शिमला। प्रदेश हाईकोर्ट में चल रहे तबादला धंधें के काले सच का पर्दाफाश हुआ है। हाईकोर्ट के इस आदेश ने प्रदेश की जनता की आंखें खोल दी है। यहां पढ़े पूरी जजमेंट।
दी है।
Kuldip Singh, Judge.
This judgement shall dispose of CWP Nos. 801 of 2013-A , 802 of 2013-A, 1469 of 2013-G and 1996 of 2013-J, as common and overlapping questions of law are involved in all the petitions.
CWP No. 801 of 2013-A:
2. The petitioner has assailed his transfer vide office order dated 13.2.2013 from HPPWD Dharampur Division to HPPWD Sangrah Division against vacant post. The petitioner was regularized as Motor Mate on 15.11.2008 and was posted at Dharampur Division on 7.4.2010. It has been alleged that transfer of petitioner has been done with political manipulation and not in the public interest. He was threatened by a local politician for transfer. The State has not applied fair method while transferring the petitioner. The State has not considered the seniority of the petitioner. Some of the work inspectors have completed more than 15 years at Dharampur Division only, policy of pick and choose has
been adopted for transferring the petitioner. The mother of the petitioner is 76 years old, who is under regular treatment. The petitioner is facing genuine problem. Sangrah is at a distance of 400 kilometers from Dharampur. The petitioner has been transferred under political pressure after his stay of 2 years and 10 months only at Dharampur. The transfer of the petitioner is wrong, illegal and arbitrary.
3. The respondents No. 1 to 3 have contested the petition by filing the reply. It has been stated that petitioner was appointed on 7.4.2010 as work inspector and since then he has been serving in Sub Division at Marhi, Division Dharampur. The petitioner has completed normal tenure in his present place of posting. The transfer policy of the government is in the nature of executive instructions. The transfer order dated 13.2.2013 has been issued after the approval of competent authority, who can transfer an employee at any time anywhere in the State. There is no violation of administrative rules nor any malafide is involved in the transfer of the petitioner. The submission has been made for dismissal of the petition.
4. The petitioner has filed supplementary affidavit dated 16.6.2013. It has been stated in the supplementary affidavit that petitioner has been transferred on the reference of one Mr. Chandershekher a politician having affiliation with particular political party, who even contested the election of legislative assembly constituency Dharampur, Mandi, but lost. It has been stated that about 400 transfers have been made at the behest of said Mr. Chandershekher. In this context, D.Os. reference notes (collectively) Annexure A-1 has been placed on record with the supplementary affidavit. The respondents No. 1 to 4 opted not to file any counter to the supplementary affidavit dated 16.6.2013.
CWP No. 802 of 2013-A.
5. The petitioner has assailed transfer order dated 13.2.2013 from HPPWD Dharampur Division to HPPWD Salooni Division against vacant post, which is 350 kilometers away from Dharampur Division. It has been stated that petitioner was initially appointed as motor-mate on daily wages on 4.5.1998. He was appointed as work inspector in the year 2004 and was regularized on 29.1.2008 and was posted at Mandi. The transfer of the petitioner has not been done in the public interest. There are many other work inspectors working in Dharampur Division, who have not worked at any other place except in Dharampur Division. Some of them are in that Division for the last more than 15 years. The transfer of the petitioner has been done with political manipulation and no public interest is going to be served by transferring the petitioner. The petitioner was threatened by a local politician having affiliation to a particular political party. The State has not applied fair method for transferring the petitioner, policy of pick and choose has been applied. The father of the petitioner is an old man and suffering from kidney, breathing problems and is under treatment at Mandi hospital. It has been stated that transfer of the petitioner is wrong, illegal and arbitrary.
