A staff nurse challenged her transfer on the ground that she had a six-month-old child. The Court dismissed the petition, holding that this alone did not justify quashing the transfer after maternity benefits had been availed and seven years spent at the station.
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 9th DAY OF AUGUST, 2021
BEFORE
HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON’BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 3670 OF 2021
Between:-
HEM LATA AGED 35 YEARS, WIFE OF SHRI ARVIND KUMAR, RESIDENT OF VILLAGE & PO SER, TEHSIL JHANDUTTA, DISTT. BILASPUR, H.P., PRESENTLY WORKING AS STAFF NURSE AT COMMUNITY HEALTH CENTRE JHANDUTTA, DISTRICT BILASPUR, H.P.
...PETITIONER
(BY SH. ARUN SEHGAL, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2
2. DIRECTOR, HEALTH SERVICES, HIMACHAL PRADESH, SHIMLA171 009.
3.
...RESPONDENTS
2
(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL FOR RESPONDENTS NO. 1 AND 2 MR. DHIRAJ THAKUR, ADVOCATE, FOR RESPONDENT NO. 3)
This Petition coming on for order this day, Hon’ble Mr. Justice Tarlok Singh Chauhan, delivered the following:-
O R D E R
Aggrieved by the order of transfer, the petitioner has
filed the instant petition for the grant of following reliefs:-
“(i) That writ in the nature of certiorari may kindly be issued and the impugned Notification/Office Order dated 01.07.2021 (Annexure P-3) may kindly be quashed and set aside qua the petitioner.
(ii) That writ in the nature of mandamus may kindly be issued and the respondents may kindly be directed to allow the petitioner to continue to work as Staff Nurse at Community Health Centre, Jhandutta, District Bilaspur.”
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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.
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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.
5
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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:-
1. Transfer is a condition of service.
2. It does not adversely affect the status or emoluments or seniority of the employee.
3. 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.
4. 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
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employee nor it should be passed under political pressure.
6. 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.
7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
8. The person against whom allegations of malafide is made should be impleaded as a party by name.
9. 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.
10. 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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availed of pre natal, post natal and other maternity benefits, as available to her under law.
(Tarlok Singh Chauhan) Judge
9th August, 2021 (sanjeev)
(Satyen Vaidya) Judge
1 issue framed by the court
Could the transfer be quashed solely because the employee had a six-month-old child, after she had availed maternity benefits and served seven years at the station?
Colour shows how this judgement treated each authority
E.P. Royappa vs. State of Tamil NaduReferred¶36
E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3 · Who else cites this
B. Varadha Rao vs. State of KarnatakaReferred¶36
B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131 · Who else cites this
Union of India and others vs. H.N. KirtaniaReferred¶36
Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445 · Who else cites this
Shilpi Bose (Mrs.) and others vs. State of Bihar and othersReferred¶36
Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659 · Who else cites this
Union of India and others vs. S.L. AbbasReferred¶36
Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357 · Who else cites this
Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and othersReferred¶36
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 othersReferred¶36
State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270 · Who else cites this
Union of India and others vs. Ganesh Dass SinghReferred¶36
Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214 · Who else cites this
Abani Kanta Ray vs. State of Orissa and othersReferred¶36
Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169 · Who else cites this
National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv PrakashReferred¶36
National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574 · Who else cites this
Public Services Tribunal Bar Association vs. State of U.P. and anotherReferred¶38
Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104 · Who else cites this
Union of India and others Vs. Janardhan Debanath and anotherReferred¶38
Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245 · Who else cites this
State of U.P. vs. Siya RamReferred¶38
State of U.P. vs. Siya Ram, (2004) 7 SCC 405 · Who else cites this
State of U.P. and others vs. Gobardhan LalReferred¶38
State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402 · Who else cites this
Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and othersReferred¶38
Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299 · Who else cites this
Somesh Tiwari vs. Union of India and othersReferred¶38
Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592 · Who else cites this
Union of India and others vs. Muralidhara Menon and anotherReferred¶38
Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304 · Who else cites this
Rajendra Singh and others vs. State of Uttar Pradesh and othersReferred¶38
Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178 · Who else cites this
State of Haryana and others vs. Kashmir Singh and anotherReferred¶38
State of Haryana and others vs. Kashmir Singh and another, (2010) 13 SCC 306 · Who else cites this
1 provisions across 1 enactments
Hem Lata
State of Himachal Pradesh
Director, Health Services, Himachal Pradesh
Priyanka Thakur
Tarlok Singh Chauhan
Satyen Vaidya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
