Partly allowed

Savita v. State of Hp and Anr.

Himachal Pradesh HC4 Nov 2023CWP/8483/2023

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting a teacher's transfer request from a difficult to a soft area due to lack of vacancies, noting the policy does not mandate vacancy availability as a condition for consideration. The court directed the respondent to reconsider the representation.

What did the court decide?

The impugned order denying transfer due to vacancy was quashed. Petitioner permitted to file a fresh representation for reconsideration within four weeks; respondent directed to decide within two week

Savita Vs State of Hp and Anr. — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No: 8483 of 2023 Decided on: 04.11.2023

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Savita

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...Petitioner

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Versus State of Himachal Pradesh & Anr

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...Respondents

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Coram:

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HON'BLE MR. JUSTICE RANJAN SHARMA, JUDGE

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WHETHER APPROVED FOR REPORTING? Yes

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For the petitioner : Mr. Vinod Chauhan and Ms. Aanchal Singh, Advocates. For the respondents : Mr. Anup Rattan, Advocate General with Mr. B.C. Verma, Additional Advocate General.

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Ranjan Sharma, (Oral)

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Notice. Mr. B.C. Vema, Learned Additional Advocate General appears and waives service of notice on behalf of the respondents.

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2 . With the consent of the parties, the instant writ petition, is taken up for disposal, at this stage, in view of the order(s) intended to be passed herein.

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3. FACTUAL MATRIX:

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3(i). The petitioner, a Trained Graduate Teacher

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(Arts) in the Elementary Education Department, has filed the instant writ petition, seeking the following prayer(s):-

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i) “That Annexure P-3 may kindly be quashed and set aside being illegal and against the directions of this Hon’ble Court as well as the transfer policy.

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ii) That the respondents may kindly be directed to consider the case of the petitioner for her transfer from present place of posting tosoft area of nearer to her house keeping in view of her adverse family circumstances and in view of the provisions of transfer policy in the interest of justice.”

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3(ii). Case of the petitioner, as submitted by Mr

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Vinod Chauhan, the learned counsel, is that the petitioner

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joined service, on first appointment, as Trained Graduate Teacher (Arts) in 2014, in Government Senior Secondary School Timbi, Education Block Shillai, i.e. a hard / difficult/rural/remote area, as per Office Memorandum dated 10^th July 2013, “Comprehensive Guiding Principles2013 for regulating the transfer of State Government Employees” {referred to as the Transfer Policy}. While working in the school at Timbi, her services were

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regularized in June 2018 and thereafter she was transferred on 22^nd March, 2018 to GSSS Kaffota, District Sirmour, which against a categorized hard/difficult/rural/remote area, in terms of the transfer policy.

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3(iii). Mr. Vinod Chauhan, learned Counsel for the petitioner submits that she had filed a Civil Writ Petition No.6338 of 2023, Annexure P-1, seeking a direction to the respondents to consider her case for posting from “TribalHard Areas” [referred to as Most Difficult / Tribal / Difficult /Hard/Rural (Remote) Areas to a “Soft Areas” [referred to as Non Tribal-Non Difficult/Hard/Rural/Remote Areas], in terms of the existing Transfer Policy.

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4. It is further submitted that in compliance to the directions passed by this Court in the aforesaid writ petition, she submitted a representation, Annexure P-2, indicating the stations of choice in the soft area, but her representation was turned down/rejected by the Respondent No.2-Directorof Elementary Education, Himachal Pradesh on 10.10.2023, Annexure P-3 , forthe reason, that no vacancy is available, at the given stations of choice in

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the soft area and all the indicated stations are already filled up. In this background, the l earned Counsel for the petitioner submits that her case has been rejected illegally and arbitrarily, on extraneous considerations and by acting

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dehors the transfer policy and therefore, her deserves to be considered in terms of the Transfer Policy.

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5. STAND OF STATE AUTHORITIES:

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Per contra, Mr. Anup Rattan, learned Advocate

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General assisted by Mr. B.C. Verma, learned Additional Advocate General submits that, unless and until the vacant stations are available, the petitioner cannot claim posting to soft areas/stations, as of right. However, the Learned Advocate General fairly submits that instead of filing reply, in this case, in case the petitioner makes a fresh representation her case shall be examined/considered, in terms of the existing transfer policy.

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6. LEGAL POSITION IN TRANSFER MATTERS:

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6(i). Borne out from the mandate of Law, as evolved

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from time to time, the legal principles in normal parlance

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and the exceptions, permitting judicial intervention are to be kept in view.

