Transfer orders are to be issued by the Administrative head after independent application of mind: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 06 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLACWP No. 24221Reserved on: 30.04.2021Decided on: 04.05.2021____________________________________________________________ Brij Lal Thakur .....PetitionerVersusHimachal Pradesh State Electricity Board Ltd. & Anr. …..Respondents_____________________________________________________________CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan JudgeThe Hon ble Mr. Justice Chander Bhusan Barowalia Judge1 Whether approved for reporting Yes.______________________________________________________For the petitioner:Mr. K. D. Shreedhar Sr. Advocate withMr. Ramakant Sharma Advocate.For the respondents:Mr. Lakshay Thakur Advocate forrespondent No. 1.Mr. C. S. Thakur Advocate forrespondent No. 2.(Through Video Conferencing)Tarlok Singh Chauhan Judge It was the Government itself which vide letterdated 20th July 2019 had imposed complete ban on transferswith clear stipulations that no transfers or adjustments wouldbe ordered by any Departments Boards Corporations Universities etc. during the ban period without obtaining theprior approval of the Hon’ble Chief Minister to the concernedMinister in Charge that too in the circumstances specifically1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 05 HCHP provided under para 8 of the Comprehensive GuidingPrinciples 2013 circulated vide OM No.Per(AP B) E(3) 17 2012 dated 10.07.2013 which reads as under: “8.During the ban period: During the period of ban transfers will be ordered with the prior approval of theChief Minister if needed that too in the followingcircumstances: To fill up the required posts lying vacant intribal difficult hard area which need immediatefilling up in the public interest or such functionalposts in the absence of which the work issuffering.To fill up the vacancies arising on account ofretirement promotion and new creation.In the cases where employees are transferred onaccount of disciplinary proceedings vigilancecases criminal proceedings etc.(iv)To fill up the vacant posts in view theadministrative exigencies.(v)In the cases of exigencies and on administrativegrounds as well as priorities of the Government by recording reasons in writing the condition ofshort stay and short distance can be condoned.”2.After issuance of the aforesaid notification it wasnoticed by the Government that despite the instructionsfrequent transfers in other eventualities were being made bythe various Departments Boards Corporations Universitieswere still being made in violation of the instructions.Therefore the State Government vide its notification dated2 Hig h C o urt of H.P on 06 05 HCHP 23.07.2020 decided to impose complete ban on transfers anddirected that no transfer or adjustment shall be ordered bythe Departments Boards Corporations Universities during theban period except in rarest of the rare cases i.e. only onextreme medical grounds or on administrative exigencies thattoo with the prior approval of the Hon’ble Chief Ministerthrough the concerned Minister in Charge in accordance withthe Comprehensive Guiding Principles dated 10.07.2013.3.The aforesaid instructions were thereaftermodified vide notification dated 19.11.2020 by continuing theban on general transfers and permitting transfers only on thefollowing eventualities that too with the prior approval of thecompetent authority: 3. Broadly transfers may be ordered strictly withapproval of the competent authority only in thefollowing eventualities:To fill up vacant posts in tribal difficult hard areasTo fill up vacancies arising out of retirements promotions and creation of new postsTransfers necessitated on account of disciplinarymatters vigilance cases criminal proceedings etc.In cases involving administrative grounds andexigencies.4.It would however be noticed that despite theseinstructions the transfers are being effected by flouting andviolating these guidelines with impunity as a result whereof the Courts are flooded with the litigations of transfer.5.Despite the law on the subject being well settled 3 Hig h C o urt of H.P on 06 05 HCHP yet we find the same is being violated with impunity either bythe political executive or by the administrative authority constraining the employees to have initially approached theAdministrative Tribunal and on its closure this Court unnecessarily clogging its docket.6.It is trite that transfer is an incidence of serviceand as long as the authority acts keeping in view theadministrative exigency and taking into consideration thepublic interest as the paramount consideration it hasunfettered powers to effect transfer subject of course tocertain disciplines. Once it is admitted that the petitioner isState government employee and holds a transferable postthen he is liable to be transferred from one place to the otherwithin the District in case it is a District cadre post andthroughout the State in case he holds a State cadre post. Agovernment servant holding a transferable post has no