Kushal Singh vs Himachal Road Transport Corporation And Others

Tarlok Singh Chauhan, J

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

"That the respondent No.3 may kindly be directed to implement Annexure P-1 and further directed to accept the joining report of the petitioner at HRTC Baijnath Unit in the interest of justice and fair play."

The petitioner vide order dated 31.08.2019 was promoted as Sub Inspector in HRTC and transferred from Chamba to Pathankot. Thereafter vide order dated 20.08.2020, he was ordered to be transferred to Baijnath. It is the pleaded case of the petitioner that he was relieved from Pathankot on 20.08.2020 itself, but his joining was not deliberately accepted at Baijnath and thereafter now vide order dated 23.07.2020, he has been ordered to be transferred from HRTC Depot, Pathankot, hence, the petition.

When the matter came up on 01.09.2020, this Court passed the following orders:

"Learned counsel for respondents No.1 to 3, on instructions, states that the petitioner has concealed material facts inasmuch as he is already stood transferred on 21.08.2020, whereas, the instant petition has been filed on 23.08.2020.

As a matter of fact, the petitioner had gone to join at Baijnath Unit of the respondent-Corporation, but was not permitted to join on the ground that he has already been transferred to Chamba and, therefore, cannot be permitted to join. Let an affidavit to this effect be filed within one week.

List on 10.09.2020."

In compliance to the aforesaid directions, the respondents filed an affidavit, the relevant portion whereof as contained in para-2, reads as under:

"2. That on receipt of approved U.O. notes in the office of respondent Corporation from the office of the Hon'ble Chief Minister, regarding the transfer of petitioner from Pathankot Unit to HOFS, Baijnath, the petitioner has been transferred from HRTC Pathankot to HRTC, Baijnath vide office order dated 23.07.2020 and in his place Sh. Hem Raj Sub Inspector has been transferred from HOFS Baijnath to Pathankot Unit as substitute on the basis of longer stay. Thereafter two U.O. notes received from the Office of the Hon'ble Industries & Transport Minister regarding cancellation of transfer orders of Sh. Hem Raj, Sub Inspector from HOFS Baijnath to Pathankot unit and Sh. Kushal Singh, Sub Inspector, who is under transfer to HRTC Baijnath may be adjusted in HRTC Unit Nurpur/Chamba. In compliance to the U.O. Notes, the transfer orders of Sh. Hem Raj, Sub Inspector has been cancelled and Sh. Kushal Singh, Sub Inspector adjusted at HRTC Chamba unit vide this office order dated 21.08.2020. It is pertinent to mention here that in view of the transfer order dated 23.07.2020, the petitioner has been relieved on 20.08.2020 from HRTC Pathankot to HRTC Baijnath. The petitioner after his relieving reported in the office of HRTC Baijnath for joining on 21st August, 2020, but in the meantime, the Regional Manager, HRTC Baijnath has received a fresh transfer order of the petitioner through e mail and accordingly he has not allowed the petitioner to join the duties at HRTC Baijnath."

In order to controvert the aforesaid allegations, the petitioner has filed a supplementary affidavit wherein he has stated that even though the petitioner had reached at HRTC Baijnath on 21.08.2020, yet he was not permitted to join, though there were no orders whatsoever regarding cancellation of his transfer or any fresh orders of transfer.

The respondents thereafter filed an application to place on record the mail sent to the Regional Manager, HRTC, Baijnath, regarding the transfer of the petitioner which has admittedly been received in the office of the respondents on 21.08.2020 at 2.19 P.M.

It is vehemently contended by Shri Vinay Sharma, learned counsel for the petitioner that in absence of any other order, the respondents have intentionally delayed the joining of the petitioner and, therefore, his joining deserves to be accepted and further orders of transfer deserve to be quashed.

On the other hand, learned counsel for the respondents would contend that transfer of the petitioner has been effected in exigency of service and in fact the process for the same stood initiated on 20.08.2020 itself and not on 21.08.2020 when only a formal e-mail to this effect was sent to the Depot at Baijnath.

We have heard the learned counsel for the parties and gone through the records of the case.

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 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.

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.

However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.

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.

The law regarding interference by Court in transfer/posting of an employee, as observed above, is well settled and came up before the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3; B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131; Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532; State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270; Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574; Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104; Union of India and others Vs. Janardhan Debanath and another, (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:-

Transfer is a condition of service.

It does not adversely affect the status or emoluments or seniority of the employee.

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.

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.

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.

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.

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

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

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.

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.

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.

In order to appreciate the relative stands of the parties, we summoned the records of the case which reveals that the proposal to transfer the petitioner from Pathankot to Baijnath was at the instance of the petitioner himself, who had in fact procured two U.O. notes. However, later on, the Minister of Industries and Transport ordered the cancellation of transfer from Pathankot to Baijnath on 20.08.2020 itself and the matter was thereafter processed at different levels and formal orders to this effect came to be issued on 21.08.2020 itself.

Once, the Employer itself has taken a decision to cancel the transfer order 20.08.2020, the mere fact that it was formally communicated to the petitioner on 21.08.2020 would not be of much assistance to him, much less to furnish any cause of action to the petitioner to question the order of cancellation of transfer on the ground of non-communication or any other ground.

The action of the respondents cannot be termed to be malafide as it was first at the instance of the petitioner himself that he had initially been transferred from Pathankot to Baijnath. The respondent-employer thereafter is well within its right to alter, very, modify and cancel orders.

In addition to the above, we find that there are no specific allegations of malafides against any of the respondents herein. It is trite that plea of malafides has to be specific and demonstrable. Not only this, the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in this petition.

At the highest, even putting the most liberal construction on the writ petition, what is alleged is contravention of the orders and consequently legal malafides and nothing beyond that. The argument of malafides must, therefore, fail.

In view of the aforesaid discussion, we find no merit in this writ petition and the same is accordingly dismissed, so also the pending application(s), if any.