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6(ii). In normal parlance , an employee of the state government, who hold a State Cadre post, as in this case, is liable to be transferred from one place to another throughout the State. Such government servant, who holds a transferable post, has neither any fundamental right nor any vested right to remain posted at one place or to seek

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posting at stations of choice as of right. Who should be transferred where, when and in what manner is for the administration to decide. The power to transfer and the resultant order of transfer cannot be interfered with by the Courts if the power and the discretion to transfer an employee is exercised in a bonafide manner, honestly, reasonably, in public interest andexigences of service for achieving purity in day to day administration. Reference is made to the judgements passed by 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

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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) 2SCC 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

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vs. Kashmir Singh and another, (2010) 13 SCC 306 and most recently in (2022) 12 SCC 01, titled as S K Naushad Rahman vs UOI the Hon’ble Supreme Court has held that transfer is an incident of service and whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service and 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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6(iii). The exception to the above general principle is

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that the Courts can show indulgence, in case, an order of transfer of an employee, adversely affects his conditions of service like rank, status, seniority, promotion, pay or the like. In addition to this, the Courts can interdict, if the administration resorts to the transfer an employee, alien to the basic facets of Articles 14 and 16 of the Constitution of India. Even in case of a transfer of an employee, the Courts cannot remain a mute spectator and permit anything to sustain and Courts shall certainly intradict when, an order of transfer of an employee is dehors the minimum facets of fairness, reasonableness, is for achieving an alien

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purpose or issued with an oblique motive or is a result of colorable exercise of power or is based on extraneous considerations or is issued by ignoring the relevant factorsconsiderations resulting in discriminatory application of

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the existing norms and principles governing transfers or is malafide either by abuse of power and improper exercise of discretion in the absence ofany cogent material/factual background revealing public interest and administrative exigencies. A transfer is malafide when it is made not for professed purpose, such as in the normal course or in public or administrative interest or in the exigencies of service but the same is made for alien or other purpose, on a written recommendations (UO or DO Note) given by a person not connected with the affairs of the state government.Things will not stop here and even in case a transfer is made on the written recommendation (UO or DO Note) given by a Minister or a Legislator (MLA) without there being any cogent and convincing material/foundation revealing public interest and/or administrative exigencies and transfer is ordered on mere asking of these functionaries then such an action does not conforms to the principles

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of fairness, justness and does not satisfies the test of Articles 14 and 16 of the Constitution. Even in case an order of transfer appears to be ex-facie innocuous and a litigant-employee carves out a case, that the transfer does

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not conforms to the mandatory pre-requisites of a valid transfer, as mentioned hereinabove, then, the Court is competent to lift the veil and examine the real foundation of the transfer and the Courts should not hesitate, in nullifying an order so as ensure fairness, reasonableness, non-arbitrariness, equal and uniform application of normsprinciples governing transfers and to prevent perversity, malafide, arbitrariness in State Action.

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6(iv). As regards, the role of a Legislator (MLA) in giving recommendation for transfer and the validity of the aforesaid transfer order was the subject matter of Court, in catena of judgements, passed by this Court, in Ram Krishan vs. District Education Officer, reported in ILR HP 1979 HIM 481 : 1979 Shim LC 345; A.K. Vasudeva vs. State of H.P. and others, reported in ILR (Himachal Series) (1981) 10 HIM 359; 1982 Shim LC 104; CWP No 1105 of 2006, titled as Sushila Sharma vs. State of H.P.

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and others; Sant Ram Pant vs. State of H.P. and others, reported in 2009 (3) Shim. L.C. 206; CWP No 2844 of 2010, titled as Pratap Singh Chauhan vs. State of H.P. & others reported in 2010(3) Shim. LC 379, decided on 18.06.2011; CWP No.3530 of 2011, titled as Babita Thakur vs. State of H.P. and others reported in 2011(2) Shim.LC 28; Amir Chand vs. State of Himachal Pradesh, reported in 2013 (2) HLR (DB) 648; Sanjay Kumar vs. State of H.P. and Ors, reported in Latest HLJ 2013 (HP) 1051; Raj Kumar vs. State of H.P. and Ors., reported in 2015 (1) Him. L.R. (DB) 567; CWP No.2621 of 2020, titled as Lekh Raj vs. State of H.P. &Ors., decided on 17.08.2020 : 2020 SCC Online HP 3429; CWP No.511 of 2020, titled as Sheela Suryavanshi vs. State of H.P., decided on 26.8.2020; CWP No.2677 of 2020, titled as Shugal Singh vs. State of H.P., decided on 24.9.2020; CWP No.2211 of 2020, titled as Sudhir Kumar vs. State of Himachal Pradesh, decided on 29.9.2020; CWP No.5294 of 2020, titled as Abdul Hamid vs. State of H.P. and others, decided on 5.1.2021; CWP No.1387 of 2021, titled as Praveen Kumar vs. State of H.P and others, decided on 31.3.2021;

