High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No. 2427 of 2021

Reserved on: 30.04.2021

Decided on: 04.05.2021

____________________________________________________________

Brij Lal Thakur .....Petitioner

Versus

Himachal Pradesh State Electricity Board Ltd. & Anr.

…..Respondents

_____________________________________________________________

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge

The Hon'ble Mr. Justice Chander Bhusan Barowalia,

Judge

1

Whether approved for reporting? Yes.

______________________________________________________

For the petitioner: Mr. K. D. Shreedhar, Sr. Advocate with

Mr. Ramakant Sharma, Advocate.

For the respondents: Mr. Lakshay Thakur, Advocate, for

respondent No. 1.

Mr. C. S. Thakur, Advocate, for

respondent No. 2.

(Through Video Conferencing )

Tarlok Singh Chauhan, Judge

It was the Government itself, which vide letter

dated 20

th

July, 2019, had imposed complete ban on transfers

with clear stipulations that no transfers or adjustments would

be ordered by any Departments/Boards/Corporations/

Universities etc. during the ban period without obtaining the

prior approval of the Hon’ble Chief Minister to the concerned

Minister-in-Charge, that too in the circumstances specifically

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Whether reporters of Local Papers may be allowed to see the judgment?

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High Court of H.P.provided under para 8 of the Comprehensive Guiding

Principles-2013, circulated vide OM No.Per(AP-B)-E(3)-

17/2012, dated 10.07.2013, which reads as under:-

“8.During the ban period: During the period of ban,

transfers will be ordered with the prior approval of the

Chief Minister, if needed, that too in the following

circumstances:-

(i) To fill up the required posts lying vacant in

tribal/difficult/hard area which need immediate

filling up in the public interest or such functional

posts in the absence of which the work is

suffering.

(ii) To fill up the vacancies arising on account of

retirement, promotion and new creation.

(iii) In the cases where employees are transferred on

account of disciplinary proceedings/vigilance

cases/criminal proceedings etc.

(iv)To fill up the vacant posts in view the

administrative exigencies.

(v)In the cases of exigencies and on administrative

grounds as well as priorities of the Government,

by recording reasons in writing, the condition of

short stay and short distance can be condoned.”

2. After issuance of the aforesaid notification, it was

noticed by the Government that despite the instructions

frequent transfers in other eventualities were being made by

the various Departments/Boards/Corporations/Universities

were still being made in violation of the instructions.

Therefore, the State Government vide its notification dated

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High Court of H.P.23.07.2020 decided to impose complete ban on transfers and

directed that no transfer or adjustment shall be ordered by

the Departments/Boards/ Corporations/Universities during the

ban period except in rarest of the rare cases i.e. only on

extreme medical grounds or on administrative exigencies that

too with the prior approval of the Hon’ble Chief Minister

through the concerned Minister-in-Charge in accordance with

the Comprehensive Guiding Principles dated 10.07.2013.

3. The aforesaid instructions were thereafter

modified vide notification dated 19.11.2020 by continuing the

ban on general transfers and permitting transfers only on the

following eventualities that too with the prior approval of the

competent authority:-

3. Broadly, transfers may be ordered, strictly with

approval of the competent authority, only in the

following eventualities:-

(i) To fill up vacant posts in tribal/difficult/hard areas;

(ii) To fill up vacancies arising out of retirements,

promotions and creation of new posts;

(iii) Transfers necessitated on account of disciplinary

matters, vigilance cases, criminal proceedings etc.;

(iv) In cases involving administrative grounds and

exigencies.

4. It would, however, be noticed that despite these

instructions, the transfers are being effected by flouting and

violating these guidelines with impunity, as a result whereof,

the Courts are flooded with the litigations of transfer.

5. Despite the law on the subject being well settled,

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High Court of H.P.yet we find the same is being violated with impunity either by

the political executive or by the administrative authority,

constraining the employees to have initially approached the

Administrative Tribunal and on its closure, this Court,

unnecessarily clogging its docket.

6. It is trite that transfer is an incidence of service

and as long as the authority acts keeping in view the

administrative exigency and taking into consideration the

public interest as the paramount consideration, it has

unfettered powers to effect transfer subject of course to

certain disciplines. Once it is admitted that the petitioner is

State government employee and holds a transferable post

then he is liable to be transferred from one place to the other

within the District in case it is a District cadre post and

throughout the State in case he holds a State cadre post. A

government servant holding a transferable post has no vested

right to remain posted at one place or the other and courts

should not ordinarily interfere with the orders of transfer

instead affected party should approach the higher authorities

in the department. Who should be transferred where and in

what manner is for the appropriate authority to decide. The

courts and tribunals are not expected to interdict the working

of the administrative system by transferring the officers to

“proper place”. It is for the administration to take appropriate

decision.

