Dismissed

Gurmeet Singh v. State of Hp and Others

Himachal Pradesh HC3 Mar 2023CWP/162/2023

Case brief

AI extract

What is this about?

Petitioner opposed transfer from Veterinary Dispensary Dhanei, arguing he had not completed three years tenure there. Court held transfer is an incident of service and administrative convenience overrides individual preference under governing policies.

What did the court decide?

Order transferring the petitioner to a different station was upheld and the writ petition was dismissed.

Gurmeet Singh Vs State of Hp and… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.162 of 2023.

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Date of decision: 03.03.2023.

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Gurmeet Singh …..Petitioner. Versus State of Himachal Pradesh and others …..Respondents.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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The Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?¹ No. For the Petitioner : Mr. Prashant Sharma, Advocate. For the Respondents : Mr. Anup Rattan, Advocate General with Mr. I.N. Mehta, Mr. Yashwardhan Chauhan, Senior Additional Advocate Generals, Mr. J.S. Guleria, Deputy Advocate General and Mr. Rajat Chauhan, Law Officer, for respondent Nos.1 to 4.

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Tarlok Singh Chauhan, Judge (Oral)

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Aggrieved by the order of transfer, the petitioner has

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filed the instant petition for grant of the following substantive reliefs:

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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“(I) That a writ in the nature of certiorari may kindly be issued thereby quashing impugned transfer order dated 4.1.2023 (Annexure P-2).

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(II) That a writ in the nature of mandamus may kindly be issued thereby directing the respondents to allow the petitioner to continue working at present place of posting i.e. Veterinary Dispensary Dhanei.

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(III) That in the alternative, the respondents may kindly be directed to adjust private respondent at some other place as mentioned in order dated 13.12.2022.”

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The main ground on which the order of transfer has been assailed is short-stay at the given station, as according to

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the petitioner, he has recently been posted at Veterinary Dispensary, Dhanei, District Chamba, H.P. on 06.04.2022 and

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thus without permitting to complete the normal tenure of service of three years at the given station, the order of transfer cannot sustain.

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The official-respondents have filed the reply wherein it is stated that one Smt. Chanchal Kumari on completion of her normal tenure of service in the tribal area had filed a petition being CWP No. 8565 of 2022 for her transfer to a soft station and the same was disposed of by directing the official respondents to consider and decide the case of the petitioner Chanchal

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Kumari therein for her transfer to anyone of the following five

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stations:-

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“(i) Veterinary Dispensary Udaipur, Tehsil Chamba, District Chamba, H.P.

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(ii) Veterinary Dispensary Dranda, Tehsil and District Chamba, H.P.

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(iii) Veterinary Dispensary Dhanai, District Chamba, H.P.

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(iv) Veterinary Dispensary Saach, Tehsil and District Chamba, H.P.

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(v) Veterinary Dispensary Bhugnara, District Kangra, H.P.”

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The details of the official working in the above

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institutions are as under:-

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Sr. No.	Name of employee	Name of the Institution	Since when working	Tribal/Hard area served yes or no
1.	Sh. Atul Chona Pharmacist.	Veterinary Dispensary Udaipur, Chamba.	09/05/2022	No
2.	Sh. Kuldeep Singh Vety. Pharmacist	Veterinary Dispensary Dranda, Chamba	24/08/2022	Yes
3.	Sh. Gurmeet Singh Vety. Pharmacist.	Veterinary Dispensary Dhanai, Chamba.	06/04/2022	No
4.	Sh. Pankaj Kumar, Vety. Pharmacist.	Veterinary Dispensary, Saach, Chamba.	19/06/2019	He is already under transfer to tribal area.
5.	Sh. Sanjeev	Veterinary	23/05/2022	Yes”

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Kumar, Vety. Dispensary, Pharmacist. Bhugnara, Kangra.

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It was found that out of the five stations of choice as given by respondent No.5, two officials had already served in the tribal area, whereas, one was under transfer to the tribal area and out of the remaining two, the present petitioner had longer stay and thus was liable to be transferred.

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It is further averred that the present petitioner since his initial appointment with effect from 22.11.2006 has not served in the so-called tribal area and has been serving in and around his native place.

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We have heard the learned counsel for the parties and have gone through the material placed on record.

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It is not in dispute that the petitioner was having

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longer stay out of all the incumbents and thus has rightly been transferred.

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In addition to the above, it would be noted that the petitioner eversince his appointment with effect from 22.11.2006

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has been posted in and around his native place as is evident from the following table:-

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“Sr. No.	Place of Posting	Duration posting	Distance from the previous place of posting	Distance between the place of posting & the native place of the applicant	With TTA and joining time/without TTA & joining time
1.	Vety. Dispensary Charori.	22/11/2006 to 16/03/2007	First Appointment	54 K.M. (Approx.)	Without TTA & joining time.
2	I.S.D.P. at Sarol (Chamba)	19/03/2007 to 29/05/2009	49 K.M.(Approx.).	6 K.M.(Approx.)	Without TTA & joining time.
3	Vety. Dispensary Konr (Chamba).	01/06/2009 to 24/06/2009.	50 K.M.(Approx.)	44 K.M. (Approx.).	Without TTA & joining time.
4	Vety. Dispensary Jhumhar (Chamba)	25/06/2009 to 04/07/2016.	65 K.M. (Approx.).	12 K.M. (Approx.).	Without TTA & joining time.
5	Vety. Dispensary Anehar (Chamba)	05/07/2016 to 19/11/2019	49 K.M. (Approx.).	29 K.M. (Approx.).	Without TTA & joining time.
6	Vety. Hospital Choori (Chmaba)	20/11/2019 to 05/04/2022	14 K.M. (Approx.).	24 K.M. (Approx.).	Without TTA & joining time.
7	Vety. Dispensary Dhanei (Chamba)	06/04/2022 to up to date	46 K.M. (Approx.).	8 K.M. (Approx.).	Without TTA & joining time.”

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The petitioner eversince his appointment has been

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transferred as many as seven times but every time he was adjusted at the place(s) of his choice on his request.

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As regards the contention of the petitioner that

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he should be allowed to complete his normal tenure of service

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at the place of his posting in terms of the Comprehensive Guiding Principles-2013, we need only to observe that as far as the posting of the petitioner is concerned, the respondents should adhere to these Guiding Principles and in absence of any malafide, the Court will not interfere with the order of transfer simply on the ground that such action is in contravention of the transfer policy i.e. Comprehensive Guiding Principles-2013.

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After-all, such Comprehensive Guiding Principles are in the nature of executive instructions and do not confer any indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration. This was so reiterated by the Hon’ble Supreme Court in SK Nausad

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Rahaman and others vs. Union of India and others AIR 2022 SC 1494 . It shall be apt to reproduce the relevant observations as contained in paras 23 to 27 which read as under:-

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“23. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

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First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

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Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.

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Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306 held :

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“5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the

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hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. […] No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”

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The above principle was cited with approval in Union of India v. SL Abbas (1993) 4 SCC 357 where the Court held that transfer is an incident of service:

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“7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.”

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In view of the aforesaid discussion and for the reasons

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stated above, we find no reasons to interfere with the order of transfer. Consequently, the instant petition sans merit and is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.

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(Tarlok Singh Chauhan) Judge

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(Virender Singh) Judge

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3^rd March, 2023. (krt)

Gurmeet Singh v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Gurmeet Singh v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

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