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CWP No.2862 of 2021, titled as Vipender Kalta vs. State of H.P. and others, decided on 20.7.2021; CWP No 5721 of

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2021, titled as Promila vs. State of H.P. and others, decided on 8.10.2021 and by the Division Bench of this Court in

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CWP No 2454 of 2023, titled as Sanjeev Kumar vs State of HP, decided on 25.5.2023, wherein, it has been held that a transfer is vitiated (i) In case the transfer is made sans public interest or administrative exigency ; (ii) transfer is made at the mere written recommendation (UO-DO Note) or the mere asking of an elected public representative (MLA or MP) but without there being any cogent/convincing material revealing public interest or administrative exigencies; (iii) transfer made on the mere asking-recommendation of an elected public representative (MLA or MP or Minister)by treating it to be the final word without there being an material or foundation revealing public interest and administrative exigencies ; (iv) transfer made on the basis of a recommendation given by an elected public representative (MLA or MP), which suggested a particular course of action or a particular station to which an employee should be transferred/sentsmacks of oblique

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motives and alien purpose,leading to perversity and arbitrariness’s in state action because, it is for the administration i.e. Administrative-Transferring Authority to find out a place based on public interest and exigencies of

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service by an independent and impartial application of mind to the entirety of facts in each case; (v) the elected representatives can make recommendation but transfer orders can be issued not by usurping the discretion / power but only in case foundation of public interest and administrative exigencies based on cogent and convincing material exists needs to be examined by administrationAdministrative-Transferring Authority ; (vi) the transfer made by administration-Administrative-Transferring Authority by acting or accepting the mere recommendation or an approval given by the Higher-Ups automatically,without independently and impartially examining such a recommendation/approval leads to abdication ofauthority and failure to exercise its power and discretion vested in Appointing-Transferring-Cadre Controlling Authority under the Statute i.e. the Recruitment

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and Promotion Rules issued under the proviso to Article 309 of the Constitution of India when, such power and

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discretion was meant to be exercised objectively for attaining public interest andfor exigencies of service so as to ensure uniform application of norms for attaining purity in administration ; (vii) if in a case, a transfer is to be made, by relaxing any of the provision in existing norms governing transfers, {Clause 23}, then, the transfer proposal should be initiated on departmental file,from-by the AppointingTransferring-Cadre Controlling Authority under the StatuteRecruitment and Promotion Rules, through the concerned Minister till its approved by the Competent Authority-Higher Ups and upon approval of relaxation then, only necessary transfer orders are to be issued and once the norms prescribe an act to be done in a particular manner then any infraction thereof leads to perversity and arbitrariness, which is malafide; (viii) if the transfer is a result of reverse action, based on a reference from the Higher Ups to the Appointing-Transferring-Cadre Controlling Authority by acting totally contrary to the mode-manner prescribed in Para (ix) above, is highly deprecated and impermissible ; (x) in case transfer is malafide, when, administrative action is contrary to the objects, requirements and conditions of a valid

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exercise of administrative power as per the Law laid down

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by the Hon’ble Supreme Court in (2020) 3 SCC 86 titled as Rajneesh Khajuria vs Wockhadrt Limited and Anr; and (xi) any transfer ordered on a reference coming from Top to Bottom without there being a prior proposal revealing public interest and exigencies of service based on cogent material been held to be malafide, arbitrary and such practice has been deprecated whereas, the transfer should primarily be based on a proposal initiated from Bottom to Top revealing public interest and exigencies of service based on cogent material as has been held by the Division Bench of this Court in CWP No 1730 of 2023, titled as Khube Ram vs State of HP , decided on 22.05.2023. All or any of these principles are to be examined by the Courts, depending upon the facts and circumstances of each case; and (xii) the transfer so ordered defeats the legitimate expectation of an employee by ignoring the applicable-existing norms or policy governing transfers, as has been held by the Hon’ble Supreme Court in Ms. X versus Registrar General, High Court of Madhya Pradesh, (2022) 14 SCC 187. All or any of these principles are

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to be examined by the Courts, depending upon the facts and

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circumstances of each case;

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7. In State of Himachal Pradesh there are various

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areas which are geographically and topographically not easily accessible. The State Authorities had been applying a pick and choose way of making transfers to such areas and then from such areas to soft areas in the State. At times, some employees who had served earlier were resent and those who managed their retention in soft areas enjoyed postings in soft areas. In the case of CWP No.

