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

CWP No. 511 of 2020

Reserved on: 18.08.2020

Decided on: 26.08.2020

Sheela Suryavanshi …Petitioner

Versus

State of H.P. & Ors. …Respondents

Coram:

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

Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?

1 Yes.

For the Petitioner : Mr. Ram Murti Bisht, Advocate.

For the Respondents : Mr. Ashok Sharma, Advocate General

with Mr. Ranjan & Mr. Vinod Thakur, Addl.

A.Gs. and Ms. Svaneel Jaswal, Dy.A.G.,

for respondents No. 1 and 2-State.

Mr. Vinod Chauhan, Advocate, for

respondent No. 3.

Tarlok Singh Chauhan, Judge

The petitioner is a Lecturer (English), who joined

Government Senior Secondary School, Sanjauli, on 16.08.2017 and

was thereafter ordered to be transferred vice private respondent

vide order dated 23.01.2020 and aggrieved thereby has filed the

instant petition for the grant of following substantive relief:-

(i)That the impugned transfer order dated 23.01.2020

(Annexure P-1) may kindly be quashed and set aside.

1

Whether reporters of the local papers may be allowed to see the judgment? yes

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2. It is argued by Shri Ram Murti Bisht, learned Advocate,

for the petitioner, that the order of transfer is not sustainable, as it

has been passed on extraneous consideration and with malafide

intention to simply adjust private respondent No.3, who at her own

request had been posted at GSSS, Theog in July, 2019 and after

short stay of six month, on 01.01.2020, on the basis of D.O. note

No. 199274, got herself transferred back to GSSS, Sanjauli,

dislodging the petitioner.

3. The stand of the official respondents is that the

petitioner was transferred vice private respondent No. 3, with the

prior approval of the competent authority, on the medical ground of

respondent No. 3, which fact though mentioned in the department

file but could not erroneously be mentioned on the office order dated

23.01.2020.

4. To similar effect is the stand taken by respondent No. 3,

wherein she has highlighted her medical ailment(s).

We have heard learned counsel for the parties and

have gone through the records of the case.

5. In Black’s Law Dictionary ‘malafide’ is said to be an

intentional doing of a wrong act without just cause or excuse, it is

done with an intention to inflict an injury or under such

circumstances that the law will imply an evil motive to the act.

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6. The Hon’ble Supreme Court has considered the

question of malafide in case of transfer and the following principles

are laid down in the case of B. Varadha Rao vs. State of

Karnataka & Others, AIR 1986 SC 1955:

“The Government is the best judge to decide how to distribute

and utilize the services of its employees. 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 consideration or for achieving an alien

purpose or an oblique motive it would amount to malafide and

colourable exercise of power. Frequent transfers, without

sufficient reasons to justify such transfers, cannot but be held

as in fide. A transfer is mala fide when it is made not for

professed purpose, such as in normal course or in public or

administrative interest or in the exigencies of service but for

other purpose than is to accommodate another person for

undisclosed reasons. It is the basic principle of rule of law and

good administration, that even administrative actions should

be just and fair.”

7. Similarly in the case of Mrs. Shilpi Bose and Others

vs. State of Bihar & Others, AIR 1991 SC 532, it is observed by

the Supreme Court as under:-

“In our opinion, the courts should not interfere with a transfer

order which are made in public interest and for administrative

reasons unless the transfer orders are made in violation of any

mandatory statutory rule or on the ground of mala fide. A

Government servant holding a transferable post has no vested

right to remain posted at one place or the other, he is liable to

be transferred from one place to the other. Transfer orders

issued by the competent authority do not violate any of his

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legal rights. Even if a transfer order is passed in violation of

executive instructions or orders, the Courts ordinarily should

not interfere with the order instead affected party should

approach the higher authorities in the department. If the courts

continue to interfere with day-to-day transfer orders issued by

the Government and its subordinate authorities, there will be

complete chaos in the Administrations which would not be

conductive to public interest. The administration which would

not be conducive to public interest. The High Court overlooked

these aspects in interfering with the transfer orders”.

8. Thereafter, in the Case of Rajendra Roy vs. Union of

India and another, AIR 1993 SC 1236, the principle is laid down in

the following manner:-

“It may not be always possible to establish malice in fact in a

straight cut manner. In an appropriate case, it is possible to

draw reasonable inference of malafide action from the

pleadings and antecedent facts and circumstances. But for

such inference there must be firm foundation of facts pleaded

and established. Such inference cannot be drawn on the basis

of insinuation and vague suggestions.”

