IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4392 of 2011 alongwith CWPs No. 4426, 5314 & 5684 of 2011 Reserved on: 12.09.2011 Decided on: 15.10.2011 CWP No. 4392 of 2011 Satish Kumar …Petitioner. Versus State of H.P. & others …Respondents. ............................................................................................................. CWP No. 4426 of 2011 Suresh Kumar & others …Petitioners. Versus State of H.P. & another …Respondents. ............................................................................................................ CWP No. 5314 of 2011 Upnesh Kumar …Petitioner. Versus State of H.P. & others …Respondents. ............................................................................................................ CWP No. 5684 of 2011 Raj Kumar Thakur …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner(s): Mr. Sanjeev Bhushan and Mr. Anup Rattan, Advocates. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- Deepak Gupta, J. These four petitions are being disposed of by a common judgment, since in all these petitions, the petitioners, who are police officials, have challenged their orders of transfer on similar grounds. 2. What is the scope of interference in administrative action of transfer of an employee by the High Court is the main question which arises for decision in these petitions. 3. There are a number of judgments by various Courts on this aspect. In Union of India and others versus Sh. H.N. Kirtania, AIR 1989 Supreme Court 1774, the Apex Court was dealing with a case where a Central Government Officer was transferred 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 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 -: 3 :- 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 x x x x x x x x x x” 4. In Bank of India versus 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 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 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. -: 4 :- 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” 5. In Union of India and others versus 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 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 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 -: 5 :- 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 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. 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 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 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 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 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 -: 6 :- 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 insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. 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. The Apex Court in State of UP and others versus 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 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, -: 7 :- which could assess the niceties of the administrative 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 ” 8. 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. 9. We are governed by the Constitution of India. As per the constitutional scheme there are three pillars of democracy; the -: 8 :- 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. 10. It is in the light of these principles that each of these cases has now been taken up separately. CWP No. 4392 of 2011 11. The petitioner, in this case, is working as Honorary Head Constable and is aggrieved by his transfer from Una to Indian Reserve Police Third Battalion, Pandoh. The petitioner joined the District Police, Una, about twenty year earlier and has served in Una District in various capacities. According to the petitioner, there are many officials, who have spend more time in District Una, but have been retained there and the petitioner has been picked up for transfer to Indian Reserve Police Third Battalion, Pandoh. 12. The petitioner alleges that in terms of Section 34 of the H.P. Police Act, it is only the officers of District Armed Reserves and Armed Police Battalions, who can be rotated from time to time in accordance with general or special Standing Orders of the -: 9 :- Director General of Police. Section 34 of the said Act reads as follows: “34. Rotation between Battalions and Armed Reserves. Officers of District Armed Reserves and Armed Police Battalions shall be rotated from time to time in accordance with general or special Standing Orders of the Director-General of Police. No direct recruitment of Non-Gazetted Police Officers Grade-II shall be made to District Armed Reserves, and all vacancies shall be held in Battalions and the Director-General of Police shall cause all direct recruitment vacancies to be filled up every year in accordance with the Recruitment and Promotion Rules.” 13. According to the petitioner, he is not in the District Armed Reserved Force and cannot be transferred to IRB. Certain personal difficulties have also been expressed. The stand of the respondents-State is that the name of the petitioner figures in the list of officers of doubtful integrity and, therefore, he has been transferred. In rejoinder, the petitioner has denied these allegations. CWP No. 4426 of 2011 14. There are three petitioners in this case. They were all working in District Sirmaur and first two petitioners have been transfer to 1st IRB Bangarh, and the third petitioner has been transfer to 1st Battalion, Junga. The petitioners allege that they have been transferred due to political interference or due to mala fide reasons, but no person has been arrayed as respondent in person and there are no details of the alleged mala fides in the petition. It is alleged that many persons, who are juniors to the petitioners and some who are seniors to them, i.e., persons -: 10 :- who have spent longer time at Sirmaur have been retained, but the petitioners have been transferred to Battalions. 15. Petitioner No. 1 joined service in District Sirmaur. He served at Junga from 1986 to 1989 and was transferred back to District Sirmaur. Thereafter, he served at various places within District Sirmaur and has now been transferred to Bangarh. Petitioner No. 2 also joined his service in the year 1986 and underwent training first at Madhuban, Haryana and thereafter at Pandoh, H.P. He served there from 1987 to 1990. He has, thereafter, served at various places in District Sirmaur. Petitioner No. 3 also underwent same training and after 1990, he served at various places in District Sirmaur. 16. According to the petitioners, Head Constables and HHCs are required to serve in the Battalion only once and the petitioners had served in Battalion and could not be sent again to the Battalion. Further, according to the petitioners, they have been transferred after a short stay at the previous stations. It is also alleged that there are many police officials who have serious charges against them but have been retained in the Districts, while the petitioners have been posted to the Battalions. Some personal difficulties have also been expressed with regard to their transfers. 17. The stand of the respondents-State is that the Deputy Superintendent of Police, State Vigilance and Anti Corruption Bureau, has conducted an inquiry against petitioners -: 11 :- No. 1 and 2 and it is alleged that they have disproportionate assets to their known source of income and their names figure in the list of officials of doubtful integrity and as such, they have been transferred. It is further stated that petitioner No. 3 has also been transferred in the interest of the administration, since his name also figures in the list of officials of doubtful integrity. 18. The petitioners in their rejoinder have stated that no notice was given to them and they have not been associated by any such enquiry. It is further stated that wife of petitioner No. 1 is a Class-II Gazetted employee and he does not have any assets exceeding his income. It is also argued that there is no provision of maintaining a list of officials of doubtful integrity. Even otherwise, it is alleged that other officials, whose names appears in such list, have not been transferred, but, in fact, some have been promoted while the petitioners have been transferred. CWP No. 5314 of 2011 19. The petitioner, in this case, was initially recruited in the year 1986 and after undergoing training at Madhuban in Haryana and Pandoh in H.P., served in the Battalion up to 1991 and, thereafter, has been posted in District Una at various places. According to the petitioner, he has lost both his parents and his wife and has to look after his children. He has been posted to 3rd IRB at Pandoh and has challenged the transfer order mainly on the ground that persons with longer stay have -: 12 :- been retained whereas he has been transferred. He has also relied upon Section 34 of the H.P. Police Act. 20. The stand of the respondents-State is that the name of the petitioner figures in the list of officers of doubtful integrity. According to the State, under Section 3 of the H.P. Police Act, there is one public service in the State, called the police service, and each member of the police service can be posted in any branch at any stage. CWP No. 5684 of 2011 21. The petitioner, in this case, was recruited in the year 1987 and after completing his training at Junga, served there till 1994. He then served in District Kinnaur till 1997 when he was posted in District Solan and has served at various places in District Solan. He also served at Junga from 1999 to 2003, 2004 to 2006 and at Shimla and Rajgarh. He again served at Junga in the year 2008, but now he has been transferred to 1st IRB, Bangarh. His allegation is also that many persons, who have longer stay at Solan, have been retained and he has been picked up for transfer. 22. The stand of the respondents-State is that the petitioner has been transferred in accordance with the provisions of the Act and the Rules and on administrative grounds. 23. All these cases relate to the uniformed police service, where it is essential to maintain a high level of -: 13 :- discipline. People of doubtful integrity cannot be permitted to stay at the places of their choice. It may be true that there is no legal provision for maintaining such a list, but it is a well known fact that every department itself maintain