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1105 of 2006, titled as Sushila Sharma vs State ofHP

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decided on 27.8.2007, mandated the State Government to apply the norms and principles, governing transfers to Tribal/ Hard/ Difficult/ Remote-Rural Areas and likewise from such areas to soft areas, by formulating a rotational policy, so that the principles are equally and uniformly applied to all concerned, in which the Division bench of this Court held as under:

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“….. We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P. , who shall ensure that a proper transfer policy is formulated to ensure that the

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transfers are made only on administrative grounds and not on any others grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sent to these areas and there is a continuous process of change whereby all the employees have a chance to serve in tribal/hard areas as well as remote/rural areas. In the policy so framed, It should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forth its views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/cities are posted to rural/remote areas and hard/tribal areas in the transfer season when the transfers are made. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today. The Chief Secretary shall file his affidavit of compliance on or before 29th October, 2007 when the matter be listed in Court for this purpose only….”

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8. Incompliance of the directions passed by this

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Court, in the case of Sushila Sharma (supra), the State Government issued an Office Memorandum dated 10^th July 2013 prescribing the Norms and Principles i.e. “Comprehensive Guiding Principles-2013 as amended from time to time for regulating transfers of State Government Employees” {referred to as the Transfer Policy} and the provisions governing transfers to the Tribal-Most DifficultDifficult-Remote(rural) Areas and then from these Areas to Soft Areas read as under:-

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12. Posting of Employees in Hard /Difficult/Remote/Hard Areas :

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In view of the observations made by the Hon'ble High Court vide judgment dated 27-08-2007 in CWP No. 1105/2006 titled as Sushila Sharma. Head Teacher V/S State of H.P. & others, every department will ensure that all the employees are treated fairly and equally in the matter of transfer and posting The Departments may also ensure that every employee during his tenure of service. serves in Tribal/Hard/Difficult Areas and also in Remote/ Rural Areas. While making transfers the Department shall ensure that the employees who have already served in Tribal/ Hard Areas as well as Remote/ Rural Areas are not again sent to these Areas and there

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may be a continuous process of change whereby all the employees have a chance to serve in Tribal/ Hard Areas as well as Remote/ Rural Areas and measures shall be taken to ensure that employees remained posted in the Urban Areas/ Cities for a long period, are transferred and posted to Rural/ Remote Areas and Hard / Tribal Areas in the transfer season when the transfers are made. It will be the responsibility of concerned Head of Department/competent authority to relieve the officer/official transferred to tribal / difficult / hard / remote / rural areas. 12.1 All the Departments will ensure that all employees during their entire period of service will serve for at least single tenure in the Tribal/ Difficult/Hard areas and remote/rural areas. In order to earn their promotion, service in such areas will be mandatory. This would be subject to adequate number of posts being available in such areas. However, this will not apply to those employees who have less than 5 (Five) years to superannuate. This stipulation is to be incorporated in R & P Rules wherever applicable. A common provision to this effect has been devised by the Department of Personnel after having obtained the approval of competent authority. No Government employee can claim his transfer or posting as a matter of right. It will be the discretion of the State Government to post/ transfer any employee anywhere in the State keeping in view of the - administrative exigencies / convenience.

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15. Categorization of the Stations :

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The State of HP is hereby categorized into following categories of stations i.e. "A", "B", "C", "D" & "E" only for the purpose of regulating the transfers of employees:

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Category 'A' SOFT STATIONS :

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All stations situated within the radius of 15 kms. from the State headquarter and District headquarters connected with road including stations where on foot journey is less than 2 (Two) Kms. (Except in District Kinnaur and Lahaul & Spiti)

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Category 'B'

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Rural Areas

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i) All stations situated within the radius of 20 kms from Sub Division /Tehsil headquarter.

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ii) All stations beyond the radius of 15 Kms. from State headquarter and District headquarters where bus service is not available and on foot journey is more than 3 (Three) Kms. iii) Home town or area adjoining to area of home town within the radius of 20 Kms. of the employee regardless of its category.