9. Thus, on malafide, it can be said that the principal test

of a due and proper exercise of the power is to ask the question:

Was the transfer made for real administrative exigency? In finding

the answer the Court might have to pierce the veil of the transfer

order and see what was the operative reason for the transfer. If the

findings reveal a nexus with administrative necessity, the exercise of

the power will be upheld. If however, the operative reason has no

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such nexus then the transfer will be vulnerable. In the latter case it

will be a malafide use of power and will take within its sweep all

situations where the nexus and administrative exigencies is absent.

It needs to be emphasised that in the present context malafide is not

limited to the personal malice of the authority making the transfer.

Malafide has two components i.e. malice in law and malice in fact.

10. It may be stated here that if the transfers are made in

order to adjust particular persons with no reasonable basis, such

type of transfers can be termed as malafide one and would normally

be liable to be quashed.

11. On the basis of the aforesaid exposition of law, it can

conveniently be held that transfer in the instant case has not been

made on administrative exigency but to adjust and accommodate

respondent No. 3.

12. Record reveals that it was respondent No. 3, who vide

letter dated 06.01.2020, addressed to the Education Minister,

requested for her transfer on medical grounds as enumerated in

letter, which is as under:-

To

The Hon’ble Education Minister,

Himachal Pradesh, Shimla-2.

Sub:Request for transfer on medical grounds

R/Sir,

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With due respect and humble submission, I beg to lay

down following few lines for your kind and sympathetic

consideration please:

1. That presently I am working as PGT (English) in

Govt. Girls Sr. Secondary School, Theog Distt. Shimla (HP) from

July, 2019.

2. That I am suffering from Paralytic problems

(brain strokes in Dec. 2018) (copy of prescription slip is

enclosed) and since then under treatment in IGMC Shimla and

it is very difficult for me to commute between Theog & Shimla

daily due to my above problem.

So, it is humbly requested, I may please be

transferred on medical grounds from Govt. Girls Sr. Secondary

School Theog to Govt. Sr. Secondary School Sanjauli vice

Smt. Sheela Suryavanshi, PGT (English). My short stay at

GSSS Theog may kindly be condoned please.

13. The medical prescription slip annexed with this

application , in fact, is an OPD slip in which it was only mentioned

that this is a case of post circulation stroke and the B.P. of the

petitioner has been recorded alongwith the details of the medicines.

Even after that respondent No. 3 procured another D.O. note on the

basis of which she got herself transferred to GSSS Sanjauli.

14. No doubt, respondent No. 3 was entitled to set-forth her

grievance including the medical problems to her higher authorities

and seek transfer and it was for the authorities, in turn, to accede or

not to such request, but under no circumstances, respondent No. 3

could have exercised external influence to have transfer effected.

15. Now, the further question is whether request made by

respondent No. 3 in the aforesaid letter was genuine and bonafide.

We really do not think so.

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16. The record reveals that even though respondent No. 3

did suffer a paralytic (brain stroke) in 2018, but then it was on her

request that she subsequently came to be transferred on mutual

basis to GSSS Theog, where she remained posted from July, 2019

till the passing of the impugned transfer order. The request for

transfer on mutual basis was probably made to take advantage

under the policy of the transfer.

17. In Rajendra Roy vs. Union of India and Anr. 1993 SC

1236, the Apex Court held that “It is true that the order of transfer

often causes a lot of difficulties and dislocation in the family set up of

the concerned employees but on that score the order of transfer is

not liable to be struck down.

18. Off late, this Court has seen a surge in litigation relating

to transfer. The State of Himachal unlike other States is not evenly

or uniformly developed in matters of basic infrastructure like

education, health services etc. It is for this reason and rightly so that

every employee tries to make an endeavour to seek posting in the

district or tehsil headquarters where the infrastructure is relatively

well developed. This we observe on the basis of the statistics

relating to Shimla alone, where floating population is equal to

permanent population. Most of these migration in urban areas is

directly related with education of children and thereafter it could be

for other purposes like better health facilities etc.

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19. We further notice that because of cartel created by few

of the employees serving in the urban and semi urban areas of

Himachal Pradesh, the influential employees manage to secure their

postings in and around urban areas, leaving practically no room for

the other employees.

20. The instant case is one such classical example, which

reflects the modus operandi being resorted to by these teachers on

completion of their tenure by seeking mutual transfer or creating

artificial vacancies and thereafter getting each one adjusted in such

vacancies.

21. It cannot be ignored that not only the State or Country

but the whole world is in the grip of pandemic COVID-19, because

of which students cannot be taught physically in the class rooms

and are being taught through online classes.