vestedright to remain posted at one place or the other and courtsshould not ordinarily interfere with the orders of transferinstead affected party should approach the higher authoritiesin the department. Who should be transferred where and inwhat manner is for the appropriate authority to decide. Thecourts and tribunals are not expected to interdict the workingof the administrative system by transferring the officers to“proper place”. It is for the administration to take appropriatedecision.4 Hig h C o urt of H.P on 06 05 HCHP 7.Even the administrative guidelines for regulatingtransfers or containing transfer policies at best may afford anopportunity to the officer or servant concerned to approachtheir higher authorities for redressal but cannot have theconsequence of depriving or denying the competent authorityto transfer a particular officer servant to any place in publicinterest and as is found necessitated by exigencies of serviceas long as the official status is not affected adversely andthere is no infraction of any career prospects such asseniority scale of pay and secured emoluments. Even if theorder of transfer is made in transgression of administrativeguidelines the same cannot be interfered with as it does notconfer any legally enforceable rights unless the same isshown to have been vitiated by mala fides or made inviolation of any statutory provision. The government is thebest judge to decide how to distribute and utilize the servicesof its employees.8.However this power must be exercised honestly bonafide and reasonably. It should be exercised in publicinterest. If the exercise of power is based on extraneousconsiderations without any factual background foundation orfor achieving an alien purpose or an oblique motive it wouldamount to mala fide and colourable exercise of power. Atransfer is mala fide when it is made not for professedpurpose such as in normal course or in public or5 Hig h C o urt of H.P on 06 05 HCHP administrative interest or in the exigencies of service but forother purpose such as on the basis of complaints. It is thebasic principle of rule of law and good administration thateven administrative action should be just and fair. An order oftransfer is to satisfy the test of Articles 14 and 16 of theConstitution otherwise the same will be treated as arbitrary.9.Judicial review of the order of transfer ispermissible when the order is made on irrelevantconsideration. Even when the order of transfer whichotherwise appears to be innocuous on its face is passed onextraneous consideration then the court is competent to gointo the matter to find out the real foundation of transfer. Thecourt is competent to ascertain whether the order of transferpassed is bonafide or as a measure of punishment.10.The law regarding interference by Court intransfer posting of an employee as observed above is wellsettled and came up before the Hon’ble Supreme Court inU.O.I and Ors. vs. S.L. Abbas4 SCC 357 Mrs.Shilpi Bose and Ors. vs. State of Bihar and Ors. AIR1991 SC 532 State of Uttar Pradesh & Ors. vs.Gobardhan Lal 11 SCC 402 State of MadhyaPradesh & Anr. vs. S. S. Kourav & Ors. AIR 1995 SC1056 M. Sankaranarayanan IAS vs. State of Karnataka& Ors. AIR 1993 SC 763 N. K. Singh vs. Union of Indiaand Ors. AIR 1995 SC 423 and Airports Authority of6 Hig h C o urt of H.P on 06 05 HCHP India vs. Rajeev Ratan Pandey 2009SCC 337 and theconclusion may be summarised as under: “1. Transfer is a condition of service. 2. It does not adversely affect the status oremoluments or seniority of the employee. 3. The employee has no vested right to get a postingat a particular place or choose to serve at aparticular place for a particular time.4. It is within the exclusive domain of the employer todetermine as to at what place and for how long theservices of a particular employee are required. 5. Transfer order should be passed in public interest oradministrative exigency and not arbitrarily or forextraneous consideration or for victimization of theemployee nor it should be passed under politicalpressure. 6. There is a very little scope of judicial review byCourts Tribunals against the transfer order and thesame is restricted only if the transfer order is foundto be in contravention of the statutory Rules ormalafides are established. 7. In case of malafides the employee has to makespecific averments and should prove the same byadducing impeccable evidence. 8. The person against whom allegations of malafide ismade should be impleaded as a party by name. 9. Transfer policy or guidelines issued by the State oremployer does not have any statutory force as itmerely provides for guidelines for the understandingof the Department personnel. 10. The Court does not have the power to annul thetransfer order only on the ground that it will causepersonal inconvenience to the employee his familymembers and children as consideration of theseviews fall within the exclusive domain of theemployer. 