6. The petition has been contested by respondents No. 1 to 3 by filing reply. It has been stated that petitioner was appointed as work inspector on 29.1.2008, he served HPPWD Division, Mandi up to 22.9.2008, thereafter he was posted on 23.9.2008 at HPPWD Division, Dharampur. The petitioner has completed his normal tenure in his present place of posting at Dharampur. The transfer policy of the government is in the nature of executive instructions and does not confer any enforceable right in favour of a government servant. The employer on administrative ground and in public interest has right to transfer an employee within the State anywhere. There is no violation of administrative rules nor any malafide is involved in the transfer of the petitioner. The transfer order dated 12.2.2013 has been issued after approval of competent authority. The submission has been made for dismissal of the petition.
CWP No. 1469 of 2013-G.
7. The petitioner has assailed transfer order dated 15.3.2013 from Giri Power House, HPSEBL Division, Girinagar to Andhra Power House, HPSEBL Chirgaon Division against vacancy. It has been stated that petitioner was posted as foreman in March 2008 at HPSEBL Giri Power House, Girinagar. The petitioner is going to be superannuated in August 2014. The respondent No. 1 has transfer policy, which provides an employee having a period of two years or less then two years for his retirement will not be transferred/ disturbed or shall be preferred to be posted in place of station of his choice. Chirgaon is a remote corner of District Shimla. No one has been posted in place of petitioner. It has been stated that transfer of the petitioner is illegal, arbitrary, malafide. Some posts of foremen are lying vacant. The petitioner has been transferred for extraneous reasons. The petitioner is also entitled to choice station in accordance with the transfer policy of the respondents. The transfer order is not in public interest nor any administrative exigency is involved in the impugned transfer.
8. The respondents No. 1 to 3 have filed joint reply. It has been stated that transfer of the petitioner to Chirgaon against vacancy is in public interest, in the exigency of Board’s work and on administrative grounds. The petitioner has completed normal tenure of posting at Girinagar. The transfer of the petitioner is bonafide and not actuated by any malice. The petitioner has no legal right to remain at Girinagar. There is no enforceable cause of action available to the petitioner. There is no illegality or irregularity in transferring the petitioner from Girinagar to Chirgaon. The submission has been made for dismissal of the petition.
CWP No. 1996 of 2013-J.
9. The petitioner has assailed his transfer vide order dated 4/5.3.2013 from Dharampur Division, HPPWD to Sub Division Sishu under HPPWD CV Division Udaipur against vacant post in public interest. It has been stated that petitioner was appointed as work inspector on 29.11.2008 at Dharampur. The petitioner has been transferred toUdaipurwhich is more than 450 kilometers from Dharampur. The transfer of the petitioner is not in public interest. There are many work inspectors still working in Dharampur Division for the last more than 15 years. The petitioner has been transferred under political pressure. The transfer of the petitioner is not fair. The State has adopted pick and choose policy in transferring the petitioner. The father of the petitioner has died and his mother is more than 78 years old, she is suffering from many ailments. The brother of the petitioner is in Indian Army. The petitioner alone is to take care of his family. Nobody has been transferred at the place of petitioner. The transfer of the petitioner is against the transfer policy. The transfer has been made under the pressure of a politician having affiliation to a particular political party. The said politician had threatened the petitioner. It has been stated that transfer of the petitioner is wrong, illegal and contrary to Article 14 of the Constitution ofIndia.
10. The respondents No. 1 and 2 have contested the petition by filing reply. It has been stated that petitioner has been transferred with prior approval of the competent authority after completion of normal stay. The petitioner has continuous stay at Dharampur for the last 14 years including the period after his regularization. The petitioner never served hard/ tribal area. The remaining claim of the petitioner has been denied. The submission has been made for dismissal of the petition.
11. We have heard the learned counsel for the parties in each petition. The original record produced by the department/ Board concerning the transfers has also been perused. On behalf of the petitioners, it has been submitted that impugned transfer orders are neither in public interest nor on administrative grounds. The transfers have been made at the behest of one Mr. Chandershekher (local political leader from Dharampur having affiliation with the party in power). Further, the Chief Minister has issued instructions to transfer the petitioners outside Dharampur in writing on mere suggestion made by said Chandershekher. The authorities then simply complied with the orders of the Chief Minister. In CWP No. 1469 of 2013, it has been additionally submitted that Chief Minister of the State has no role to play in the day to day functioning or administration of HPSEBL. The transfer at the instance of Chief Minister in respect of employee of HPSEBL, in any case, is wrong, illegal and not sustainable.
