HP HC | [Malafide Transfer] Transfers done using external influence or to adjust influential employees around urban areas without any real administrative exigency will amount to malafide transfers; State duty bound to act as “Model Employer”

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed off the petition directing the State Government to transfer all the stakeholders in the present case in order to deliver equitable justice.

The factual background of the case involves a transfer order issued by State Government to an English Lecturer in Government Senior Secondary School (GSSS), Sanjauli. Aggrieved by the same, she filed the instant petition to quash the said order.

Counsel for the petitioner Ram Murti Bisht submitted that the transfer is malafide as the same has been done to accommodate and adjust private Respondent 3 at her position who was transferred at GSSS Theog on her own written request made 6 months back and now demanded to be posted back at GSSS Sanjauli dislodging the petitioner.

Counsel Ashok Sharma, Ranjan, Vinod Thakur, Svaneel Jaswal and Vinod Chauhan represented the respondent’s side. They cited medical reasons for doing the same and submitted that the transfer is done on compassionate grounds.

The Court discussed the term “malafide” in detail citing various judgments important being B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131, Shilpi Bose v. State of Bihar 1991 Supp (2) SCC 659 and Rajendra Roy v. Union of India (1993) 1 SCC 148 and observed that the test for a malafide transfer is to check whether the transfer was done for real administrative exigency or not. The Court applying the test and the fact that no real proof of medical grounds being the reason for transfer has been shown and that the respondent has on its own asked for transfer to Theog and after a short stay of 6 months wants to be transferred back to Sanjauli. The act clearly shows no real administrative exigency but exercise of external influence to get transfer done.

The Court relied on a judgment titled New India Public School v. Huda, (1996) 5 SCC 510 and held that the concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably.

The Court further observed that the Central Government, State Governments and likewise all public sector undertakings are expected to function like a model employer’.

A ‘model employer’ is under an obligation to conduct itself with high probity and is duty-bound to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.

 The Court observed that both the petitioner and the third respondent hold a State Cadre Post, yet they have never been posted outside the district and has rather served in and around Shimla within a radius of 35 kms – 45 kms in their entire service career which is not possible without the active support of external influence.

The Court citing an age-old adage “Hard cases make bad law” held that the act of transfer is malafide as it has been made in order to adjust the third respondent with no reasonable basis but even found the case of petitioner to not be justified entirely and hence directed the State to transfer both outside of the home district.

In view of the above, petition stands disposed off.[Sheela Suryavanshi v. State of H.P., 2020 SCC OnLine HP 1295, decided on 26-08-2020]

Arunima Bose, Editorial Assistant has put this story together

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