7 Hig h C o urt of H.P on 06 05 HCHP 11. If the transfer order is made in mid academic sessionof the children of the employee the Court Tribunalcannot interfere. It is for the employer to considersuch a personal grievance.”11.However the moot question poised in the instantpetition is the scope of writ petition where the orders oftransfer are proposed generated by the Member of Parliament(MP) of the concerned Constituency giving a writtenrecommendation and thereafter the same gets implementedthrough the Hon’ble Chief Minister leaving virtually little or noscope for any discretion or taking any independent decisionfor the administrative department.12.Adverting to the facts of the case it would benoticed from the perusal of record that the Member ofParliamentaddressed a letter undated to theHon’ble Chief Minister recommending the transfer of privaterespondent in place of the petitioner and vice versa incondonation of short stay. The recommendations were sent bythe Special Secretary to the Hon’ble Chief Minister to theDepartment by U.O. Note dated 03.02.2021 by treating thesame to be the approval of the Hon’ble Chief Minister.However it was recorded in the department file that thepetitioner is working as Superintending Engineerinthe office of SECircle HPSEBL Kangra w.e.f. 07.06.2019and has not completed his normal stay there and respondentNo. 3 who is working as Superintending EngineerCircle BVPCL Jogindernagar w.e.f.14.12.2000 has completed only three months and the matterwas accordingly put up for consideration.13.Accordingly the respondent department made anadministrative proposal which is as under: “Administrative ProposalAs per col No. 4 above both the aforesaidofficers are in short stay in the respective offices. Theycan only be transferred on vice versa basis if thecondition of short stay & less than one year stay &home Circle condition of Er. Ajay Gautam SEisrelaxed by the Hon’ble Chief Minister in his case.The above proposal is submitted for the kindconsideration approval of the Hon’ble Chief Ministerplease.”14.The matter was thereafter placed before theDirectorwho appended the following note: “Besides above BVPCL too is important frequent shiftsof SE may not be prudent.”15.The matter was thereafter placed before theManaging Director who appended the following note: “The transfer will have an impact on the rehabilitation.May kindly pend for time being.”16.The proposal was then placed before the Hon’bleMinister concerned who appended the following note: “Home circle relaxed. May be implemented after 31stMarch 2021.”17.It is more than settled that an elected9 Hig h C o urt of H.P on 06 05 HCHP representative can only propose the transfer of an employee that too for genuine and cogent reasons and not by usurpingthe authority of the administrative department who alone iscompetent to issue the orders of transfer after due applicationof mind. Obviously the administrative department in suchcircumstances had no choice whatsoever but to implementthe recommendations made by the MP concerned as approvedaforesaid. 18. About four decades back a learned DivisionBench of this Court in Ram Krishan vs. District EducationOfficer ILR HP 1979 8 HIM 481 observed as under: “8. We hereby record our strong disapproval of such typeof interference from outsiders in day todayadministration of the State. If such interference is tobe allowed it would only mean that the governmentservants should run after those who are taking partin public life and in politics for getting better termsof service and a better place for their postings andshould do everything to please them and not toplease the department by their ability honesty andintegrity. It need not be emphasized that suchinterference of outsiders in day to dayadministration of the State is highly detrimental tothe public interest as it would result in nepotism andcorruption wherein only those who can wieldinfluence and purse can succeed. Therefore wewant by this judgment to bring it to the notice of allconcerned that sooner this type of interference isdiscouraged and stopped the better for theadministration and the people of this State.”19.In A.K. Vasudeva vs. State of H.P. and others 10 Hig h C o urt of H.P on 06 05 HCHP ILR(1981) 10 HIM 359 this court whiledealing with a case in which the transfer of a teacher hadbeen made at the behest of a Member of the LegislativeAssembly held as follows: “21. The practice of effecting transfers of teachers at thebehest of every M.L.A. and other influential personsseems to be rampant in the department of Educationin the State. The record is full of it. Indeed when thetransfer proposals are prepared there is a columnNo. 