Himachal Pradesh High Court: Chander Bhusan Barowalia, J., while allowing the present petition, held the impugned transfer order to be arbitrary and inconsistent with the Service/Appointment Rules.
Brief Facts
The facts of the case are enumerated herewith;
- That in the year 1986, the petitioner on his appointment as Clerk, was given posting in the office of Division Forest Office, Kotgarh and in 1989, he was transferred to Division Forest Office Nichar, District Kinnaur.
- That as per the petitioner, in the year 1999, he was further transferred to Wild Life Division Sarahan and in 2017 he was transferred to Wild Life Circle, Shimla.
- That subsequently, in 2018, he was further transferred to Forest Division Reckong Peo, Kinnaur
- That through an impugned order dated 20-08-2020, the petitioner was transferred from Forest Division Reckong Peo, Kinnaur, to the Office of APD, JICA Project Rampur, District Shimla and as per the petitioner, he was transferred only to accommodate private respondent 3.
- That as per the petitioner he had not completed his normal stint at the said place of posting
- That the petitioner, feeling aggrieved, laid challenge to the impugned transfer order dated 20-08-2020 by the present petition.
Contentions
The petitioner contends that action of respondent 1 and 2, in transferring him, is unjust, unfair, arbitrary, discriminatory and thus it cannot sustain in the eyes of law. It is further contended that as per notification dated 23-07-2020, no transfer can be made during the ban period. As per the petitioner, private respondent 3 served for 20 years in the Office of Kinnaur Forest Division at Reckong Peo and on her promotion, she was transferred to JICA Project, Rampur, however, she managed a D.O. note and in order to accommodate her, the petitioner was transferred.
As per respondents, it is the prerogative of the State Government to post/transfer any employee anywhere in the State, keeping in view the administrative convenience/exigencies and no government employee can claim his/her transfer or posting as a matter of right. The petitioner is a permanent resident of Tehsil Nankhari, Shimla, and has been transferred to Rampur, which is near to his native place. The transfer of the petitioner is made on prior approval of the State Government and in public interest. The petitioner completed his stint of two and half years at Forest Division Reckong Peo, Kinnaur, and he is transferred near to his native place, so should have no grudge. Private respondent 3 instituted a separate reply, refuting and resisting the contentions raised by the petitioner in the petition. As per respondent 3, the petitioner has completed his normal stint in tribal area, that is, two winters and three summers, thus his transfer is legally sustainable. Private respondent 3 further submitted that the petitioner had earlier made a representation for his transfer from Kinnaur Forest Division to Wild Life Division Sarahan, denying that the petitioner is transferred in order to adjust her (respondent 3)
Observation
The Court while making an observation upon the State’s responsibility to make consistent and sustainable order with respect to transfer and appointment, said, “It is the policy of the respondents State that one has to be transferred from a hard/tribal area after completion of his/her tenure and his choice(s) to be taken into consideration while transferring him/her, but in the extant case, the petitioner has been transferred against his choice to the office of APD, JICA Project Rampur, District Shimla and his representation was not taken into consideration.” With respect to the contention that the place of transfer was in fact made as per the choice of the petitioner, the Court reflected disagreement and said, “The station, where the petitioner has been transferred, i.e., APD, JICA Project Rampur, District Shimla, is not the place of petitioner’s choice.”
Decision
While allowing the present petition, the Court said, “Under these circumstances, it seems that the transfer of the petitioner in place of private respondent No. 3 is made just to accommodate private respondent No. 3 and neither in public interest nor as per the transfer police in vogue and thus liable to be quashed and set-aside.”[Satyawan Mehta v. State of Himachal Pradesh, 2020 SCC OnLine HP 2126, decided on 28-10-2020]
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