12. The learned Advocate General has submitted that transfer policy has no statutory force. An employee has no vested right to serve at a particular place. The employer has every right to transfer an employee in public interest or on administrative grounds. It is open to any person political or otherwise to make a request to the Chief Minister of the State regarding transfer of any employee of the State or of HPSEBL. It is for the Chief Minister of the State to consider the request received by him for transfer of the employees. Once Chief Minister of the State, being the head and final authority in the hierarchy, after due application of mind, orders transfer of any employee then such employee is bound to serve the State at the place where he has been transferred.
13. It has also been submitted by learned Advocate General that impugned transfer orders cannot be assailed on the ground that the same have been made on the directions of Chief Minister of the State. The petitioners cannot dig out files to find out reasons for transfer. In the petitions no violation of any statutory rule has been alleged contravening the transfers, nor Mr. Chandershekher at whose instance the transfers have been allegedly made outside Dharampur has been impleaded as party. No specific case of mala fides has been imputed to anyone. Assuming there are pleadings of mala fides, but even then person to whom mala fides have been attributed has not been impleaded as party in any petition, the same cannot be taken forward. In CWP No. 1469 of 2013, it has been additionally submitted that Chief Minister of the State in his capacity as such had asked HPSEBL to transfer the petitioner, which cannot be termed as interference in the working of HPSEBL. In each case, the concerned Department/Appropriate Authority has independently considered the merits of the case and only thereafter transfers have been made.
14. The learned counsel for the parties have relied upon the following decisions in support of their contentions.
15. In Chandrika Jha vs. State of Bihar and others (1984), the question before the Supreme Court was whether the then Chief Minister was entitled to usurp the functions of the Registrar of Co-operative Societies under bye-law 29 and issue direction to the Registrar to reconstitute the nominated board of directors, and if so, whether he could go further and assume the functions of the Registrar and forward to him a list of names to be nominated on the reconstituted board. It has been held that presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar under bye-law-29 in extending the term of first board of directors from time to time. The Chief Minister nor the Minister for Co-operation or Industries had the power to arrogate to himself the statutory functions of the Registrar under bye-law-29. The Act of the then Chief Minister in extending the term of the committee of management from time to time was not within his power. Such action was violative of the provisions of the Rules and the bye-laws framed thereunder. 16. In State ofPunjaband others vs. Joginder Singh Dhatt AIR 1993 SC 2486, it has been held that ordinarily the courts have no jurisdiction to interfere with the order of transfer. The Supreme Court in N.K. Singh vs. Union of India and others (1994) 6 SCC 98, has held that there are two aspects of transfer of a public servant holding a sensitive and important post. One aspect relates to the private rights of the public servant as an individual pertaining only to his service career. The other is concerned with prejudice to public interest irrespective of the individual interest. The element of prejudice to public interest can be involved only in transfers from sensitive and important public offices and not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough and there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it a vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. It has also been held that transfer of a government servant in a transferable service is a necessary incidence of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.
17. In State ofM.P.and another vs. S.S. Kourav and others (1995) 3 SCC 270, it has been held that it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or “by extraneous considerations” without any factual background foundation.
18. In Abani Kanta Ray vs. State of Orissa and others 1995 Supp (4) SCC 169, it has been held that it is settled law that transfer, which is an incidence of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfers.