8 which is to show “recommended proposedby”. I find that a transfer as been made even at theinstance of the President Youth CongressSubathuof a teacher Alaxender from Kanda to Subathu. Itappears that no transfer is made except at theinstance of somebody. Why was Shri Chaman Lalreluctant to admit his role and why did he deposethat he had nothing to do with the posting andtransfer of any teacher I had expected him to comeout openly and frankly. He is not only a member ofthe Legislative Assembly but at the moment owns aresponsible position as Chairman of a publiccorporation.”20.Thereafter referring to the judgment in RamKrishan’s casethis court went on to hold as follows: “28. It is unfortunate indeed that despite theaforementioned pronouncement by this Court themalady of the politicians interfering in theadministration of the Education Department is asrampant as before if not worse. Apparently no one isbothered about any discipline in this department andthe teachers and others are perhaps encouraged bythis method to be beholden to the political personsinstead of relying on the honesty and the integrity of11 Hig h C o urt of H.P on 06 05 HCHP the Director of Education and other officers foradministering the department and orderingtransfers.”21.In Sant Ram Pant vs. State of H.P. andothers 2009Shim. L.C. 206 a Division Bench of thisCourt held as follows: “8. When transfers are made an employee may beaggrieved by his transfer. An employee has a right tomake a representation against such transfer. It isalso the right of the employer including the State tolook into the grievances of the employees and if thegrievance made by the employee is found to begenuine the State is well within its right to redressthe grievance of the employee and cancel the orderof transfer. However the grounds for passing anorder of cancellation within two weeks of the originalorder must be borne out from some material on therecord. In the present case despite twoopportunities being given the State has not producedany representation made by the respondent No. 3 orany other communication addressed to the office ofthe Hon ble Chief Minister on behalf of therespondent No.3 which would justify the issuance ofthe note dated 1.1.2009.”22.In CWP No.11006 titled SushilaSharma vs. State of H.P and others this court has held asfollows: “We however direct that a copy of this judgment besent to the Chief Secretary to the Govt. of H.P. whoshall ensure that a proper transfer policy isformulated to ensure that the transfers are madeonly on administrative grounds and not on any12 Hig h C o urt of H.P on 06 05 HCHP others grounds. In the policy to be framed it shall beensured that all the employees are treated fairly andequally and every employee during his tenure ofservice serves in tribal hard areas and also inremote rural areas. When transfers are made theadministrative department shall ensure that theemployees who have already served in tribal hardareas as well as remote rural areas are not againsent to these areas and there is a continuousprocess of change whereby all the employees have achance to serve in tribal hard areas as well asremote rural areas. In the policy so framed It shouldalso be ensured that the transfer orders are notcancelled without making reference to theadministrative department to put forth its views. Inthe policy measures shall be provided to ensure thatemployeeswho have managedto remain posted in the urban areas cities are postedto rural remote areas and hard tribal areas in thetransfer season when the transfers are made. Thetransfer policy should also ensure that people whoare posted in remote rural areas join their place ofpostings and do not manage to get their transferscancelled on frivolous grounds as has happened inthe present case. The policy be framed and filed inCourt within two months from today.” Consequent tothese directions a policy was framed but has beenobserved more in breach.”23.In CWP No.28410 titled Pratap SinghChauhan vs. State of H.P. & others decided on 18.6.2011 a learned Single Judge of this court after considering variousjudgments of Hon’ble Supreme Court held as follows: “10.We are governed by the Constitution of India. As perthe constitutional scheme there are three pillars of13 Hig h C o urt of H.P on 06 05 HCHP democracy the Legislature the Judiciary and theExecutive. Each has to work in its own sphere. This isa system of checks and balances where each cancheck the other but it must be clearly understoodthat none of the three organs can encroach upon thejurisdiction of the other. The jurisdiction vested inthis Court under Article 226 of the Constitution ofIndia is indeed very wide. Wider the jurisdiction more care should be taken to exercise it with greaterdiscretion so that questions are not raised about thefunctioning of the Judiciary. The Apex Court has in nouncertain terms laid down a note of caution thatCourts should not interfere in transfer mattersexcept on very strong grounds. 