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High Court of H.P.7. Even the administrative guidelines for regulating

transfers or containing transfer policies at best may afford an

opportunity to the officer or servant concerned to approach

their higher authorities for redressal but cannot have the

consequence of depriving or denying the competent authority

to transfer a particular officer/servant to any place in public

interest and as is found necessitated by exigencies of service

as long as the official status is not affected adversely and

there is no infraction of any career prospects such as

seniority, scale of pay and secured emoluments. Even if the

order of transfer is made in transgression of administrative

guidelines, the same cannot be interfered with as it does not

confer any legally enforceable rights unless the same is

shown to have been vitiated by mala fides or made in

violation of any statutory provision. The government is the

best judge to decide how to distribute and utilize the services

of its employees.

8. However, this power must be exercised honestly,

bonafide and reasonably. It should be exercised in public

interest. If the exercise of power is based on extraneous

considerations without any factual background foundation or

for achieving an alien purpose or an oblique motive it would

amount to mala fide and colourable exercise of power. A

transfer is mala fide when it is made not for professed

purpose, such as in normal course or in public or

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High Court of H.P.administrative interest or in the exigencies of service but for

other purpose, such as on the basis of complaints. It is the

basic principle of rule of law and good administration that

even administrative action should be just and fair. An order of

transfer is to satisfy the test of Articles 14 and 16 of the

Constitution otherwise the same will be treated as arbitrary.

9. Judicial review of the order of transfer is

permissible when the order is made on irrelevant

consideration. Even when the order of transfer which

otherwise appears to be innocuous on its face is passed on

extraneous consideration then the court is competent to go

into the matter to find out the real foundation of transfer. The

court is competent to ascertain whether the order of transfer

passed is bonafide or as a measure of punishment.

10. The law regarding interference by Court in

transfer/posting of an employee, as observed above, is well

settled and came up before the Hon’ble Supreme Court in

U.O.I and Ors. vs. S.L. Abbas (1993) 4 SCC 357 , Mrs.

Shilpi Bose and Ors. vs. State of Bihar and Ors., AIR

1991 SC 532 , State of Uttar Pradesh & Ors. vs.

Gobardhan Lal, (2004) 11 SCC 402 , State of Madhya

Pradesh & Anr. vs. S. S. Kourav & Ors., AIR 1995 SC

1056, M. Sankaranarayanan, IAS vs. State of Karnataka

& Ors., AIR 1993 SC 763 , N. K. Singh vs. Union of India

and Ors., AIR 1995 SC 423 and Airports Authority of

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High Court of H.P.India vs. Rajeev Ratan Pandey 2009 (8) SCC 337 , and the

conclusion may be summarised as under:-

“1. Transfer is a condition of service.

2. It does not adversely affect the status or

emoluments or seniority of the employee.

3. The employee has no vested right to get a posting

at a particular place or choose to serve at a

particular place for a particular time.

4. It is within the exclusive domain of the employer to

determine as to at what place and for how long the

services of a particular employee are required.

5. Transfer order should be passed in public interest or

administrative exigency, and not arbitrarily or for

extraneous consideration or for victimization of the

employee nor it should be passed under political

pressure.

6. There is a very little scope of judicial review by

Courts/Tribunals against the transfer order and the

same is restricted only if the transfer order is found

to be in contravention of the statutory Rules or

malafides are established.

7. In case of malafides, the employee has to make

specific averments and should prove the same by

adducing impeccable evidence.

8. The person against whom allegations of malafide is

made should be impleaded as a party by name.

9. Transfer policy or guidelines issued by the State or

employer does not have any statutory force as it

merely provides for guidelines for the understanding

of the Department personnel.

10. The Court does not have the power to annul the

transfer order only on the ground that it will cause

personal inconvenience to the employee, his family

members and children, as consideration of these

views fall within the exclusive domain of the

employer.

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High Court of H.P.11. If the transfer order is made in mid-academic session

of the children of the employee, the Court/Tribunal

cannot interfere. It is for the employer to consider

such a personal grievance.”

11. However, the moot question poised in the instant

petition is the scope of writ petition where the orders of

transfer are proposed/generated by the Member of Parliament

(MP) of the concerned Constituency, giving a written

recommendation and thereafter the same gets implemented

through the Hon’ble Chief Minister, leaving virtually little or no

scope for any discretion or taking any independent decision

for the administrative department.