22. In such circumstances, the respondents are not only

duty bound but are mandated by law to ensure that no monopoly in

the matters of transfers is created in favour of selected fews but an

endeavour has to be made to accommodate maximum number of

teachers whose children are appearing for the board examination or

examination for professional courses. These students can only

study and attend classes on line if there is adequate and desired

band-width. Even otherwise the facilities of tuition and coaching

classes on online are mainly available in these places i.e. the

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district and tehsil headquarters, therefore, also the State is required

to adopt a fair and transparent policy of transfer by calling for the

details of all the teachers whose children are to appear in the Board

exam or examination for professional courses like MBBS, AIEEE

etc. This would not only bring about an end to the monopoly created

in favour of few teachers but would also ensure benefit to the

student community as a whole.

23. The Central Government, State Governments and

likewise all public sector undertakings are expected to function like a

‘model employer’. A model employer is under an obligation to

conduct itself with high probity and expected condour and the

employer, who is duty bound to act as a model employer has

obligation to treat its employees equally and in appropriate manner

so that the employees are not condemned to feel totally subservient

to the situation. A model employer should not exploit the employees

and take advantage of their helpless and misery.

24. The action of the State must be reasonable, fair, just

and transparent and not arbitrary, fanciful or unjust. The right of fair

treatment is an essential ingredient of justice. Exercise of unbridled

and uncanalised discretionary power impinges upon the right of the

citizen; vesting of discretion is no wrong provided it is exercised

purposively judiciously and without prejudice. Wider the discretion,

the greater the chances of abuse. Absolute discretion is destructive

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of freedom, than of man’s other inventions. Absolute discretion

marks the beginning of the end of the liberty.

25. It was observed by Wades Administrative Laws, 5

th

Edition at page 347 that “The first requirement is the recognition

that all powers have legal limits, the next requirement, no less vital,

is that the Court should draw this limit in a way which strikes the

most suitable balance between executive efficiency and legal

protection of the citizen. Parliament consistently confers upon public

authorities powers which on their face seem absolute and arbitrary.

But arbitrary power and unfettered discretion are what the Courts

refuse to countenance. They have woven a net-work of restrictive

principles which require statutory powers to be reasonable and in

good faith and in accordance with the spirit and letter of the

empowering Act.” At page 359, it was also observed that “Discretion

of a statutory body is never unfettered. It is a discretion which is to

be exercised according to law. That amounts at least to this that the

statutory body must be guided by relevant consideration and not

irrelevant. If its decision is influenced by extraneous consideration

which ought not have taken into account, then the decision cannot

stand. No matter that the statutory body may have acted in good

faith, nevertheless, the decision will be set-aside.”

26. Here, it shall be apposite to make a reference to the

judgment of the Hon’ble Supreme Court in New India Public

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School vs. Huda (1996) 5 SCC 510, wherein it was observed that

when public authority discharges its public duty, it has to be

consistent with the public purpose and clear and unequivocal

guidelines or rules are necessary and the same cannot be acted at

the whim and fancy of the public authorities or under their garb or

cloak for any extraneous consideration.

27. The concept of reasonableness and non-arbitrariness

pervades the entire constitutional spectrum and is a golden thread

which runs through the whole fabric of the Constitution. Thus, Article

14 read with Article 16(1) of the Constitution accords right to an

equality or an equal treatment consistent with principles of natural

justice. Therefore, any law made or action taken by the employer,

corporate statutory or instrumentality under Article 12 must act fairly

and reasonably. Right to fair treatment is an essential inbuilt of

natural justice.

28. As observed above, exercise of unbridled and

uncanalised discretionary power impinges upon the right of the

citizen; vesting of discretion is no wrong provided it is exercised

purposively, judiciously and without prejudice.

29. The main concern of the Court in such matters is to

ensure the Rule of law and to see that the executive acts fairly and

gives a fair deal to its employees consistent with the requirements of

Articles 14 and 16 of the Constitution. It also means that the State

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should not exploit its employees nor should it seek to take

advantage of their helplessness and misery. As is often said, the

State must be a ‘model employer’.

30. In the instant case, the incumbency of the petitioner

and private respondent No. 3 is as under:-

Name: Smt. Sheela Suryavanshi (Petitioner)

Designation: Lecturer (English)

Sr. No.Place of posting Period

1 GSSS Halog Dhami

(SML)

18.07.07 to 09.12.09

(As TGT)

2 GHS Annadale (SML) 10.12.09 to 31.03.13

3 GSSS Halog Dhami

(SML)

01.04.13 to 01.04.16

4 GHS Annadale (SML) 02.04.16 to 09.06.16

5 GSSS Chikhar (SML) 10.06.16 to 27.06.17 on

promotion as Lecturer

6 GSSS(G) Theog (SML)28.06.17 to 16.08.17

7 GSSS Sanjauli (SML)16.08.17 till date

Name: Smt. Rita Chauhan (Respondent No.3)

Designation: Lecturer English

Sr. No.Place of posting Period

1 GSSS Deori Khaneti

(SML)