11.Having held so this Court is also not oblivious to thefactual position which exists on the spot and thesituation is that day in and day out this Court isflooded with writ petitions in which employeeschallenge the order of their transfer on variousgrounds. On more than one occasion this Court hasfound that there are notes sent by publicrepresentatives such as Members of the LegislativeAssembly recommending the transfers. No doubt public representatives have a right to makerecommendations but these can only berecommendations and cannot be taken to be thefinal word.”24.In CWP No.35311 titled Babita Thakurvs. State of H.P. and others a learned Single Judge of thiscourt held as follows: “9. It is true that it is for the employer to see where theGovernment servant is to be posted. However it isequally true that there is no arbitrariness in theaction. The transfer cannot be used as an instrument14 Hig h C o urt of H.P on 06 05 HCHP to accommodate adjust the persons without therebeing any administrative exigency. The underlineprinciple for transfer is public interest oradministrative exigency. In the instant case neitherthere was any public interest nor any administrativeexigency necessitating the transfer of the petitionerfrom government Primary School ChadyaraHLR(DB) 648 wherein the learned Division Bench of this Courtcommenced the judgment with the following observations: “1.This Court is flooded with litigation filed byemployees aggrieved by their transfer andsometimes even by their non transfer when they arenot shifted out of tribal areas. The time has comewhen we must lay down the law with regard to thepowers of the legislators to influence transfers.Should political pressure and political influence benecessary to run the administration Shouldtransfers be ordered on the asking of the legislators members of a particular ruling party personsbelonging to certain groups without even making areference to the administrative departmentconcerned Is the policy of transfer always bindingupon the Government and its employees or can theGovernment flout with impunity the policy framed byit No doubt the employer is the master and candecide which employee is to be posted at whichparticular place but we must remember that we aregoverned by the Constitution of India. Does not eachand every employee have a right to claim that he15 Hig h C o urt of H.P on 06 05 HCHP should be treated fairly Why is it that favouredemployees who are either well connected or canexercise political or bureaucratic clout are nevertransferred out of the main cities and thoseemployees who do not enjoy such political orbureaucratic patronage have to stay in remote tribalareas for years on end.2.Another disturbing feature which we have found isthat in the State of Himachal Pradesh after theperiod earmarked for normal transfers is over thetransfers have to be ordered only after approval ofthe competent authority which normally is theHon ble Chief Minister. We have found that peopledirectly approach the Hon ble Chief Minister usingpolitical influence and patronage without firstmaking a representation to the departmentconcerned. This is a total violation of the ConductRules. Despite this violation of the Conduct Rules these requests of the employees who are backed bypolitical patronage are accepted without evenconsidering what will be the effect of such transferson the people who are to be served by theseemployees or on those employees who may beaffected by such transfers.3. Does anybody care about the students who arestudying in the schools If no teacher is willing to goto the rural remote areas where will the students ofthese rural and remote areas study Does anybodycare in some remote areas dispensaries are withoutDoctors or paramedical staff whereas there is morethan the sanctioned number of doctors in the Stateand District headquarters. It was only after theintervention of the Court that the Female HealthWorkers who were to serve in the rural areas wereactually transferred there. Almost all the FemaleHealth Workers had been adjusted in Shimla townitself. This shows that neither the interest of the16 Hig h C o urt of H.P on 06 05 HCHP public at large nor that of the administration waskept in view while adjusting these Female HealthWorkers at Shimla. When the employees want a jobthen they are willing to join at any place. However soon thereafter political patronage is employed toget themselves transferred to a particular place.There is more than sufficient material before theCourts to prove that transfers are made forextraneous reasons without considering theadministrative exigencies and the interests of thestudents. 4. This does not speak well of the system of theadministration. We are clearly of the view thatnormally we would not like to interfere in transferorders passed in administrative interests. We arealso of the considered view that all the employees such as teachers doctors nurses etc. willnecessarily have to be posted in rural remote area atsome stage in their careers. The administration hasto be stern and strict in matters of transfers. At thesame time it also has to be fair and just and shouldtreat all the employees equally. It is only because theadministration itself is lax and transfer orders arepassed on extraneous considerations and theadministration reverses its decisions day in and dayout that the courts are forced to intervene. Thesetypes of cases clearly highlight the fact thattransfers are being made not on the basis ofadministrative exigencies but on other extraneousconsiderations. 