12. Adverting to the facts of the case, it would be

noticed from the perusal of record that the Member of

Parliament (Rajya Sabha) addressed a letter undated to the

Hon’ble Chief Minister, recommending the transfer of private

respondent in place of the petitioner and vice-versa in

condonation of short stay. The recommendations were sent by

the Special Secretary to the Hon’ble Chief Minister to the

Department by U.O. Note dated 03.02.2021 by treating the

same to be the approval of the Hon’ble Chief Minister.

However, it was recorded in the department file that the

petitioner is working as Superintending Engineer (Electrical) in

the office of SE (OP) Circle HPSEBL, Kangra w.e.f. 07.06.2019

and has not completed his normal stay there and respondent

No. 3, who is working as Superintending Engineer (Electrical)

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High Court of H.P.in the office of SE (Electrical) Circle BVPCL Jogindernagar w.e.f.

14.12.2000, has completed only three months and the matter

was accordingly put up for consideration.

13. Accordingly, the respondent-department made an

administrative proposal, which is as under:-

“Administrative Proposal

As per col No. 4 above both the aforesaid

officers are in short stay in the respective offices. They

can only be transferred on vice-versa basis, if the

condition of short stay & less than one year stay &

home Circle condition of Er. Ajay Gautam, SE (E) is

relaxed by the Hon’ble Chief Minister in his case.

The above proposal is submitted for the kind

consideration/approval of the Hon’ble Chief Minister

please.”

14. The matter was thereafter placed before the

Director (personnels), who appended the following note:-

“Besides above BVPCL too is important, frequent shifts

of SE may not be prudent.”

15. The matter was thereafter placed before the

Managing Director, who appended the following note:-

“The transfer will have an impact on the rehabilitation.

May kindly pend for time being.”

16. The proposal was then placed before the Hon’ble

Minister concerned, who appended the following note:-

“Home circle relaxed. May be implemented after 31

st

March, 2021.”

17. It is more than settled that an elected

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High Court of H.P.representative can only propose the transfer of an employee,

that too for genuine and cogent reasons and not by usurping

the authority of the administrative department, who alone is

competent to issue the orders of transfer after due application

of mind. Obviously, the administrative department in such

circumstances, had no choice whatsoever, but to implement

the recommendations made by the MP concerned as approved

aforesaid.

18. About four decades back, a learned Division

Bench of this Court in Ram Krishan vs. District Education

Officer, ILR HP 1979 8 HIM 481, observed as under:-

“8. We hereby record our strong disapproval of such type

of interference from outsiders in day today

administration of the State. If such interference is to

be allowed, it would only mean that the government

servants should run after those who are taking part

in public life and in politics for getting better terms

of service and a better place for their postings, and

should do everything to please them and not to

please the department by their ability, honesty and

integrity. It need not be emphasized that such

interference of outsiders in day-to-day

administration of the State is highly detrimental to

the public interest as it would result in nepotism and

corruption wherein only those who can wield

influence and purse, can succeed. Therefore, we

want by this judgment to bring it to the notice of all

concerned that sooner this type of interference is

discouraged and stopped, the better for the

administration and the people of this State.”

19. In A.K. Vasudeva vs. State of H.P. and others,

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High Court of H.P.ILR (Himachal Series) (1981) 10 HIM 359 , this court while

dealing with a case in which the transfer of a teacher had

been made at the behest of a Member of the Legislative

Assembly held as follows:-

“21. The practice of effecting transfers of teachers at the

behest of every M.L.A. and other influential persons

seems to be rampant in the department of Education

in the State. The record is full of it. Indeed when the

transfer proposals are prepared there is a column

No. 8 which is to show “recommended / proposed

by”. I find that a transfer as been made even at the

instance of the President Youth Congress (I) Subathu

of a teacher Alaxender from Kanda to Subathu. It

appears that no transfer is made except at the

instance of somebody. Why was Shri Chaman Lal

reluctant to admit his role, and why did he depose

that he had nothing to do with the posting and

transfer of any teacher? I had expected him to come

out openly and frankly. He is not only a member of

the Legislative Assembly but at the moment owns a

responsible position as Chairman of a public

corporation.”

20. Thereafter, referring to the judgment in Ram

Krishan’s case (supra), this court went on to hold as follows:-

“28. It is unfortunate indeed that despite the

aforementioned pronouncement by this Court the

malady of the politicians interfering in the

administration of the Education Department is as

rampant as before, if not worse. Apparently no one is

bothered about any discipline in this department and

the teachers and others are perhaps encouraged by

this method to be beholden to the political persons

instead of relying on the honesty and the integrity of

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High Court of H.P.the Director of Education and other officers for

administering the department and ordering

transfers.”