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Category 'C' Difficult/hard areas:

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Where journey on foot is 5 (Five) kms and the climatic conditions are very harsh. Remote areas without facilities

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for communicating and not connected with road.

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Category 'D' Tribal Areas

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Category 'E' Most Difficult Areas

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Dodra Kawar area of Rohroo SubDivision

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Pandrah Bis Pargana, Munish Darkali and Gram Panchayat Kashapat. Gram Panchayats of Rampur Tehsil of District Shimla

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3 Pandrah Bis area of Nicharsub Division of Kinnaur District.

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4: Pin Valley of Lahaul & Spiti District. 5 Bara Bhangal areas of Baijnath Sub Division of Kangra District

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6 Chauhar Valley of Mandi District

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7 Khanyol-BagraPatwar Circle of Karsog Tehsil, Gada-Gussaini, Mathyani, Ghanyar, Thachi, Baggi, Somgad and Kholanal of Bali-Chowki Sub Tehsil, Jharwar, Kutgarh, Graman, Devgarh, Trailla, Ropa, KathogSilhBadhwaniHastpur, Ghamrehar and BhateharPatwar Circle of Padhar Tehsil, Chiuni, Kalipar, Mangarh, Thach-Bagra, North Magru and South MagruPatwar Circles of Thunag Tehsil and BatwaraPatwar Circle of Sunder Nagar Tehsil in Mandi district, Spiti. Pooh Pang Lahaul Sub Division of Tribal Districts8 Where journey on foot is more than 10 Kms

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Notwithstanding anything contained in these principles, the State Government employees who have crossed fifty five years of age are exempted from posting in C D & E categories of stations except on promotion.

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16. Regarding tenure and age limit for posting in Areas/Most Difficult Areas etc .

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16.1 The normal tenure for transfers 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 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 for more than one District and as far as possible, efforts will be made to post them in any one station 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.

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16.2 The Officers/Officials transferred from areas specified "C", "D" & "E" of para 15, will not be relieved of their duties till their substitutes join. Of late it has been observed that the officers/

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officials transferred to Difficult/ Tribal/ Remote/ Rural areas get their transfer cancelled or modified on one pretext or the other resulting inconvenience to the employees who are transferred from these Areas. In such situation, it will be ensured that the transfer orders of the employees who are transferred to Difficult/ Tribal/ Hard/Remote/ Rural Areas will neither be cancelled nor modified without making reference to the concerned Administrative Department to put forth its views. The condition of joining at new place of posting within the joining time period will be incorporated in the order itself and defaulting Officers/ Officials will be proceeded against Departmentally. It will be the responsibility of the Head of Department /competent authority to relieve the transferred employee and it may also be specified in the transfer orders as to who will be relieved first. Besides, it will also be ensured that Officers/ Officials posted in Tribal/Difficult/hard/ Rural areas join their place of postings and do not manage to get their transfers cancelled on frivolous grounds/extraneous considerations. In case of such Officers/Officials already working in Tribal/Difficult/Hard areas who have completed their normal tenure but could not be relieved due to non joining of the substitute, shall be deemed relieved after completion of fourth years to join their duties at the State Headquarter for further posting,

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16.3 The employees who are transferred to difficult/tribal/ hard/ rural areas, proceed on

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leave on medical grounds, it shall be imperative on all the Departments to strictly follow the procedure prescribed at para 13. Even if an Officer/official does not comply with the orders of the higher authorities i.e. HOD or Controlling Officer, as the case may be, disciplinary proceedings may be initiated against such officer/official under Rule 14 of the CCS (CCA) Rules, 1965.

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16.4 The transfer orders will be issued very carefully and the work in the difficult/tribal hard/remote/rural areas may not be allowed to suffer for want of working hands and the conditions of substitute will also be stipulated invariably in the transfer order itself, wherever necessary, in the interest of public. No transfer orders will be issued during the closure of Rohtang Pass in the winter season relating to stations of that area.

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16.5 Minimum 05 (five) years tenure would be mandatory for the employees belonging to tribal area and "C". "D" &"E" categories of stations to serve in their home Districts except the categories of Officers/Officials who cannot be posted their Home Stations .

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(9). In Ms. X versus Registrar General, High Court of Madhya Pradesh, (2022) 14 SCC 187 Hon’ble Supreme Court has held as under:

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It could thus be seen that the Transfer Policy incorporated by the M.P. High Court has provided

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in detail, the procedure that is required to be followed with regard to effecting the transfer of the judicial officers, their tenure at a particular posting, the circumstances in which the case should be considered for permitting the judicial officers to stay beyond the prescribed period and the manner in which the representation is to be considered, etc.