19. The Supreme Court in Suresh Chandra Sharma vs. Chairman, UPSEB and others (1998) 2 SCC 66 appointed a high power committee on 13.1.1998 to investigate five areas including political and high level interference in independent functioning of the Board and accountability. The Supreme Court again considered the matter on 22.4.2005 reported in Suresh Chandra Sharma vs. Chairman UPSEB and others (2005) 3 SCC 153. In para-6 of the report, the Supreme Court has observed that counsel appearing for the State ofU.P.and Electricity Corporations were not in a position to contest the position that no Minister or government officer has any role to play in the transfers/ postings of officers and staff of such Corporations. The Supreme Court gave directions that no Minister of the State ofU.P.nor any government officer shall interfere with the transfers/ postings of the officers in any of the Corporations named in the order. All postings/ transfers of the officer/ staff of the aforesaid Corporations shall be monitored by an independent Committee consisting of persons named in the order. All proposals for transfers/ postings of officers and staff of the aforesaid Corporations should before finalization be placed before the independent Committee which shall examine and approve the transfers/ postings on merits and in the light of the guidelines for transfer policy of officers. There were other directions also.
20. In Mohd. Masood Ahmad vs. State ofU.P.and others (2007) 8 SCC 150, it has been held that even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. It is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hardand-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case.
21. The petitioners have relied upon Division Bench judgement in Amir Chand vs. State ofH.P.& ors. CWP No. 5351 of 2012-F decided on 9.1.2013, more particularly para-81 of the judgement, which is as follows:-
“81. In addition to the directions issued in the individual writ petitions, we are of the considered view that certain general directions are required to be issued. We have collated the various directions issued by us in different cases which have not been complied till today. After taking into consideration the entire scenario, we issue the following directions:
1. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are only two categories, i.e. tribal/hard areas and other areas. We have increasingly found that people who are sent to the hard/tribal areas find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C, D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A and the lowest category will be of the most difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in Category A.
2. After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every employee serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted from category A to any of the other three categories, but should not be again transferred to category A station. If after category A he is transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope for adjusting the favourites and all employees will be treated equally and there will be no heart burning between the employees.
3. We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but whenever such exception is made, a reasoned order must be passed why policy is not being followed.
4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred.
5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.
6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments.
7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers.”
(emphasis supplied)
22. We were informed that the abovesaid decision of this Court has been affirmed by theApex Court. What emerges from the above decisions is that transfer is an incidence of service and is not to be interfered with by the Court lightly unless it is shown to be arbitrary, extraneous or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. In the cases in hand, no specific mala fides have been attributed to anyone. In three petitions where the petitioners have been transferred outside
Dharampur on the allegation that such transfers have been made at the instance of one Mr. Chandershekher, he has not been impleaded as party in those petitions.
23. Indeed, the Head of Administrative Department has jurisdiction to transfer employees on the basis of his subjective satisfaction. The authority making the transfer is to be guided by transfer policy in vogue.
24. The question still remains whether the transfers in question have been made in accordance with norms and principles governing transfer or are vitiated because of being influenced by extraneous consideration. In CWP No. 801 of 2013-A, supplementary affidavit dated 16.6.2013 has been filed, in which it has been stated that petitioner has been transferred on the reference note of Mr. Chandershekher, a political leader having affiliation with a particular political party. In the affidavit, it has also been stated that about 400 transfers have been made at the instance of Mr. Chandersheker. The Annexure A-1 incorporates details of 331 persons, who have been transferred from one station to another suggested by him, including petitioners namely Sanjay Kumar, Ram Lal and Rajender Kumar. This factual position has remained uncontroverted. Rather it is substantiated by official record. The stand of the petitioner in CWP No. 801 of 2013-A is that all transfers mentioned in Annexure A-1 have been made at the instance of Mr. Chandershekher.
25. The respondents have not filed any counter to supplementary affidavit dated 16.6.2013. There is nothing on record to contradict supplementary affidavit dated 16.6.2013 that transfers mentioned in Annexure A-1 have not been made at the instance of Mr. Chandershekher. In Annexure A-1 itself, there is reference of Mr. Chandershekher. It thus emerges from Annexure A-1 that transfers mentioned in Annexure-A-1 have been made as per the suggestion made by Mr. Chandershekher. The names of petitioners Sanjay Kumar, Ram Lal, Rajinder Kumar are at Serial No. 18, 17 and 20 respectively in Annexure A-1.
