It is most heartening, most reassuring and most refreshing to learn that the Himachal Pradesh High Court most recently on March 18, 2020 in a latest, landmark and extremely laudable judgment titled Sunita Devi Vs. State of H.P. & Ors. in CWP No. 1978 of 2019 has held in no uncertain terms that elected representatives cannot have a right to claim that a particular employee be posted at a particular station and that the choice is to be made by administrative head and not by the legislators. All the legislators must pay heed to what has been held by the Himachal Pradesh High Court so explicitly, so elegantly and so effectively that leaves no room for doubt whatsoever!
To start with, the ball is set rolling in para 1 of this judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Chander Bhusan Barowalia by first and foremost observing in para 1 that, “This Court of late, more especially, after the closure of the H.P. Administrative Tribunal is flooded with the petitions in which the employees challenge the orders of their transfers.”
Quite alarmingly, it is then observed in para 2 that, “Despite the law on the subject being well settled, 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.”
Significantly, it is then very rightly pointed out in para 3 that, “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.”
What’s more, it is then also pertinently mentioned in para 4 that, “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.”
While adding a caveat, it is then observed in para 5 that, “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 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.”
Be it noted, it is then envisaged in para 6 that, “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.”
What cannot be missed out here is what is then stated in para 31 that, “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 Minister concerned.”
As a corollary, it is then stated in para 32 that, “As observed by this Court, the Members of the Legislative Assembly or the Minister concerned have right to make a recommendations but these recommendations cannot be taken to be the final word. The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent in the present case.”
To be sure, it is then held in para 33 to which the elected representatives must pay heed that, “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.”
Going one step ahead, the next para 34 then envisages that, “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 MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.”
Not stopping here, it is then held in para 35 that, “Lastly, it is held that whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MLA, then before ordering the transfer, the views of the administrative department must be ascertained 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.”
Truth be told, it is then conceded in para 36 that, “Adverting to the present case the order of transfer cannot withstand judicial scrutiny as the same does not show that the petitioner has been transferred on account of administrative exigency and/or public interest. The record further does not reveal that the transfer has been effected for the effective utilization of the services of the petitioner and she has been transferred merely on the basis of the recommendations made by the political executive.”
Needless to say, it is then ostensibly concluded after analyzing everything in para 37 that, “In the given facts and circumstances of the case, the action of the respondents cannot be countenanced and sustained. Accordingly, the order dated 19.08.2019 whereby the petitioner has been ordered to be transferred from Forest Beat Gummer, Block Jawalamukhi Range Jawalamukhi under Forest Division Dehra to Forest Beat Kotla, Block Kotla, Range Dadasiba under Forest Division Dehra is quashed and set aside, leaving the parties to bear their own costs.”
Finally, before parting, it is then observed in the last para 38 that, “However, before parting, it needs to be observed that since the docket of this Court is full of cases relating to transfers of employees, the Government would be well advised to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”
On the whole, it is a very well written, well reasoned and well justified judgment which must be read in its entirety! Para 32 to Para 35 are the most critical part which makes the whole picture very clear on this vexed issue as has been already discussed above! All the elected representatives must always adhere to this in letter and spirit as has been very rightly held by the two Judge Bench of Himachal Pradesh High Court and refrain from interfering as has been directed also and due importance must be given to the administrative department in matters of transfer!
Sanjeev Sirohi