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No doubt that the said Transfer Policy is only a set of guidelines for internal administration of the District Judiciary issued by the M.P. High Court. However, while exercising its functions on the administrative side, the M.P. High Court would also be a State within the meaning of Article 12 of the Constitution of India.

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We may gainfully refer to the following observations made by this Court in Food Corpn. of India v. Kamdhenu Cattle Feed Industries: (SCC pp. 76-77, paras 8-9)

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"8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of nonarbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the

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expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.

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In Council of Civil Service Unions v. Minister for the Civil Service the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that 'the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter'. Again in Preston, In re it was stated by Lord Scarman that "the principle of fairness has an important place in the

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law of judicial review" and "unfairness in the purported exercise of a power can be such that it is an abuse or excess of power". These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Fatima Fouzials which holds that court should interfere where discretionary power is not exercised reasonably and in good faith."

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It could thus be seen that this Court has held that mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right. It is further held that the failure to consider and give due weight to it may render the decision arbitrary. It has been held that the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant. It has been held that a bona fide decision of the public authority

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reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. It has been held that the principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith.

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It could thus be seen that though the Transfer Policy may not be enforceable in law, but when the Transfer Policy has been framed by the M.P. High Court for administration of the District Judiciary, every judicial officer will have a legitimate expectation that such a policy should be given due weightage, when the cases of judicial officers for transfer are being considered .

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The matter does not end here. On rejection of her first representation, the petitioner addressed her second representation, requesting that she be posted at any of the four cities mentioned in the said representation so that her daughter could continue with her education. However, the then RG made an endorsement that the said representation is on similar ground as mentioned in the earlier representation dated 9-7-2014, which has already been rejected. The Transfer Committee endorsed that in view of the order already passed in the earlier representation dated 9-7-2014, no further reconsideration is to be made. Both the representations of the petitioner are made with

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different requests. Whereas the first representation requests for her retention at Gwalior for a period of 8 months so that her daughter could continue with her education at Gwalior; in the second representation, she had requested to be posted at either of the 4 places, where her daughter could continue with her education. However, the second representation was rejected on the ground that the earlier representation made on similar ground also stands rejected.

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The petitioner had a legitimate expectation in view of Clause 10 of the Transfer Policy to have her case considered for posting at any of the 4 places in the event her request for retention at the then present posting was not considered and as such, she made the second representation. We are at pains to say that the rejection of the second representation depicts total non-application of mind by the then RG as well as the then Judge of the Transfer Committee of the M.P. High Court. The proposal of the then RG was made in a casual manner and accepted by the then Judge on the Transfer Committee in a mechanical manner .

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We have no hesitation in holding that the petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary. As such, the petitioner has discharged her burden and the onus is shifted on Respondent 1 to show that the petitioner's transfer order

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was fair and reasonable in the facts and circumstances of the case. We find that Respondent 1 has utterly failed to discharge its burden. On the contrary, the admissions made before JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior without verifying the veracity thereof. Not only this, but it is evident that the then Judge had not looked into the annexures attached with the representation, which included the fee receipts, etc. of the petitioner's daughter.

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We may gainfully refer to the following observations made by this Court in Kalabharati Advertising Narichania V. Hemant Vimalnath: (SCC pp. 448-49, paras 25-26)

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"25. The State is under obligation to act fairly without ill will or malice in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a

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depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla, S.R. Venkataraman v. Union of India, State of A.P. v. Goverdhanlal Pittize, BPL Ltd. v. S.P. Gururaja and W.B. SEB v. Dilip Kumar Ray.)

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Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh and Union of India v. V. Ramakrishnan.)"

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It is trite that the State is under the obligation to act fairly without ill will or malice in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.

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No doubt that it is strenuously argued on behalf of the petitioner that the transfer order is mala fide and issued at the instance of

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Justice A, we do not find it necessary to go into that aspect of the matter.

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It will also be relevant to refer to the following observations made by this Court in Somesh Tiwari v. Union of India (SCC pp. 597 -98, para 16)

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"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The 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 an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the 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 set aside being wholly illegal."

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This Court has held that normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide. It has been held that mala fide is of two kinds one "malice in fact"

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and the second "malice in law". When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law.

