Case BriefsHigh Courts

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;

  1. 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.
  2. 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.
  3. That subsequently, in 2018, he was further transferred to Forest Division Reckong Peo, Kinnaur
  4. 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.
  5. That as per the petitioner he had not completed his normal stint at the said place of posting
  6. 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]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: While adjudicating a petition for quashing of a transfer order, Jaishree Thakur, J., dismissed the same being devoid of any merit.

The instant petition of certiorari has been filed under Article 226 of the Constitution of India whereby the petitioner has pleaded for quashing of the transfer order dated 14 08-2020 vide which the petitioner has been transferred from Government Senior Secondary School, Model Town Karnal to Government Senior Secondary School, Teekri.

The factual background is such that the petitioner is a clerk at Government High School Model Town Karnal, whereas his wife teaches at Government Primary School. He has a daughter who happens to be mentally challenged resulting in occasional fits of violence. She needs attention and assistance at all times. The petitioner is getting his daughter treated at a hospital in Karnal and hence, the transfer will only make his situation worse as his family would give to go through a lot of hardships. As per government policy under which, the case of the employees who have children suffering from medical ailments/permanent disability has to be considered, he has filed several option sot be transferred to a nearer place but to no avail.

Counsel for the petitioner, Parminder Singh submits that the petitioner should be posted within the town of Karnal on sympathetic grounds given that he has a mentally challenged daughter to take care of.

It is submitted by S.S. Pannu, respondent’s counsel that the case of the petitioner has been considered on sympathetic grounds while transferring him to Teekri. The place where the petitioner has been posted is hardly 7-8 kms from where he was posted earlier. It is also stated that the petitioner has worked at the same place for 6 years.

Upon careful perusal of the facts, circumstances and arguments the Court found no ground for interference in this instant petition and observed that,

“It is well settled that transfer is an incidence of service and would be open to interference by the court only if the petitioner could establish that the transfer order is mala fide in nature.”

The Court also remarked that an employee does not develop a vested right to continue on a particular post as per his/her choice. At best an employee can ask for consideration regarding his posting in order to mitigate the hardship he might have to face on account of his/her transfer. In the present case, the petitioner’s request has been duly considered on sympathetic grounds and the place of posting is at a distance of only 7 to 8 kms from where the petitioner was posted. The petitioner has not alleged any mala fides against ay senior official of the respondent department or against the transferring authority.

In view of the above, the petition has been dismissed being devoid of any merit.[Mukesh Kumar v. State of Haryana, 2020 SCC OnLine P&H 1837, decided on 05-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

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Case BriefsHigh Courts

Rajasthan High Court: Alok Sharma, J. allowed a civil writ petition filed by a person against his transfer order. As a result of which, another order was passed regarding its transfer, quashing the previous transfer order.

 In the instant case, the petitioner was transferred to the post of RTO Alwar and respondent 3 herein who was posted as RTO earlier, was transferred to the Transport Department. Since the petitioner was due to retire in just six months, he challenged his transfer order before the Rajasthan Civil Services Appellate Tribunal, Jaipur. The Tribunal quashed his transfer order. Consequently, respondent 3 was transferred back to his original post of RTO and the petitioner was directed to join Parivahan Bhavan, Jaipur. Aggrieved by the said order of the Department, the instant petition was filed.

At the outset, the Court observed that the order passed by Tribunal was a well considered and replete with cogent reasons. It remarked that a transfer is an incident of service and the discretion of an employer in transferring an employee is quite wide. Ordinarily, no interference is to be made with an order of transfer unless it violates a statutory rule or is malafide. But it was opined that the same is not an iron-clad opinion in law. The Court relied on the case of Manjula Pathak v. State of Rajasthan, (SB CWP No. 14577 of 2016), which was also considered by the Tribunal, and held that transfer of an employee, within a year of his imminent superannuation, deserved interference.

It was observed that an employee, who is to retire within one year, should not be transferred if there is no obvious cause, as such a transfer would cause avoidable disruption at the end of a government servant’s career and create difficulties in a post-retiral settlement.

The Court was of the view that it was for the State Government to satisfy the Tribunal as to the circumstances which made it manifest that transferring the petitioner was founded upon a careful evaluation of public interest and/or administrative exigencies and that the impugned transfer was not a casual and mechanical exercise of discretion. The State should also have satisfied the Tribunal that while passing the impugned transfer order, the fact of the respondent 3 superannuating in six months was consciously taken into consideration. Neither of the above was admittedly done.

In view of the above, it was held that the order passed by the Tribunal required no interference by this Court under Article 226 of the Constitution of India. No manifest injustice can be said to have been caused to the petitioner by the impugned order of transfer. The consequential order passed by respondents had thus to be sustained.

The writ petition was dismissed for being bereft of merits.[Rani Jain v. Government of Rajasthan, 2019 SCC OnLine Raj 1615, decided on 13-05-2019]

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Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Single Judge Bench comprising of Vandana Kasrekar, J., against the order of respondents where petitioner’s representation with regard to his transfer was rejected.

Facts of the case are that petitioner was working on the post of Patwari and was also the President of the District Unit of the “Patwari Association”. Petitioner was transferred in response of which he filed representation to cancel the transfer on the ground that his wife was seriously ill and he himself was suffering from 40 percent of physical disability. Since no action was taken, a writ petition was filed and respondents were directed to reply to representation made by petitioner thereafter the representation was rejected and his services were transferred. Again petitioner submitted representation against the above transfer of services where again the representation was not responded to and petitioner had to file a writ before this court whereby respondents were ordered to respond to representation of the petitioner. Respondents rejected his representation once more and aggrieved by the same petitioner had filed this instant petition.

Petitioner opposed the rejection of his representation on two grounds. First, that respondents should have taken a lenient approach by considering his disability and ill health of his wife. Second, that petitioner is immune from transfer as he was the Office Bearer of recognized Association. Court while responding to the first ground stated by petitioner, observed that humanitarian considerations for employees posting cannot outweigh administrative exigency in the posting. Court also observed that it cannot interfere unless the transfer order suffers from malafide exercise of powers. While referring to Sanjeet Hardaha v. Sachin Jain, W.A. No.50 of 2018, Ramesh Kumar Soni Vs. State of MP, W.P. 12231 of 2017 and Prashant Shrivastava v. State of M.P., W.A. No.912 of 2018 it was stated that petitioner failed to show any malafide or violation of statutory rules in passing the impugned order. Therefore, the writ petition was dismissed. [Jagendra Pipri v. State of M.P., 2018 SCC OnLine MP 499, dated 29-08-2018]