21. In Sant Ram Pant vs. State of H.P. and

others, 2009 (3) Shim. L.C. 206 , a Division Bench of this

Court held as follows:-

“8. When transfers are made, an employee may be

aggrieved by his transfer. An employee has a right to

make a representation against such transfer. It is

also the right of the employer, including the State, to

look into the grievances of the employees and if the

grievance made by the employee is found to be

genuine, the State is well within its right to redress

the grievance of the employee and cancel the order

of transfer. However, the grounds for passing an

order of cancellation within two weeks of the original

order must be borne out from some material on the

record. In the present case, despite two

opportunities being given the State has not produced

any representation made by the respondent No. 3 or

any other communication addressed to the office of

the Hon'ble Chief Minister on behalf of the

respondent No.3 which would justify the issuance of

the note dated 1.1.2009.”

22. In CWP No.1105 of 2006, titled Sushila

Sharma vs. State of H.P and others , this court has held as

follows:-

“We, however, direct that a copy of this judgment be

sent to the Chief Secretary to the Govt. of H.P., who

shall ensure that a proper transfer policy is

formulated to ensure that the transfers are made

only on administrative grounds and not on any

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High Court of H.P.others grounds. In the policy to be framed, it shall be

ensured that all the employees are treated fairly and

equally and every employee during his tenure of

service serves in tribal/ hard areas and also in

remote/rural areas. When transfers are made, the

administrative department shall ensure that the

employees who have already served in tribal/hard

areas as well as remote/ rural areas are not again

sent to these areas and there is a continuous

process of change whereby all the employees have a

chance to serve in tribal/hard areas as well as

remote/rural areas. In the policy so framed, It should

also be ensured that the transfer orders are not

cancelled without making reference to the

administrative department to put forth its views. In

the policy, measures shall be provided to ensure that

employees (obviously influential) who have managed

to remain posted in the urban areas/cities are posted

to rural/remote areas and hard/tribal areas in the

transfer season when the transfers are made. The

transfer policy should also ensure that people, who

are posted in remote/rural areas, join their place of

postings and do not manage to get their transfers

cancelled on frivolous grounds as has happened in

the present case. The policy be framed and filed in

Court within two months from today.” Consequent to

these directions, a policy was framed, but has been

observed more in breach.”

23. In CWP No.2844 of 2010, titled Pratap Singh

Chauhan vs. State of H.P. & others, decided on 18.6.2011,

a learned Single Judge of this court after considering various

judgments of Hon’ble Supreme Court held as follows:-

“10.We are governed by the Constitution of India. As per

the constitutional scheme there are three pillars of

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High Court of H.P.democracy; the Legislature; the Judiciary and the

Executive. Each has to work in its own sphere. This is

a system of checks and balances where each can

check the other, but it must be clearly understood

that none of the three organs can encroach upon the

jurisdiction of the other. The jurisdiction vested in

this Court under Article 226 of the Constitution of

India is indeed very wide. Wider the jurisdiction,

more care should be taken to exercise it with greater

discretion, so that questions are not raised about the

functioning of the Judiciary. The Apex Court has in no

uncertain terms laid down a note of caution that

Courts should not interfere in transfer matters

except on very strong grounds.

11.Having held so, this Court is also not oblivious to the

factual position which exists on the spot and the

situation is that day in and day out this Court is

flooded with writ petitions in which employees

challenge the order of their transfer on various

grounds. On more than one occasion this Court has

found that there are notes sent by public

representatives such as Members of the Legislative

Assembly recommending the transfers. No doubt,

public representatives have a right to make

recommendations, but these can only be

recommendations and cannot be taken to be the

final word.”

24. In CWP No.3530 of 2011, titled Babita Thakur

vs. State of H.P. and others, a learned Single Judge of this

court held as follows:-

“9. It is true that it is for the employer to see where the

Government servant is to be posted. However, it is

equally true that there is no arbitrariness in the

action. The transfer cannot be used as an instrument

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High Court of H.P.to accommodate/ adjust the persons without there

being any administrative exigency. The underline

principle for transfer is public interest or

administrative exigency. In the instant case, neither

there was any public interest nor any administrative

exigency necessitating the transfer of the petitioner

from government Primary School, Chadyara (Sadar)

to Government Primary School, Khanyari

(Chachoit1).”

25. The treatise on the subject is the judgment

rendered by learned Division Bench of this Court in Amir

Chand versus State of Himachal Pradesh, 2013(2) HLR

(DB) 648, wherein the learned Division Bench of this Court

commenced the judgment with the following observations:-

“1.This Court is flooded with litigation filed by

employees aggrieved by their transfer and

sometimes, even by their non-transfer when they are

not shifted out of tribal areas. The time has come

when we must lay down the law with regard to the

powers of the legislators to influence transfers.