26. As per communication dated 4.2.2013 originating from Chief Minister’s office, it states that the Chief Minister has approved the transfer of Sanjay Kumar, work-inspector from HPPWD (B&R) Division, Dharampur, District Mandi to HPPWD Division Sangrah, District Sirmour against vacancy. The Engineer-in-Chief, HPPWD, Shimla was requested to take necessary action accordingly. Thereupon vide office order dated 13.2.2013 Sanjay Kumar, workinspector was transferred from HPPWD Division Dharampur to HPPWD Division Sangrah against vacant post with immediate effect.
27. On 4.2.1013 the Chief Minister had also approved transfer of Ram Lal, work-inspector from HPPWD (B&R) Division, Dharampur District Mandi to HPPWD Division Salooni, District Chamba against vacancy in the same manner. The Engineer-inChief, HPPWD, Shimla was requested to take necessary action accordingly. Thereupon vide order dated 12.2.2013 Ram Lal, workinspector HPPWD Dharampur Division was transferred to HPPWD Division Salooni against vacant post with immediate effect in public interest.
28. On 4.2.2013 again Chief Minister had approved the transfer of Rajinder Kumar, work-inspector from HPPWD (B&R) Division, Dharampur, District Solan to HPPWD Division Chinab ValleyUdaipur, Sub-Division Sishu, District Lahaul-Spiti against vacancy. The Engineer-in-Chief, HPPWD, Shimla was requested to take necessary action accordingly. On 12.2.2013 office of Engineer-inChief, HPPWD Shimla apprised the office of Chief Minister that there is no division office in Dharampur. Had there been such office, perhaps, the Engineer-in-Chief would have complied even with this direction. One Rajinder Kumar, work-inspector has been working in HPPWD Division, Solan since 1.1.1995, he has completed his normal tenure. On 28.2.2013 the Chief Minister’s office asked Engineer-inChief HPPWD Shimla to read HPPWD B&R Division Dharampur District Mandi in place of HPPWD B&R Division, District Solan and issue necessary orders in respect of transfer of Rajinder Kumar, work inspector. Thereupon on 5.3.2013 Rajinder Kumar, work-inspector HPPWD Dharampur Division was transferred to Sub Division Sishu under C.V Division Udaipur, HPPWD Udaipur against vacant post with immediate effect in public interest.
29. The loose noting-sheet of file No. HPSEBL (SECTT)/FTE-II/321-3/2013 Dy. NO. 150 page -1 (PUC) reveals that vide U.O dated 4.3.2013 Special Secretary to the Chief Minister had conveyed the approval that Jaswant Singh, Foreman (HM) may be transferred with TTA/ joining time from Giri Power House Division, Girinagar District Sirmour to out of District. On 15.3.2013 vide office order No. 69 Jaswant Singh Foreman (HM) Giri Power House Division HPSEBL Girinagar was transferred to Andhra Power House Division, HPSEBL Chirgaon against vacancy with immediate effect.
30. The transfer at the instance of a person, who has no role to play in the Government, will not only be extraneous consideration, but also against public policy. It shakes the confidence of the people and creates an impression in the mind of a common man that the centre of power is somewhere else and not the Government. In order to curb this tendency and inspire confidence in general public and more particularly in the employees, it is necessary that no one should get an impression that employee can be transferred for asking at the instance of a person, who has no concern with the Government. This, if goes unchecked, is bound to affect the morale of the employees and their independent working and will not be in the interest of general public. There is, however, one caveat. That, any person has a right to make a complaint against an employee regarding his conduct to his superior or Chief Minster and even request for his transfer. It is, however, only for the competent authority to consider the request and to take appropriate action in accordance with law. Further, it is unfathomable that such large number of transfers could be made at the instance of a person who is not in the Government, nor a people’s representative as such. Issuing transfer orders at the instance of an outsider, who incidentally happens to be a Party worker, cannot be a co-incidence, but a concerted effort of the duty holders, who were otherwise responsible to preserve rule of law. Such action not only shakes the conscience of the Court, but also, inevitably, impinges upon the validity of such orders as the same are the product of colourable exercise of power.