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It could be seen that as per Clause 9 of the Transfer Policy, the petitioner is entitled to make a representation to the M.P. High Court for retaining her at the same posting, and for posting at alternate places of her choice in view of Clause 10 of the Transfer Policy. When the Transfer Policy provides for making a representation, the petitioner had a legitimate expectation that the said representation would be considered in accordance with it. Consideration of representation is not a formality. We are not saying for a moment that prior to rejection of the petitioner's representations, she should have been heard or that the reasons ought to have been communicated for such rejection. However, the least that is expected is that the representation is considered in the right earnest. When the Transfer Policy provides for a ground on which the representation is to be made, then the least that is expected is that the matter should be considered in reference to the provisions made in the Transfer Policy.

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In her first representation, the petitioner had specifically contended that she should be retained at Gwalior on the ground of her daughter's education. There was a legitimate

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expectation that Respondent 1 ought to have considered as to whether her case fits in Clause 9(a) of the Transfer Policy. The petitioner was entitled for consideration of her case on the ground that her daughter was to appear in the final year of Board Examination. The petitioner had specifically stated that her daughter was also undergoing FIITJEE coaching. She had further clearly stated that after her daughter completes the academic year, she was willing to abide by the transfer order. However, in the noting of the then RG, it was mentioned that "it is gathered that adequate educational facilities including CBSE school are available at Sidhi".

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It could thus be seen that Respondent 1 has failed to take into consideration the factors, which were required to be considered, while deciding the representation of the petitioner and had taken into consideration the factors which were not relevant. The then Judge on the Transfer Committee, in his deposition before JIC, had clearly admitted that he had not gone into the annexures, which were attached with the representation of the petitioner. Non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. We, therefore, find that the rejection of the representations of the petitioner dated 9-7-

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2014 and 11-7-2014, would also not stand the scrutiny of law.

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10. In order to examine the validity of impugned order dated 10.10.2023, (Annexure P-3), turning down the claim of the petitioner for being considered for

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posting/transfer from “Tribal-Hard Areas etc.” to a “Soft Area etc.” is to be examined in the context of the norms governing transfers, issued by the State Government on 10.7.2013 as amended from time to time, in Clauses 12 to 16 referred to above.

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11. This Court cannot refrain itself from observing

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that Clauses 12 and 16 of the Transfer Policy issued by the Respondent, mandates the State AuthoritiesRespondents to consider the cases of employees for posting “to” any station in the “Tribal-Hard Areas etc.” [referred to in Para 5 above] and “from” such areas to a “Soft Areas etc.” [referred to in Para 5 above], by adopting a continuous process of change so that all employees, who have not served in such areas even once, should be posted to such areas. This discretion is to be fairly and

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objectively exercised by sending employees to such areas (Tribal-Hard Areas etc.) who have never served in such areas, and secondly, an employee who had served earlier can be sent again to such areas, only if, either due to the cadre being small or due to the fact that available incumbents, [who have never send in such areas] fall in any of the concessional categories mandated in Clause 5 of the Transfer Policy are granted relaxation

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/exemption by the Competent Authority [under Clause 23 of Existing Norms/Policy] as to achieve the object of

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uniform and non discriminatory application of norms and principles governing transfers and to ensure fairness in the State action.

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12. The object of Clauses 12 and 16 of the existing Transfer Policy is that benefit of posting “to” and “from” the Tribal/Hard Areas” to the “Soft Areas” and vice versa should be invariably and uniformly applied on rotational

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basis, to all concerned in a cadre primarily with the twin objective; firstly, the employees who have served in

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Tribal-Hard Areas earlier are not sent again to these

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areas; and secondly, to ensure that the employees who have never served in such areas or had enjoyed their leisure postings in soft areas endlessly either by manipulating mutual transfers or adjustments by invoking political patronage or otherwise either by soliciting favours, directly or indirectly, person(s) not connected with the affairs of the Respondent-State or by managing written recommendation based on a DO-UO Note reflects a

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very bad State of affairs, for quiet same time, which is acted upon either by the Competent Authority or by the administrative-transferring authorities, merely because a recommendation was given by a person not connected or even a recommendation given by a legislative-MLA or even the concerned Minister. Such recommendations cannot be acted upon automatically, unless and until such recommendation reveals and is founded on cogent material, justifying public interest and administrative exigencies either due to complaint etc. A recommendation by a legislator-MLA can only be acted upon, in case, it reveals public interest and administrative exigencies i.e.