Should political pressure and political influence be

necessary to run the administration? Should

transfers be ordered on the asking of the legislators,

members of a particular ruling party, persons

belonging to certain groups without even making a

reference to the administrative department

concerned? Is the policy of transfer always binding

upon the Government and its employees or can the

Government flout with impunity the policy framed by

it? No doubt, the employer is the master and can

decide which employee is to be posted at which

particular place, but we must remember that we are

governed by the Constitution of India. Does not each

and every employee have a right to claim that he

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High Court of H.P.should be treated fairly? Why is it that favoured

employees, who are either well connected or can

exercise political or bureaucratic clout are never

transferred out of the main cities and those

employees who do not enjoy such political or

bureaucratic patronage have to stay in remote/tribal

areas for years on end.

2.Another disturbing feature which we have found is

that in the State of Himachal Pradesh after the

period earmarked for normal transfers is over, the

transfers have to be ordered only after approval of

the competent authority which normally is the

Hon'ble Chief Minister. We have found that people

directly approach the Hon'ble Chief Minister using

political influence and patronage without first

making a representation to the department

concerned. This is a total violation of the Conduct

Rules. Despite this violation of the Conduct Rules,

these requests of the employees who are backed by

political patronage are accepted without even

considering what will be the effect of such transfers

on the people who are to be served by these

employees, or on those employees who may be

affected by such transfers.

3. Does anybody care about the students who are

studying in the schools? If no teacher is willing to go

to the rural/remote areas, where will the students of

these rural and remote areas study? Does anybody

care in some remote areas, dispensaries are without

Doctors or paramedical staff whereas there is more

than the sanctioned number of doctors in the State

and District headquarters. It was only after the

intervention of the Court that the Female Health

Workers, who were to serve in the rural areas, were

actually transferred there. Almost all the Female

Health Workers had been adjusted in Shimla town

itself. This shows that neither the interest of the

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High Court of H.P.public at large nor that of the administration was

kept in view while adjusting these Female Health

Workers at Shimla. When the employees want a job

then they are willing to join at any place. However,

soon thereafter, political patronage is employed to

get themselves transferred to a particular place.

There is more than sufficient material before the

Courts to prove that transfers are made for

extraneous reasons without considering the

administrative exigencies and the interests of the

students.

4. This does not speak well of the system of the

administration. We are clearly of the view that

normally we would not like to interfere in transfer

orders passed in administrative interests. We are

also of the considered view that all the employees,

such as teachers, doctors, nurses etc., will

necessarily have to be posted in rural/remote area at

some stage in their careers. The administration has

to be stern and strict in matters of transfers. At the

same time, it also has to be fair and just and should

treat all the employees equally. It is only because the

administration itself is lax and transfer orders are

passed on extraneous considerations and the

administration reverses its decisions day in and day

out, that the courts are forced to intervene. These

types of cases clearly highlight the fact that

transfers are being made not on the basis of

administrative exigencies but on other extraneous

considerations.

5. Rule 20 of the Central Civil Services (Conduct) Rules,

1964 lays down that it will be misconduct for an

employee to bring in political pressure or get

recommendations from others in matters relating to

his service. It seems that both, the administration as

well as the employees, have forgotten that such a

rule exits. Our experience is that unless an employee

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High Court of H.P.gets a “suitable recommendation” or brings in

political pressure, he can never get posted to a

station of his choice. If action is taken against the

employee for breach of the Conduct Rules, the

employee could very well say that he is damned if he

does not use political pressure and damned if he

does.

6. It would be apposite to quote a humorous poem from

Shri A.S Bhatnagar's Commentary on Conduct Rules.

‘Ban on recommendation’, a humorous poem -Who

am I? A victim to the jealousies of those Who, to me

have been quite close, Suspended from work And,

for no fault of mine. Oh Justice, what a heavy fine ! I

am expected not to seek Help from one mighty or

weak. They name it pressure or canvassing, A fruit

from the Forbidden Tree. Which to touch none is free.

Is this bar justified, When there are cases multiplied,

Where in favours have been done, And ends foul

have been badly won?”

26. It was further observed that there can be no

manner of doubt that a legislator, who is the elected

representative of the people, has a right to place his

difficulties before the Hon’ble Chief Minister or the Minister

concerned. It would be well within his rights to complain to

the authorities concerned in case he finds that a particular

employee is not doing his job properly. The Court further went

to observe that transfer is never meant to be a punishment

but nobody can deny the fact that many times incompetent

and inconvenient officials are transferred.