31. In Amir Chand (supra), it has been held that no transfer should be ordered at the behest of the party worker or others, who have no connection either with the legislature or the executive. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister Incharge and /or the Head of the Department. Only after the complaint is verified should action be taken. It has been reiterated that no transfer should be made at the behest of the party workers. It is not the case of the respondents in the petitions in which petitioners have been transferred outside Dharampur that Mr. Chandershekhar is holding any position in the government or he is a Legislator. It has not been explained by the respondents in three petitions how the requests for transfer of three petitioners outside Dharampur were considered by the Chief Minister before ordering their transfers.
32. On perusal of the original record, it is noticed that the proposal for transfer has not originated from the concerned Administrative Department, but because of the direction received from the office of the Chief Minister. That is the common pattern in respect of each of these cases. The Special Secretary to the Chief Minister informed the Head of the concerned Department/Board that the Chief Minister has approved transfer of the incumbent from his present posting to the specified station against vacancy, with direction to take necessary action accordingly. In response to that communication, the Head of the Department immediately wrote back to the Special Secretary to the Chief Minister. By way of illustration, we would produce the copy of the communication sent by the Under Secretary (TE) of HPSEBL, addressed to the Special Secretary, to the Chief
Minister, which reads thus:
“HIMACHAL PRAADESH STATE ELECTRICITY BORAD
LTD.
A State Government undertaking
Subject: Regarding transfer of Shri Jaswant Singh, Foreman (TTM) (at Sr.No.1 of U.O. Note) from Giri PIID, Girinagar to out of Distt. Sirmour.
Special Secretary to the Hon’ble Chief Minister, HP may kindly refer to his U.O. No.Secy/CM-E1101/2012- DEP-B-11143 dated 4.3.2013, on the above noted subject.
In this context, it is informed that Shri Jaswant Singh, Foreman (HM) has been transferred from Giri Power House Division, Girinagar to Andhra Power House Division, Chirgaon i.e. out of Distt. Sirmour against vacancy with TTA/joining time vide order No.69 dated 15.3.2013.
The Hon’ble Chief Minister (HP) may kindly be apprised accordingly.
Sd/
Under Secretary (TE),
H.P. State Electy.Board Ltd.
Shimla-171004.
The Special Secretary
to the Hon’ble Chief Minister
H.P. Shimla-171002.”
33. Notably, the basis of and the background in which communication was required to be issued from the office of the Chief Minister and the correspondence preceding the said communication, is not produced before us. The loose notings file in the respective cases merely refer to the approval of transfer given by the Chief Minister and the fact that the incumbent has completed his normal tenure at his present place of posting and, therefore, the proposal for transfer may be approved, so that the approval given by the Chief Minister can be implemented. The tenor of the said notings leave no manner of doubt that the understanding of the Head of the Administrative Department was that, compliance of the communication received from the office of the Chief Minister was inevitable. In other words, the impugned transfer orders have been issued under dictation and for extraneous consideration and are neither for administrative exigency nor for public interest as such.
34. It is the common case of the petitioners, who have been transferred outside Dharampur that they have been transferred at the instance of Mr. Chandershekhar. There is nothing on record that after the receipt of the requests of Mr. Chandershekhar for transferring three petitioners outside Dharampur what follow up action was taken in terms of the directions given in Amir Chand (supra). On the basis of the material on record, it can be safely inferred that the three petitioners have been transferred outside Dharampur just on the requests of Mr. Chandershekhar.
