Himachal Pradesh High Court | A division bench comprising of Tarlok Singh Chauhan* and Virendra Singh, JJ., held that a government employee who requires transfer on account of ‘individual hardship’ may approach the employer with his request, recommendation made by a MP on behalf of such employee cannot be sustained.
The instant petition was filed by the petitioner for quashing his transfer order dated 16-08-2022 issued by respondent no.2/ Director, Elementary Education to the Government of Himachal Pradesh.
The Court observed that the transfer was made on the basis of a note issued by a Member of Parliament, who not only recommended the transfer of the petitioner but also recommended the stations to which he can be transferred. The Court opined that
“This amounts to encroachment of the jurisdiction and authority of the Administrative Authority and, therefore, clearly is not sustainable as the question as to who and where is to be posted is the sole discretion of the Administrative Authority.”
With regards to the disclosure made by respondent no. 3 that he has approached the Member of Parliament for his transfer due to extreme hardship on personal front, the Court relied on Rajendra Roy v. Union of India, (1993) 1 SCC 148, where it was held that in case of individual hardship, it is for the employer to decide the same.
In the light of facts and circumstances of the case and arguments advanced, the Court quashed and set aside the order of transfer of the petitioner and directed the respondent no. 2 to consider the reply filed by respondent no. 3 before this Court and issue his order the transfer while taking into consideration his adverse family circumstances.
[Manoj Kumar v. State of H.P., 2022 SCC OnLine HP 4733, decided on 12-09-2022]
Advocates who appeared in this case:
Mr Mukul Sood, Advocate, Counsel for the Petitioner
Mr Ashok Sharma (Advocate General), Mr Rajinder Dogra (Senior Additional Advocate General), Mr Vinod Thakur and Mr Shiv Pal Manhans (Additional Advocate Generals0, Mr Bhupinder Thakur (Deputy Advocate General) and Mr Rajat Chauhan (Law Officer), Advocates, Counsel for the Respondent No. 1 and 2;
Mr Sanjeev Bhushan and Mr Rakesh Chauhan, Advocates, Counsel for the Respondent No. 3.
*Ritu Singh, Editorial Assistant has put this report together.