27. The Court then discussed the judgments of the

various High Courts including the one referred to above and

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High Court of H.P.observed as under:-

“33. From the files which this Court has seen including

the files of these cases, it is apparent that transfers

are being made day in and day out at the behest of

public representatives. It is true that public

representatives have a right to complain against the

working of government officials. However, these

complaints must be verified by the administrative

department and final action has to be taken by the

administrative department. Transfer is not a

punishment and if transfer is inflicted as a means of

punishment, then the whole purpose of making

transfers in the public interest is set at naught. An

employee who is rude or inefficient at one station

will not become polite or efficient at another station.

Transfer does not serve any purpose. If the

allegations of the public representatives made in the

complaints against the government servants are

found to be correct, then disciplinary action should

be taken against such government employees. We

live in a democracy and our elected representatives

under the constitution are to work in the legislature

and not as administrators. They cannot start

interfering in the administration or the working of

the Executive. This has already resulted in

government servants rushing to please the political

masters at the cost of doing their duties. This also

demoralizes the officers who are in charge of the

administration of the department. It is they who are

the best judges to decide how the department has to

be administered and which employee should be

transferred to which place. The politicians cannot

don the role of administrators. The earlier such

inherently illegal and improper practices are put to

an end, the better it would be for the smooth

functioning of the administration of the State.

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High Court of H.P.34. As far as the concept of judicial review is concerned,

the Apex Court again observed that the Court should

be reluctant in interfering in transfer orders. The

scope of judicial review in the matter of transfer of a

Government employee is limited and the Court

should not interfere in the transfer. The Court cannot

substitute its own opinion for the opinion of the

employee.

35. After reviewing the entire law on the subject, we can

without any hesitation come to the conclusion that

the scope of judicial review in transfer matters is

very limited. This court cannot interfere in the day to

day functioning of the Government departments and

it is for the administrative heads to decide which

employee should be posted at which place. Even

earlier, we had clearly given a number of judgments

on these lines.

36. At the same time, this Court cannot shut its eyes to

the increasing number of transfers being made not

for administrative reasons but only with a view to

accommodate favoured employees. As indicated by

us earlier, an employee of the department is also a

citizen of the country and is entitled to the equal

protection of laws. Therefore, the State should

always be fair to its employees. They must all be

treated equally.”

28. It is then that the following directions came to be

passed:-

“1. The State must amend its transfer policy and

categorize all the stations in the State under

different categories. At present, there are only two

categories, i.e. tribal/ hard areas and other areas. We

have increasingly found that people who are sent to

the hard/ tribal areas find it very difficult to come

back because whenever a person is posted there, he

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High Court of H.P.first manages to get orders staying his transfer by

approaching the political bosses and sometimes

even from the Courts. Why should the poor people of

such areas suffer on this count. We are, therefore, of

the view that the Government should categorize all

the stations in the State in at least four or five

categories, i.e. A, B, C, D and E also, if the State so

requires. The most easy stations, i.e. urban areas

like Shimla, Dharamshala, Mandi etc. may fall in

category A and the lowest category will be of the

must difficult stations in the remote corners of the

State such as Pangi, Dodra Kawar, Kaza etc. At the

same time, the home town or area adjoining to home

town of the employee, regardless of its category,

otherwise can be treated as category A or at least in

a category higher than its actual category in which

the employee would normally fall. For example, if an

employee belongs to Ghumarwin, which is

categorized in category B, then if the employee is

serving in and around Ghumarwin, he will be

deemed to be in Category A.

2. After the stations have been categorized, a database

must be maintained of all the employees in different

departments as to in which category of station(s) a

particular employee has served throughout his

career. An effort should be made to ensure that

every employee serves in every category of stations.

Supposing the State decides to have four categories,

i.e. A, B, C, D, then an employee should be posted

from category A to any of the other three categories,

but should not be again transferred to category A

station. If after category A he is transferred to

category D station, then his next posting must be in

category B or C. In case such a policy is followed,

there will be no scope for adjusting the favourites

and all employees will be treated equally and there

will be no heart burning between the employees.

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High Court of H.P.3. We make it clear that in certain hard cases, keeping

in view the problems of a particular employee, an

exception can be made but whenever such exception

is made, a reasoned order must be passed why

policy is not being followed.

4. Coming to the issue of political patronage. On the

basis of the judgments cited hereinabove, there can

be no manner of doubt that the elected

representative do have a right to complain about the

working of an official, but once such a complaint is

made, then it must be sent to the head of the

administrative department, who should verify the

complaint and if the complaint is found to be true,

then alone can the employee be transferred.

