Allowed

Urmila Sharma v. State of Hp and Ors.

Himachal Pradesh HC13 Aug 2021CWP/3357/2021

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh quashed a transfer order against a government supervisor dated 15.06.2021. The court held that the order, initiated based on recommendations from a former Excise and Taxation Minister who had no administrative role, constituted mala fides and an exercise of power by an extra-constitutional authority, violating the rule of law.

What did the court decide?

The impugned transfer order dated 15.06.2021 is quashed and set aside. Pending applications are disposed of.

Urmila Sharma Vs State of Hp and Ors. — Service and Employment | Himachal Pradesh HC (2021)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 13^th DAY OF AUGUST, 2021 BEFORE

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HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN

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HON'BLE MR. JUSTICE STAYEN VAIDYA

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CIVIL WRIT PETITION NO. 3357 OF 2021

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Between: URMILA SHARMA S/O SH. PITAMBER LAL R/O VPO BARSWAN TEHSIL BALH, DISTRICT MANDI, H.P. PRESENTLY WORKING AS SUPERVISOR AT CIRCLE KOTHI/REWALSAR PROJECT AT REWALSAR, DISTRICT MANDI, H.P.

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……..PETITIONER

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(BY SH. DEVENDER K. SHARMA, ADVOCATE)

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AND 1. STATE OF H.P. THROUGH SECRETARY (SOCIAL JUSTICE AND EMPOWERMENT) HP SECRETARIAT SHIMLA, H.P.

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2. THE DIRECTOR OF H.P. DIRECTORATE OF WOMEN AND CHILD DEVELOPMENT SHIMLA, H.P.

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3. THE CHILD DEVELOPMENT PROJECT OFFICER REWALSAR TEHSIL SADAR DISTRICT MANDI, H.P.

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(BY MR. ASHOK SHARMA ADVOCATE GENERAL WITH MR. SHIV PAL MANHANS, MR. VINOD THAKUR, MR. HEMANSHU MISHRA AND MR. VIKAS RATHORE, ADDL. A.GS. WITH MR. J.S. GULERIA AND MR. BHUPINDER THAKUR, DY. A.G. FOR RESPONDENTS-STATE.)

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SMT. NEELAM KUMARI, D/O OF NOT KNOWN TO THE PETITIONER, SUPERVISOR AT CIRCLE AMLA GALU/GOPALPUR TEHSIL SARKAGHAT DISTRICT MANDI, H.P.

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(MR. VINOD CHAUHAN, ADVOCATE FOR R-4)

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……….RESPONDENTS

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This petition coming on for orders this day, the Court passed the following:

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ORDER

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

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“That the impugned order dated 15.6.2021 may kindly be quashed and set aside qua the petitioner and private respondent in the interest of justice and fair play.”

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The petitioner in July 2020 was posted as Supervisor at Project Circle Kohti/Rewalsar, Tehsil Sadar District Mandi after seeking transfer on mutual basis. However, before completion of even one year she has been ordered to be transferred vide office order dated 15.6.2021 from aforesaid station to Project Circle Amla Galu/GopalpurTehsil Sarkaghat, District Mandi, H.P.

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The transfer has been assailed primarily on the basis of D.O. Note without their being any administrative exigency or public interest. In order to test the correctness and veracity of the allegations made by

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the petitioner, the Court summoned the records of the transfer and it would be noticed that the transfer of the petitioner has been initiated on the basis of recommendations/D.O. of the former Excise and Taxation Minister but has currently no role in the administration or working of the official respondents.

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Reference in this behalf can be made to the decision of this Court

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in CWP No. 2862 of 2021 titled as Vipender Kalta vs. State of H.P. &

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Ors . decided on 20.07.2021. The relevant paras of the judgment reads as under:-

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“7. 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

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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.

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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.

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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

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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. 10. 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.

