IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2844 of 2010. Judgment reserved on 9.5.2011. Date of decision: 18.6.2011. Pratap Singh Chauhan … Petitioner. Versus State of HP & Ors. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1. Yes. _______________________________________________________________ For the petitioner: Mr. Ajay Sharma, Advocate. For the respondents No. 1 to 3: Mr. Vivek Singh Thakur, Addl. AG. For the respondent No.4: Ex-parte. For the respondent No.5: Mr. Adarsh Sharma, Advocate. For the respondent No.6: Mr. B.C.Negi, Advocate. Deepak Gupta, J. 1. This petition raises certain important questions of law. The first question which arises is with regard to the scope of interference in the administrative action of transfer of an employees by the High Court in exercise of the jurisdiction vested in it under Article 226 of the Constitution of India. 2. There are number of judgments by various Courts on this aspect. In Union of India and others v. Sh. H.N. Kirtania, AIR 1989 Supreme Court 1774 the Apex Court was dealing with a case where a Central Government Officer was transferred 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. -2- from Calcutta to Jaipur. He filed a writ petition in the High Court of Calcutta and a Learned Single Judge of this Court granted an interim injunction against the transfer order and issued a direction to the employer to permit the petitioner to join duty at Calcutta. A Division Bench of the Calcutta High Court confirmed the order. The Union of India filed an appeal and in this appeal the Apex Court held as follows:- x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer. x x x x x x x x x x x x x x x x x x x x” 3. In Bank of India v. Jagjit Singh Mehta, AIR 1992 Supreme Court 519 the Apex Court was dealing with a case where an employee who was a clerk was posted from Chandigarh to District Giridih in the State of Bihar on his promotion to the Officer Grade. The High Court of Punjab and Haryana allowed the petition and directed the bank to transfer the petitioner and post him somewhere in Chandigarh, since the wife of the petitioner was working in the office of Advocate General Punjab at Chandigarh. The Apex Court held as follows:- x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariable be one of their choice, even though their -3- preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x ” x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. 6. The High Court was in error in overlooking all the relevant aspects as well as the absence of any legal right in the respondent to claim the relief which the High Court has granted as a matter of course. The High Court's order must, therefore, be set aside. x x x x x x x x x x x x x x x x x x x x” 4. In Union of India and others v. S.L. Abbas, AIR 1993 Supreme Court 2444 the Apex Court was again dealing with a case where the employee had challenged his transfer from Shillong to Pauri (Uttar Pradesh) on the ground that his wife was employed at Shillong and his children were studying there. It was also submitted that he had also suffered backbone fracture injuries and, therefore, he be kept at Shillong. The case of the petitioner was that there were many other employees who had served at Shillong for a longer period, but he had been -4- transferred because he had made certain complaints. The Central Administrative Tribunal decided the Original Application in favour of the employee. The Union of India came up in appeal and the Apex Court held as follows:- “x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that “the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority.” Fundamental Rule 15 says that “the President may transfer a Government servant from one post to another”. That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed “mischief” to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. x x ” 5. A Division Bench of the Rajasthan High Court dealt with this question in detail. Hon'ble Justice Shri B.S. Chauhan speaking for the Bench held as follows:- “ x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x An employee holding a transferable post cannot claim any vested right to work on a particular place as the transfer order does not affect any of his legal rights and Court cannot interfere with a transfer posting which is made in public interest or on administrative exigency x x x x x x x x x x x x . x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x Transfer of a Govt. servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Govt. servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. x x x x x x x x x x x xx x x x x x x x x x x x x x x x x x x x x x x -5- x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x Thus, it is clear that the transfer policy does not create any legal right in favour of the appellant. It is settled law that writ petitioner under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondent. Therefore, there must be judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the court that he has a legal right to instat on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. x x xx x x x x x x x x x x x x x x x x x x x x x x x ” 6. A Division Bench of the Apex Court in State of UP and others Vs. Gobardhan Lal and others, (2004) 11 Supreme Court Cases 402 again dealt with the issue of the scope of the interference by the Court in transfer matters:- “ x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even 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 redress 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. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative -6- needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. x x x x x x x x x x x x x x x x ” 7. From a reading of the judgments of the Apex Court it is apparent that a government servant cannot urge that once he has been posted and appointed in a particular place he should continue in such a place as long as he desires. Transfer is part and parcel of service and unless the order of transfer is shown to be a mala fide or violative of any statutory provisions such as an Act or Rule or passed by an authority not competent to do so it should not be normally interfered with by the High Court. The Apex Court in no uncertain terms held that administrative guidelines or policies adopted for regular transfer may at best give an opportunity to the government servant to approach the higher authorities for redressal of his/their grievance(s), but they do not give the employee any legal right to claim relief under Article 226 of the Constitution of India. The Apex Court in no uncertain terms has laid down that the Courts should not act as Appellate Authorities over such orders and the Courts cannot substitute their decision in the matter of transfer for that of the competent authorities. 8. A Division Bench of this Court in Sant Ram Pant Vs. State of HP and others, 2009 (3) Shim. LC 206 held as follows:- -7- “ x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 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. x x x x x xx x x x x x x x x x x x x x x x x x x x x x x x x x x x” 9. This Court in CWP No. 503 of 2007 titled Gurdev Jassal v. State of H.P. & ors, decided on 21.5.2007 had even deprecated the practice of stay orders being granted by the judicial tribunals and authorities in matters relating to stay. The observations of this Court are relevant in the present case also, which read as follows:- “We have also noticed a growing trend that while granting stay in transfer cases the judicial authorities do not take into consideration the adverse impact which such orders may have on the general public. Stay orders are granted at the instance of the applicants resulting in one or more than one officers of the same rank being posted at one place against one vacant post, like in the present case. This results in the public suffering at the place where no officer is posted and the office remaining vacant. We can take judicial notice, and in fact we have noticed in a large number of cases that due to stay orders being granted, posts of Teachers and Doctors in remote areas keep lying vacant. After obtaining the stay orders, the officers are in no hurry to get their matter heard. Why should the students in schools suffer for lack of Teachers? Why should the patients suffer in the absence of the Doctors? This court cannot shut its eyes to these important questions. In our considered opinion, while deciding the question whether stay should be granted or not in the matters regarding transfer of the employees, the judicial authority must keep in mind the interest of the public also. We are also of the view that where the applicant- petitioner has a strong case, it is better to decide the case itself and quash the transfer orders rather than granting a stay which continues for an indefinitely long period.” -8- 10. We are governed by the Constitution of India. As per the constitutional scheme there are three pillars of 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. 12. In Sushila Sharma Vs. State of H.P. And others decided on 27.8.2007 we had clearly laid down that in future transfer orders should not be cancelled without making -9- reference to the administrative department to put-forth its views. Relevant portion of the order reads as follows:- “ x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 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 others grounds. In the policy to be framed, it shall bhe 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. x x x x x x x x x x x x x x x x x x x x xx x x x x ” 13. Whereas, this Court normally would not interfere in transfer matters when it is made on administrative grounds or public interest if it is proved that the transfer has been made at the behest of politicians and the administrative department has not even verified the facts, then this Court would be falling in its duty if it does not correct the situation. 14. In Ram Krishan Vs. District Education Officer, Indian Law Reports (Himachal Series) (1979) 8 HIM, 481 this Court expressed its dismay and dissatisfaction in the manner in which outsiders ( Legislators) were interfering in the transfer of government servants. It held as under:- -10- “ x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 8. We hereby record our strong disapproval of such type of interference from outsiders in day-to-day 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