04.05.02 to 17.07.02

(As TGT)

2 GSSS Matiana (SML) 17.07.02 to 4.11.03

3 GSSS Chotta Shimla

(SML)

04.11.03 to 27.09.06

4 GSSS (B) Theog

(SML)

27.09.06 to 17.08.07

5 GSSS (G) Lakkar

Bazar (SML)

17.08.07 to 02.07.08

6 GSSS Portmore (SML)02.07.08 to 01.09.10

7 GSSS Bisha (SML) 01.09.10 to 03.04.12

8 GSSS Summer Hill

(SML)

03.04.12 to 12.01.15

9 GSSS Baldeyn (SML) 13.01.15 to 31.05.16

10 GSSS Bhararia (SML)01.06.16 to 27.03.17

(On promotion as

Lecturer)

11 GSSS Sanjauli (SML)27.03.17 to 24.07.19

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12 GSSS (G) Theog

(SML)

24.07.19 to 24.01.20

13 GSSS Sanjauli (SML)24.01.2020 till date

31. It is not in dispute that the petitioner as also the third

respondent hold a State Cadre Post, yet the petitioner has not been

posted outside the district and has rather served in and around

Shimla within a radius of 35 kms. in her entire service career.

32. The case of respondent No. 3 is also not different, as

she except for a brief period from 01.09.2010 to 03.04.2012 when

she was posted at GSSS, Bisha (Solan), has also remained posted

in and around Shimla and have served within a radius of 47 kms.

out of which 90% of the commutation is on the main National

Highways.

33. Obviously, these postings, both in the case of the

petitioner as also respondent No. 3, could not have been possible

without the active support of the officials respondents.

34. As observed above, there has been a spike in cases

relating to transfer and majority of these cases pertain to the

respondents-department i.e. Education Department. It is for this

precise reason that this Court in CWP No. 1978 of 2019, titled as

Sunita Devi vs. State of H.P. & Ors., decided on 18.03.2020 has

recommended the State Government to implement online transfer in

its Departments, Boards, Corporations etc. having over 500

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employees by framing an online transfer policy on similar line as

that of the adjoining State of Haryana.

35. In conclusion, even though we find the transfer of the

petitioner to be malafide as it has been made in order to adjust the

third respondent with no reasonable basis, but that does not mean

that the petitioner would be entitled to be retained at GSSS Sanjauli.

36. It is a well known adage that “Hard cases make bad

law”.

37. Robert CJ in Caperton vs. A. T. Massey held that

extreme cases often test the bounds of established legal principles.

There is a cost to yield to the desire to correct the extreme case,

rather than adhering to the legal principal. The cost has been

demonstrated so often that it is captured in a legal aphorism “Hard

cases make bad law.”

38. A Writ of Certiorari neither in England nor in India

issues as a matter of course. In A. M. Allison vs. B. L. Sen (S) AIR

1957 SC 227, it was observed as under:-

“Proceedings by way of certiorari are ‘not of

course’. (Vide Halsbury’s ‘Laws of England’, Hailsham

Edition, Vol. 9, paras 1480 and 1481 pp. 877-878). The

High Court of Assam had the power to refuse the writs if

it was satisfied that there was no failure of justice…...”

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39. Granting indulgence to any of the parties in this case

would be causing manifest injustice to other teachers who are

desirous of serving in Shimla and other district and tehsil

headquarters but have failed mainly because of the cartel formed by

the influential teachers like the parties in the instant case.

40. Even though the petitioner has made out a legal ground

for quashing the impugned order, however, this Court is still not

inclined to exercise discretion in her favour as “justice” is not on the

side of the petitioner.

41. In the given facts and circumstances of the case as

discussed above, neither the petitioner nor the third respondent

deserve to be posted in their home district.

42. Accordingly, while disposing of the writ petition, we

direct respondents no. 1 and 2 to transfer the petitioner as also

respondent No. 3 outside their home district(s) within two weeks’

from today. The respondents while effecting the transfers shall bear

in mind that the same should not be amount to adjustment and

should be a meaningful transfer.

43. Before parting, we hope and trust that the respondents

would take all requisite steps to break the cartel and as far as

possible ensure that maximum number of teachers, especially those

whose children are to appear in the Board examination and

examination for professional courses are afforded an opportunity to

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serve in the district and tehsil headquarters or wherever requisite

infrastructure like adequate band width, facility of tuition etc. are

available.

44. The writ petition is disposed of in the aforesaid terms,

so also pending applications, if any. Parties are left to bear their own

costs.

Record is ordered to be returned.

List for compliance on 10.09.2020.

(Tarlok Singh Chauhan)

Judge

(Jyotsna Rewal Dua)

26

th

August, 2020. Judge

(sanjeev)

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