5. We are, however, of the view that the elected

representative cannot have a right to claim that a

particular employee should be posted at a particular

station. This choice has to be made by the

administrative head, i.e. the Executive and not by

the legislators. Where an employee is to be posted

must be decided by the administration. It is for the

officers to show their independence by ensuring that

they do not order transfers merely on the asking of

an MLA or Minister. They can always send back a

proposal showing why the same cannot be accepted.

6. We, therefore, direct that whenever any transfer is

ordered not by the departments, but on the

recommendations of a Minster or MLA, then before

ordering the transfer, views of the administrative

department must be ascertained. Only after

ascertaining the views of the administrative

department, the transfer may be ordered if approved

by the administrative department.

7. No transfer should be ordered at the behest of party

workers or others who have no connection either

with the legislature or the executive. These persons

have no right to recommend that an employee

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High Court of H.P.should be posted at a particular place. In case they

want to complain about the functioning of the

employees then the complaint must be made to the

Minister In charge and/ or the Head of the

Department. Only after the complaint is verified

should action be taken. We, however, reiterate that

no transfer should be made at the behest of party

workers.”

29. Yet again the issue of transfer at the instance of

elected representatives came for consideration before the

learned Division Bench of this Court in Sanjay Kumar vs.

State of H.P. and Ors., Latest HLJ 2013 (HP) 1051,

wherein it was observed that it is the head of Administrative

Department who alone has jurisdiction to transfer the

employee that too on the basis of subjective satisfaction. The

authority making the transfer is to be guided by transfer

policy in vogue.

30. It shall be apposite to refer para-23 of the

judgment, which reads as under:-

“23. Indeed, the Head of Administrative Department has

jurisdiction to transfer employees on the basis of his

subjective satisfaction. The authority making the

transfer is to be guided by transfer policy in vogue.”

31. Similar issue thereafter came up before the

learned Division Bench of this Court in Raj Kumar vs. State

of H.P. and Ors., 2015 (1) Him. L.R. (DB) 567 and after

placing reliance on the judgment Sanjay Kumar’s case (supra),

this Court observed as under:-

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High Court of H.P.“21. Tested on the touchstone of aforesaid exposition of

law, it can safely be concluded that the transfer of

the petitioner cannot withstand judicial scrutiny as

the basis and foundation of the transfer happens to

be the various complaints made by the public

representatives against the petitioner. The transfer

has been made on the basis of the U.O. note issued

by the office of Hon’ble Chief Minister and whereas,

no proposal for transfer has been originated from the

concerned administrative department. The

impugned transfer order, therefore, is not

sustainable being arbitrary and vitiated because the

same has been issued under dictation.

32. Lastly, it was observed in para–28 of the

judgment, which reads as under:-

“28. This case reflects a dismal state of affairs

where despite repeated directions passed by this

court from time to time over the last three and half

decades, the respondents have shown scant regard

to such directions and have not cared to follow the

mandate of law in matters of transfer. This court has

repeatedly held that any person has a right to make

a complaint against an employee regarding his

conduct to his superiors including the Hon’ble Chief

Minister and even request for his transfer. It is,

however, only for the competent authority i.e.

administrative department to consider the request

and take appropriate action in accordance with law.

But when the administrative authorities do not

perform their duties and resultantly fair play is

denied by the administrative authorities, people turn

up to the courts complaining of such blatant case of

administrative excess compelling the courts to

intervene in such matter. Once the State

government has framed a transfer policy, then it is

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High Court of H.P.its duty to implement the same because the very

purpose of framing a policy is to strike a balance

between the rights of the employees and the State

in matters relating to transfer so that the same is not

misused.”

Despite the aforesaid directions, the things have

really not improved.

33. As already observed above, the Chief Minister and

Ministers/elected representatives may recommend the

transfer of an employee as has already been held by this

Court in Sanjay Kumar and Amir Chand’s cases (supra) ,

however, the transfer orders are ultimately to be issued by

the Administrative head after independent application of mind

that too after subjective satisfaction without being influenced

by the recommendations so made by the elected

representatives.

34. In the instant case, there was no independent

decision taken by the Administrative Head rather there was no

scope left for the said purpose and, therefore, the decision

has been rendered vulnerable as being influenced by the

proposal and recommendations made by the MP concerned.

35. As observed by this Court, the Members of the

Parliament/Legislative Assembly or the Minister concerned

have right to make recommendations, but these

recommendations cannot be taken to be the final word. The

underline principle for transfer is public interest or

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High Court of H.P.administrative exigency, which is conspicuously absent in the

present case.