35. In CWP No.1469 of 2013-G, the petitioner has been transferred from Giri Power House HPSEBL Division, Girinagar to Andhra Power House, HPSEBL, Chirgaon. The transfer has been ordered on the basis of instructions of Chief Minister mentioned in the communication dated 4.3.2013 of Special Secretary to the Chief Minister addressed to Executive Director ( Personnel) HPSEBL, indicating approval of transfer of petitioner out of District Sirmaur. On 15.3.2013, petitioner was transferred from Girinagar to Chirgaon. The Himchal Pradesh State Electricity Board Limited is a Company registered under the Companies Act, 1956. It is an autonomous body. The respondents in CWP No.1469 of 2013 have not explained the role of the Chief Minister of the State in day-to-day working and administration of the HPSEBL. It has been submitted on behalf of the respondents that competent authority after considering the communication dated 4.3.2013 originating from the office of Chief Minister has transferred the petitioner and no fault can be found with the transfer of Jaswant Singh petitioner from Girinagar to Chirgaon.
36. The respondents very innocently have taken the stand that they have transferred Jaswant Singh petitioner on the basis of communication dated 4.3.2013. The perusal of communication dated 4.3.2013 indicates that Chief Minister had approved the transfer of Jaswant Singh petitioner. The respondents have just complied with the direction of the Chief Minister for transferring Jaswant Singh outside District Sirmaur. In paragraph -5 of the petition the petitioner has pleaded that as per transfer policy an employee having a period of two years or less than two years for his retirement will not be transferred/ disturbed or shall be preferred to be posted in place of station of his choice. The respondents in reply have not denied corresponding para-5 of petition. The respondents allowed themselves to be dictated by communication dated 4.3.2013 for transferring Jaswant Singh outside District Sirmaur. The respondents have not considered that Jaswant Singh would retire in August 2014 and had about only one and half year remaining service at the time of transfer. As per transfer policy applicable in HPSEBL petitioner was not to be transferred when he was so near to retirement or he was to be transferred to a station of his choice.
37. It is common case of the petitioners that normal tenure of service at a particular station in the government as well as in HPSEBL is three years. In CWP No. 1469 of 2013-G, it is clear that petitioner was transferred at the stage when he had only one and half years remaining service. The transfer of the petitioner in CWP No. 1469 of 2013-G is not in accordance with the transfer policy, which is applicable in the HPSEBL nor before transfer of the petitioner his option for station of his choice was ascertained. In CWP No. 801 of 2013-A also, the petitioner has been transferred before completion of his tenure at HPPWD Dharampur Division. There is nothing on record as to what were the compelling reasons for transferring the petitioner before completion of his tenure. It has been contended that petitioners in CWP Nos. 802 of 2013-A and 1996 of 2013-J have completed their normal stay at Dharampur and they have no vested right of posting at Dharampur, hence liable to be transferred outside Dharampur. Indeed, as per the transfer policy, on completion of three years at one location, the employee can be transferred. However, in all the three petitions, the petitioners have been transferred out of Dharampur Division, are serving as Work Inspectors. In CWP No. 802 of 2013-A in para-3 there is specific pleading that many work inspectors are working at Dharampur for the last more than 15 years. They have not worked at any other place except Dharampur. In reply, the respondents have admitted corresponding para-3 being matter of record. It has not been denied that many work inspectors are working in Dharampur Divisioin for the last 15 years. In these circumstances, it is not understandable as to what were the compelling reasons for transferring three petitioners outside Dharampur Division. Thus in the facts and circumstances which have come on record in all the petitions, the impugned transfer orders of all the four petitioners are not sustainable, being arbitrary and vitiated because the same are issued under dictation.
38. In view of above, all the petitions being CWP Nos. 801 of 2013-A, 802 of 2013-A, 1469 of 2013-G and 1996 of 2013-J are allowed. The impugned transfer order in each petition is quashed and set-aside. The original record be returned forthwith.
( A.M. Khanwilkar ),
Chief Justice.
July 5, 2013. (Kuldip Singh ),
Judge.
(4)
