Case BriefsHigh Courts

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., Civil Writ Petition No. 5622 OF 2022, 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.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Anjana Mishra, J. allowed a civil writ application challenging the Memo No. 2164 dated 18-10-2019 issued by the Additional Chief Secretary of Labour Resources Department, Bihar, Patna.

In the instant case the petitioners, twelve in number, who were Instructor and Group Instructor in I.T.I., were transferred and posted at different places by Annexures 2 and 3 dated 30-06-2019 in Memo No. 1426 and 1427. The petitioners joined their duties at their new places of posting as indicated. The authorities again amended the order of transfer vide Memo No. 2164 dated 18-10-2019 (Annexure-1) by which they declared the previous order of transfer void and again transferred the petitioners to a new place.

The counsel for the petitioner, Rajeev Kumar Singh and Priya Ranjan Singh submitted that the second Annexure was illegal, arbitrary and irrational as an order of transfer was already passed and carried out and it couldn’t have been changed. They further submitted that the counter affidavit filed by the respondent in evasive and inconclusive and does not answer any irregularities which have been pointed out by the court hence the petitioners should be allowed to continue on their respective places of posting.

The counsel for the respondents Vipin Kumar Singh submitted that the transfer had to be done taking in consideration that the petitioners had continued in their place of posting for more than five years and according to their administrative policies it was necessary to revise the transfer order and send the petitioners to other places.

The Court, placing reliance on Jyotsna Kumari v. State of Bihar, 2000 SCC OnLine Pat 156 and Mahmood Azam Siddique v. State of Bihar, 2000 SCC OnLine Pat 30 where it was held that “in the matter of transfer, once notification is acted upon, nothing subsists and the notification of transfer becomes redundant for all purposes” and thus “….the order of transfer having become redundant, the question of rescinding such order does not arise”.

 In view of the above, it was held that the transfer order vide Annexure-1 was against the principle of law and should be set aside. Hence the court quashed the impugned memo passed by Additional Chief Secretary and directed the petitioners to continue in their place of posting via Annexure-5. [Ashok Kumar Choudhary v. State of Bihar, 2020 SCC OnLine Pat 76, decided on 16-01-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjeev Kumar, J., disposed of the petition filed against the order of transfer and for release of salary for a certain period with the instruction to pay the salary to the employee for the period the petitioner claimed to have performed his duties. The order of transfer was upheld.

The facts of the case were that the petitioner was transferred from Chadoora to Handwara. The petitioner challenged the impugned order on the ground that his salary for the period when he was working as Junior Engineer in Kupwara was released either by the PHE Division, Kupwara, or the PHE Division, Chadoora. The petitioner was actually relieved after a few months of his transfer notice.  While the petitioner was working in PHE Division Kupwara, his salary for the period from August, 2016 to April, 2017 was not released on account of non-availability of requisite funds in the Division.

The Court held that the challenge to the transfer order should fail because the order was passed in the interest of administration. The petitioner had no right to remain posted at a particular place indefinitely or for a specified period. With regard to release of salary of pay, the Court held that the petitioner cannot be denied the hard-earned salary on any count, if he has worked. The paucity of funds cannot be an excuse to deny the salary to a Government employee. [Ghulam Hassan Khawja v. State of J&K, 2019 SCC OnLine J&K 243, Order dated 07-03-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 before a 2-Judge Bench comprising of Sanjay Yadav and Vivek Agarwal, JJ., against the order where petitioner, a Revenue Inspector was transferred from Municipal Council, Ashoknagar to Municipal Council, Ganjbasoda.

The facts of the case were that appellant, a Municipal employee having hometown as Ashoknagar along with 24 Municipal employees were transferred from one Municipal Council to another. It is this order of transfer which was challenged by the appellant in this appeal. It is to be noted that this transfer was due to administrative exigency passed by State Government under section 58 of M.P. Municipal Corporation Act, 1956 and under sub-section (7) of Section 94 of the M.P. Municipalities Act, 1961. The rationale behind such transfer was found to be to not allow an employee to work in their hometown and the appellant was working in Ashoknagar for eight years.

Appellant contended that his family life would be adversely affected due to the transfer. Court found this ground not appropriate for interference by the judiciary. High Court found no illegality in the impugned order, therefore, the appeal was dismissed. [Shamshad Pathan v. State of M.P.,2018 SCC OnLine MP 719, dated 12-10-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench comprising of Vandana Kasrekar, J., addressed an issue where petitioner was transferred and aggrieved by the same filed this writ petition.

Facts of the case are that petitioner at the time of filing this writ petition was a Dy. Manager in the respondent Bank and was transferred to Katni from Jabalpur. Petitioner aggrieved by the transfer order filed representation on the ground that he was about to get retired in few months. Petitioner contended that he had been getting frequently transferred which is against transfer policy. Respondents did not consider his representation and a notice was issued to petitioner under Rule 40(3) of the State Bank of India Officers Service Rules, 1992 giving him 3 days to report on duty at Katni. Petitioner filed a writ petition before the High Court wherein he was ordered to file a representation on the above notice and an application for stay on the orders of respondents. The representation was rejected by the impugned order after which petitioner filed this instant writ petition.

It was contended by the petitioner that respondents did not consider the transfer policy in full and the fact that petitioner is the Vice President of SBI SC/ST Employees Welfare Association thus exempted from transfer. Petitioner contended that impugned order did not contain the grounds mentioned by the petitioner in representation. After perusing the matter High Court was of the view that the respondents have not considered the grounds stated by the petitioner and thus impugned order was a non-speaking order. Therefore, the impugned order was set aside. [Chetram Choudhary v. State Bank of India,2018 SCC OnLine MP 508, dated 31-08-2018]