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based on complaint etc. in terms of Clause 16 of the existing policy. Action of resorting to transfer of an employee, on the mere asking of such persons, in absence of any material justifying public interest and administrative exigencies amounts to colorable exercise of power leading to arbitrariness in state action, by violating its own norms and principle governing transfers, is deprecated. The transfer of an employee shall accrue, in case, it is based on a proposal, from the administrative transferring authority, justifying public interest and administrative exigencies, on cogent material and then is approved by the Competent Authority. Any reverse action, flowing from top to bottom [competent authorities to administrative transferring authority] without any cogent material indicating public interest and administrative exigencies gives rise to unfairness and arbitrariness and exercise of discretion in a discriminatory manner, by ignoring its own norms, leading to perversity cannot be permitted, when, the administrative transferring authority, Head of

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Department is the best person to adjudge the necessity

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of transferring or not to transfer an employee in public interest and administrative exigencies. Even, an employee who manages transfers, on extraneous considerations i.e. written recommendations of persons not connected with the affairs of state or even a legislator are equally at fault, when, it is trite law, that an employee who seeks a transfer or cancellation/modification etc. should approach the authorities in the department, who are bound to consider such request and redress the same, within a reasonable time. It is seen that despite requests by an employee, the administrative-transfer authorities sit over the matter, compelling such employees to approach Courts or due to in action to seek asylum by way of recommendations. In this background, to ensure fairness in state action, this Court mandates that on receipt of any request/representation for transfer or against transfer the administrative transferring authority are mandated to examine the same in the light of applicable norms.

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In the aforesaid backdrop, this Court hopes and trusts that the Respondents redress the grievances-

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representation made by an employee for or against transfers expeditiously, not later than two weeks from receipt thereof,

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so as to ensure expeditious redressal and fairness in state action.

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13. Another aspect needs to examined is that after completion of normal tenure of two winters and three summers in the Difficult-Tribal Areas referred to in Clause 16 of the existing Norms governing Transfers, the respondents have retained such incumbents in these areas either by prolonging their stay in the Tribal/Hard Areas, adds and aggravates the unfairness, arbitrariness and discrimination in state action, by ignoring Clause 12 and 16 of its own Policy. The action of the respondents in prolonging the stay in Tribal-Hard Areas despite completion of normal tenure of two winters and three summers, as mandated by the Policy, by neither seeking an option nor considering an employee for posting to a station in the ‘Soft Area’ is deprecated by this Court. The respondents-State Authorities cannot ignore the

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mandate of the law. The respondents cannot ignore uniform

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and equal application of these norms when, these norms were primarily incorporated in the existing policy

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keeping in view the mandate of the judgment passed by this Court in CWP No.1105 of 2006, titled as Sushila Sharma vs. State of Himachal Pradesh.

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14. The plea of the respondents, in the impugned order, dated 10.10.2023, Annexure P-3, that the petitioner cannot be transferred to soft area i.e. Non Tribal/ Non Difficult/Non Hard/Non Remote/Non Rural areas, despite having submitted a representation, is on the ground that the respondents do not have vacancy at the stations of choice in soft areas as claimed by aforesaid employees, in considered opinion of the Court is arbitrary and perverse, on the ground that the provisions of Clause 12 and 16 of the Transfer Policy nowhere mandates such concession of posting to soft area is only to be extended against vacancy. This plea of the State Authorities,

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is arbitrary, unjust and perverse and, therefore, this plea dehors any such provision mandating the posting in soft areas after completion of normal tenure of hard

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area only against vacancy is not borne out from the policy, therefore, the same is quashed.

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15. However, keeping in view the fair submission by Mr. Anup Rattan, learned Advocate General assisted by Mr. B.C. Verma, learned Additional Advocate General to the effect that, in case, the petitioner makes a representation, her case shall be considered either against vacancy or against longer stay or otherwise so that her stay in the difficult/rural area is not prolonged any more.

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Accordingly, this Court permits the petitioner to

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file representation indicating fresh stations of choice in

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soft area within four weeks; with further directions to the Respondent No.2-Director of Elementary Education to reconsider the entire matter and decide the representation /matter within two weeks thereafter.

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16. In the entirety of the above discussion, the impugned order dated 10.10.2023 (Annexure P-3), rejecting

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the representation of the petitioner for transfer from GSSS Kaffotta, District Sirmaur for posting in a soft areas; is quashed and set aside; with directions to

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reconsider the entire matter afresh, in light of the

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observations made hereinabove and the directions contained

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in Paras 9 to 15 supra.

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In aforesaid terms, the instant writ petition

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as well as the pending miscellaneous application(s), if any, also stand disposed of.

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