HP Disapproves Of Employees Managing Posting In And Around Urban Areas And Asks State To Break The Cartel

In a well-reasoned, well-analysed, well-balanced and well-articulated judgment, a two Judge Bench of the Himachal Pradesh High Court comprising of Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua in Sheela Suryavanshi v. State of H.P. & Ors. in CWP No. 511 of 2020 delivered just recently on August 26, 2020 has clearly and convincingly disapproved of employees managing posting in and around urban areas and asked the State to break the cartel! It observed that if the employee has been transferred in order to adjust particular persons with no reasonable basis, then such type of transfers can be termed as “mala fide one” and would, normally be liable to be quashed. Very rightly so!

To start with, this notable judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Jyotsna Rewal Dua starts by first and foremost observing in para 1 that, “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.”

To be sure, the Bench then points out in para 2 that, “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.”

To say the least, the Bench then expounds in para 10 that, “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.”

No wonder, it is then rightly noted in para 11 that, “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.”

Briefly stated, what para 12 brings out primarily is that record revealed 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. In the letter, the respondent No. 3 points out that presently I am working as PGT (English) in Govt. Girls Sr. Secondary School, Theog Distt. Shimla (HP) from July, 2019. She also points out that I am suffering from Paralytic problems (brain strokes in Dec. 2018) and since then under treatment in IGMC Shimla and it is very difficult to commute between Theog & Shimla daily due to my problem. She then urges in her letter to transfer her on medical grounds from Govt. Girls Sr. Secondary School Theog to Govt. Sr. Secondary School Sanjauli vice Smt. Sheela Suryavanshi, PGT (English) and condone her short stay at GSSS Theog.

More revealingly, it is then brought out in para 13 that, “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.”

Needless to say, it is then made clear in para 14 that, “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.”

Truly speaking, it is then also conceded while pointing out in para 15 that, “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.”

To put things in perspective, it is then brought out in para 16 that, “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.”

While citing the relevant case law, it is then pointed out in para 17 that, “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.”

Be it noted, it is then observed in para 18 that, “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.”

Not stopping here, the Bench then also does not shy away from pointing in para 19 that, “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.”

To be brutally honest, the Bench then also concedes in para 20 that, “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.”

While taking into account the current situation, it is then enunciated in para 21 that, “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.”

Practically speaking, the Bench then also makes it amply clear in para 22 that, “In such circumstances, the respondents are not only duty bound but are mandated by law to ensure that no monopoly in the matter 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 online 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 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.”

While giving the right and remarkable advice, the Bench then opines in para 23 that, “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 candour 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.”

While continuing in the same vein, the Bench then holds in para 24 that, “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 of freedom, than of man’s other inventions. Absolute discretion marks the beginning of the end of the liberty.”

While citing the relevant case law, it is then pointed out in para 26 that, “Here it shall be apposite to make a reference to the judgment of the Honble Supreme Court in New India Public 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.”

 

More significantly, it is then held in para 31 that, “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.”

No less significant is what is then stated in para 32 that, “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.”

Truth be told, it is then conceded in para 33 that, “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 official respondents.”

To put it succinctly, the Bench then candidly goes on to add in para 34 that, “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 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”

Fittingly enough, the Bench then holds in para 35 that, “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.”

No doubt, it is then rightly pointed out in para 36 that, “It is well known that, “Hard cases make bad law”.” Para 37 further too rightly points out that, “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”.”

Without mincing any words, it is then pointed by the Bench in para 39 that, “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.”

What’s more, the Bench then adds further in para 40 that, “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.”

To top it all, the Bench then holds in para 41 that, “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.”

While continuing in the same vein, the Bench then further directs in para 42 that, “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 amount to adjustment and should be a meaningful transfer.”

Finally and most significantly, it is then held in para 43 that, “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 serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate band width facility of tuition etc. are available.”

In conclusion, the two Judge Bench of the Himachal Pradesh High Court has taken the right approach in dealing with such cases where influential teachers try to always get plum posting only. It has rightly refused to grant any relief to the petitioner. It also has rightly made it clear that the respondents (official authorities) 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 few.

Sanjeev Sirohi

Elected Representatives Cannot Have A Right To Claim That A Particular Employee Be Posted At A Particular Station: HP HC

      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