O LATE SH. JULFI RAM, RESIDENT OF VILLAGE KANER, P.O. FATEHPUR, TEHSIL SARKAGHAT, DISTRICT MANDI,H.P.
....PETITIONER
(BY SH. NEEL KAMAL SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH ITS SECRETARY(ANIMAL HUSBANDRY), TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.
2. DIRECTOR OF ANIMAL HUSBANDRY, MANDI, DISTRICT MANDI, H.P.
3. DEPUTY DIRECTOR OF ANIMAL HUSBANDRY, MANDI, DISTRICT MANDI, H.P.
4. SH. PRAKASH CHAND, SON OF AND PERMANENT ADDRESS NOT KNOWN TO THE PETITIONER, PRESENTLY POSTED AS VETERINARY PHARMACIST IN THE OFFICE OF DEPUTY DIRECTOR, ANIMAL HUSBANDRY, MANDI, DISTRICT MANDI, H.P.
...RESPONDENTS
(SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA, SR. ADDL. A.G., SH. VINOD THAKUR, SH. HEMANSHU MISRA, SH. SHIV PAL MANHANS, ADDL. A.GS., AND SH. BHUPINDER THAKUR, DY. AG. FOR R-1 TO 3. SH. SANJAY K. SHARMA, ADVOCATE, FOR R-4)
2
This petition coming on for orders this day, Hon'ble Mr.
Justice Tarlok Singh Chauhan passed the following:
O R D E R
The instant petition has been filed for the grant of following substantive reliefs:
(i) that the impugned office order dated 3.2.2021 (Annexure P-1) may very kindly be quashed and set aside and the petitioner may very kindly be allowed to serve as Incharge, District Pool Store, Animal Husbandry/Breeding, Mandi, H.P.
(ii) that in the alternate, the respondents may kindly be directed to adjust the petitioner at a station which is near to Mandi or which falls in soft area.
2 The petitioner is a Veterinary Pharmacist and vide order dated 3.2.2021, has been transferred from Pool Store, Mandi to Veterinary Dispensary, Cheuni, Mandi.
3 The sole ground assailing the order of transfer is that in terms of clause 16.1 of the “Comprehensive Guiding Principles-2013” for regulating the transfer of State Government employees, the petitioner could not have been ordered to be transferred as he has crossed age of 55 years. It shall be apt to reproduce clause 16.1, which reads as under:
“16.1 The normal tenure for transfer in Difficult/Tribal Hard/Most Difficult areas will be three years i.e. Two Winters and Three Summers. It may be ensured that the Officers/ Officials have actually completed the prescribed tenure. In case
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any Officer/Official remain on long leave for whatsoever reasons, this period of absence will be deducted and he/she will have to serve more in that Area for equal period. As far as possible, efforts will be made not to post Officers/Officials in Difficult/Tribal/Hard/Remote Areas who have crossed the age of 55 (fifty five) years, but this will not be applicable in the case of promotions. On completion of normal tenure in Difficult/ Tribal/Hard/Remote areas the concerned Officers/ Officials will have an option of 5 (five) stations of choice which will be more than one District and as far as possible, efforts will be made to post them in any one stations of their choice of that category of stations in which he/she has not served earlier. The employees posted in these areas who after completion of normal tenure of Two Winters and Three Summers do not offer the choice of stations for posting and continue to serve there, can be transferred and posted anywhere in the State.”
4 It would be noticed that it is respondent No.4, who has been ordered to be transferred at the place of the petitioner and the said respondent admittedly is 56 years old.
5 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
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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. 6 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
5
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.
7 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.
8 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
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transfer. The court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.
9 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,
7
(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:-
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contravention of the statutory Rules or malafides are established.
10 As noticed above, 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.
11 No doubt, having issued these guidelines, the State should normally adhere to the same, but it may not be possible in all eventualities to follow the same religiously as is in the case in hand because one side is the petitioner, who is aged about 55
years and on the other side is respondent No.4, who is 56 years old.
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6 Confronted with this situation, learned counsel for the petitioner would argue that the officials respondents should have conveniently posted some younger official so that the petitioner or even for that matter, respondent No.4 would not have been disturbed.
7 We find no merit in this contention as 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.
8 Having said so, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge
(Satyen Vaidya)
11.8.2021 Judge
(pankaj)
3 issues framed by the court
Whether the High Court can interfere with a transfer order merely because it violates administrative guidelines regarding age limits for difficult areas.
Whether a government employee has a vested right to refuse a transfer to a different location.
If the State has the authority to transfer an employee aged above 55 against government guidelines in the interest of service.
Colour shows how this judgement treated each authority
State of Tamil NaduReferred¶40
E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3 · Who else cites this
State of KarnatakaReferred¶40
B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131 · Who else cites this
Union of IndiaReferred¶40
Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445 · Who else cites this
State of BiharReferred¶40
Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659 · Who else cites this
State of Union of IndiaReferred¶41
Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357 · Who else cites this
Rajendra CH. BhattacharjeeReferred¶41
Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532
State of M.P.Referred¶42
State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270 · Who else cites this
Union of IndiaReferred¶42
Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214 · Who else cites this
State of OrissaReferred¶42
Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169 · Who else cites this
Shri BhagwanReferred¶42
National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574 · Who else cites this
State of U.P.Referred¶42
Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104 · Who else cites this
Janardhan DebanathReferred¶43
Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245 · Who else cites this
State of U.P.Referred¶45
State of U.P. vs. Siya Ram, (2004) 7 SCC 405 · Who else cites this
State of U.P.Referred¶46
State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402 · Who else cites this
Kendriya Vidyalaya SangathanReferred¶46
Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299 · Who else cites this
Union of IndiaReferred¶47
Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592 · Who else cites this
Union of IndiaReferred¶47
Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304 · Who else cites this
State of Uttar PradeshReferred¶47
Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178 · Who else cites this
State of HaryanaReferred¶47
State of Haryana and others vs. Kashmir Singh and another,(2010) 13 SCC 306 · Who else cites this
Hem Raj
State of Himachal Pradesh Through Its Secretary(Animal Husbandry)
Director of Animal Husbandry, Mandi
Deputy Director of Animal Husbandry, Mandi
Sh. Prakash Chand
Tarlok Singh Chauhan
Satyen Vaidya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