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The law regarding interference by Court intransfer/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 SCC445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of

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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 SCC532; State of M.P. and another vs. S.S. Kourav andothers, (1995) 3 SCC 270; Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; AbaniKanta 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 Deba nath and another, (2004) 4SCC 245; State of U.P. vs. Siya Ram, (2004) 7 SCC 405;State of U.P. and others vs. Gobardhan Lal, (2004) 11SCC 402; Kendriya Vidyalaya Sangathan vs. DamodarPrasad Pandey and others, (2004) 12 SCC 299; SomeshTiwari 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 SCC178; 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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Transfer is a condition of service. 2. It does not adversely affect the status or emoluments or seniority of the employee.

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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.

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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. 5. 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.

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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.

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In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.

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The person against whom allegations of malafide is made should be impleaded as a party by name.

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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.

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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. 11. 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.

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It is unfortunate that cases are coming up repeatedly before this Court, in which the impugned transfer orders or transfer cancellation orders unabashedly and brazenly state that the transfer order or transfer cancellation is being done by or at the instance of persons, who have no role, position or authority in the administration of the department.

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The result of such political interference in the matter of transfers and postings of government servants is that the government servants get demoralized and they become affiliated to some political party or politician, which is wholly destructive of all norms of administration.

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This court has repeatedly held that the transfer of officials/officers is required to be effected on the basis of set norms and guidelines; and this power cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians, who has no concern with the working of the department.

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For better administration, the employees/officers must be shielded from fear of being harassed by the repeated transfers or transfers ordered at the instance of someone, who has nothing to do with the business of administration.

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In Sarvesh Kumar Awasthi vs. U.P. Jal Nigam and others (2003) 11 SCC 740, the Hon'ble Supreme Court has clearly held in para 3 as under:-

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“In our view, transfer of officers is required to be effected on the basis of set norms and guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians,whose work is not done by the officer

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concerned. For better administration, the officers concerned must have freedom from fear of being harassed by the repeated transfers or transfers ordered at the instance of someone, who has nothing to do with the business of

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administration.”

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The citizens have a fundamental right to good governance, which is possible only if government servants are politically neutral and are not transferred or otherwise victimized at the instance of a political party or politician.

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It is only when the Court notices gross irregularities being committed by the government in the matters of transfer,it becomes necessary for the court to interfere. Therefore, its time to turn the searchlight on the State Government and remind it that the transfer policy should not be taken lightly and or made a mockery or a tool to transfer government employees on the whims and fancies of the politicians.

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The Government as an ideal employer has a bounden duty to strictly safeguard the interest of its employees against the machinations of politicians. The public servants need to discharge their functions without fear or favour and they need not to toe the line drawn by the politicians.

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If such transfer is allowed to take effect, it would embolden the other political cadre and influential local level politicians of all hues to seek the transfer of unfavourable and upright government officials from their pocket boroughs and to see that they are posted in somewhere else. This would demoralize the government servants and may inspire them to amend their ways in such a way of pleasing each and everyone whoever come under the banner of some political party. If the government machinery has to serve well the people, their functioning and official routines are to be insulated against the extraneous influences. (Refer Akash Sharma vs. State of U.P., 2007(4) AWC 2899) .

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The Hon'ble Supreme Court as also this Court and various other High Courts have held in certain cases that it would be permissible for the administrative authority to consider recommendations of the MLAs or MPs or Ministers concerned, that too, in case they have received complaints regarding the working of the government servants seeking their transfer, however even then the final decision in this regard has to be taken by the administrative department as the politician cannot don the rule of administration.

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Even otherwise, upholding such kind of transfers would mean compromising with the rule of law, which is a basic feature of the Constitution, which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure.

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Rule of law contemplates governance of laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being.

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Since the recommendations to transfer the petitioner had been mooted by an extra constitutional authority, who has no role in the functioning and business of the administration, therefore, the impugned transfer of the petitioner on the basis of such recommendations cannot be sustained and is accordingly quashed.

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Consequently, the writ petition is allowed and the impugned

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transfer order dated 15.06.2021 is quashed and set aside. Pending application(s), if any, shall also stand disposed of.

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(Tarlok Singh Chauhan) Judge

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(Satyen Vaidya) Judge

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August 13, 2021 (himani)

Urmila Sharma v. State of Hp and Ors.

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Urmila Sharma v. State of Hp and Ors.

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