36. As held by this Court in Amir Chand’s case

(supra), we live in a democracy and our elected

representatives under the Constitution are to work in the

legislature and not as administrators. They cannot start

interfering in the administration or the working of the

Executive. It is they (Administrative Heads) who are the best

judges to decide how the department has to be administered

and which employee should be transferred to which place.

The politicians cannot don the role of administration.

37. It was further held that the elected

representatives cannot have a right to claim that a particular

employee should be posted at a particular station. The choice

has to be made by administrative head i.e. Executive and not

by the legislators. Where an employee is to be posted must be

decided by the administration. It is for the officers to show

their independence by ensuring that they do not order

transfers merely on the asking of an MP/MLA or Minister. They

can always send back a proposal showing why the same

cannot be accepted.

38. Lastly, it is held that whenever any transfer is

ordered not by the departments but on the recommendations

of a Minister or MP/MLA, then before ordering the transfer, the

views of the administrative department must be ascertained

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High Court of H.P.and only after ascertaining the views of the administrative

department, the transfer may be ordered if approved by the

administrative department, meaning thereby the views of the

administrative department have essentially to be sought in

the matters of transfer. What follows is that the views of the

administrative department must reflect subjective satisfaction

and conscious application of mind that the transfer is

essential on account of administrative exigency and/or public

interest or that the transfer of employee is necessary for the

effective utilization of his/her services.

39. Now picking the thread of discussion left behind

from para 16 of this judgment, we may observe that the

administrative department of its own has neither mooted the

proposal of transfer nor was in favour of transfer either the

petitioner or the private respondent. The entire exercise

undertaken by the department was only to honour the U.O.

note sent by the office of the Chief Minister based upon the

D.O. note of the Member of Parliament.

40. Once the administrative department was not in

favour of transfer, then obviously the same could not have

been given effect to only on the basis of the D. O. note.

41. Moreover, the transfer of the petitioner is in

contravention of the instructions issued by the Government

on 19.11.2020 (supra), as the transfer does not fall in any one

of the eventuality as contemplated in para-3 of the

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High Court of H.P.instructions.

42. Lastly and more importantly, the transfer of the

private respondent cannot be sustained as he has been

ordered to be posted in his home Division, which is contrary to

the Transfer Policy.

43. The learned counsel for the respondent-Board as

also private respondent are at pain to point out that as per the

Transfer Policy framed by the respondent-Board, the Board is

competent to relax any of the conditions of transfer and would

place strong reliance on note appearing below in Clause 23 of

the Transfer Policy, which reads as under:-

“23. …….Notwithstanding above condition/guidelines,

any officer/official may be transferred on administrative

ground/public interest/exigencies of Board work. The

existing standing orders, if in contravention of above

shall stand amended accordingly.”

44. in light of the above conditions/guidelines, any

officer/official may be transferred on account of

administrative ground/public interest or exigency of service.

The existing standing order, if in contravention of above, shall

stand amended accordingly.

45. We really do not find any merit in this contention

as the power to relax can be exercised only if it has effected

on administrative ground/public interest or exigency of

service. This is not the fact situation obtaining in the instant

case as the orders of transfer have been passed only to

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High Court of H.P.accommodate the private respondent that too on the basis of

the representation that was made by him to the Member of

Parliament.

46. That apart, it is more than settled that the power

to relax a provision/requirement of law can be made only on

the satisfaction of the competent authority and such

satisfaction is not subjective satisfaction, but must be based

on objective consideration of the material placed before the

competent authority and has to be reflected in the order itself.

Whereas in the instant case, there is no such satisfaction

recorded by the authority concerned as is evident from what

has been observed in para 16 of this judgment (supra).

47. In such circumstances, the order of transfer

cannot withstand judicial scrutiny as it has not been passed

on account of administrative ground/public interest or

exigency of service. Moreover, the transfer has not been

effected for utilisation of the services of the petitioner as he

has been transferred merely on the basis of the

recommendations made by the political executive.

48. In the given facts and circumstances of the case,

the action of the respondents cannot be countenanced and

sustained. Accordingly, order of transfer dated 05.04.2021

(Annexure P-1), whereby the petitioner has been ordered to

be transferred from the office of SE (OP) Circle HPSEBL,

Kangra to the office of SE (Elect.) Circle BVPCL Jogindernagar,

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High Court of H.P.is quashed and set aside. The parties are left to bear their

own costs.

49. With these observations, the writ petition is

disposed of, so also pending miscellaneous application(s), if

any.

(Tarlok Singh Chauhan)

Judge

(Chander Bhusan Barowalia)

4

th

May, 2021 Judge

(Sanjeev)

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