5. Rule 20 of the Central Civil ServicesRules 1964 lays down that it will be misconduct for anemployee to bring in political pressure or getrecommendations from others in matters relating tohis service. It seems that both the administration aswell as the employees have forgotten that such arule exits. Our experience is that unless an employee17 Hig h C o urt of H.P on 06 05 HCHP gets a “suitable recommendation” or brings inpolitical pressure he can never get posted to astation of his choice. If action is taken against theemployee for breach of the Conduct Rules theemployee could very well say that he is damned if hedoes not use political pressure and damned if hedoes. 6. It would be apposite to quote a humorous poem fromShri A.S Bhatnagar s Commentary on Conduct Rules.‘Ban on recommendation’ a humorous poem Whoam I A victim to the jealousies of those Who to mehave been quite close Suspended from work And for no fault of mine. Oh Justice what a heavy fine ! Iam expected not to seek Help from one mighty orweak. They name it pressure or canvassing A fruitfrom the Forbidden Tree. Which to touch none is free.Is this bar justified When there are cases multiplied Where in favours have been done And ends foulhave been badly won ” 26.It was further observed that there can be nomanner of doubt that a legislator who is the electedrepresentative of the people has a right to place hisdifficulties before the Hon’ble Chief Minister or the Ministerconcerned. It would be well within his rights to complain tothe authorities concerned in case he finds that a particularemployee is not doing his job properly. The Court further wentto observe that transfer is never meant to be a punishmentbut nobody can deny the fact that many times incompetentand inconvenient officials are transferred. 27.The Court then discussed the judgments of thevarious High Courts including the one referred to above and18 Hig h C o urt of H.P on 06 05 HCHP observed as under: “33. From the files which this Court has seen includingthe files of these cases it is apparent that transfersare being made day in and day out at the behest ofpublic representatives. It is true that publicrepresentatives have a right to complain against theworking of government officials. However thesecomplaints must be verified by the administrativedepartment and final action has to be taken by theadministrative department. Transfer is not apunishment and if transfer is inflicted as a means ofpunishment then the whole purpose of makingtransfers in the public interest is set at naught. Anemployee who is rude or inefficient at one stationwill not become polite or efficient at another station.Transfer does not serve any purpose. If theallegations of the public representatives made in thecomplaints against the government servants arefound to be correct then disciplinary action shouldbe taken against such government employees. Welive in a democracy and our elected representativesunder the constitution are to work in the legislatureand not as administrators. They cannot startinterfering in the administration or the working ofthe Executive. This has already resulted ingovernment servants rushing to please the politicalmasters at the cost of doing their duties. This alsodemoralizes the officers who are in charge of theadministration of the department. It is they who arethe best judges to decide how the department has tobe administered and which employee should betransferred to which place. The politicians cannotdon the role of administrators. The earlier suchinherently illegal and improper practices are put toan end the better it would be for the smoothfunctioning of the administration of the State.19 Hig h C o urt of H.P on 06 05 HCHP 34. As far as the concept of judicial review is concerned the Apex Court again observed that the Court shouldbe reluctant in interfering in transfer orders. Thescope of judicial review in the matter of transfer of aGovernment employee is limited and the Courtshould not interfere in the transfer. The Court cannotsubstitute its own opinion for the opinion of theemployee. 35. After reviewing the entire law on the subject we canwithout any hesitation come to the conclusion thatthe scope of judicial review in transfer matters isvery limited. This court cannot interfere in the day today functioning of the Government departments andit is for the administrative heads to decide whichemployee should be posted at which place. Evenearlier we had clearly given a number of judgmentson these lines. 36. At the same time this Court cannot shut its eyes tothe increasing number of transfers being made notfor administrative reasons but only with a view toaccommodate favoured employees. As indicated byus earlier an employee of the department is also acitizen of the country and is entitled to the equalprotection of laws. Therefore the State shouldalways be fair to its employees. They must all betreated equally.”28.It is then that the following directions came to bepassed: “1. The State must amend its transfer policy andcategorize all the stations in the State underdifferent categories. At present there are only twocategories i.e. tribal hard areas and other areas. Wehave increasingly found that people who are sent tothe hard tribal areas find it very difficult to comeback because whenever a person is posted there he20 Hig h C o urt of H.P on 06 05 HCHP first manages to get orders staying his transfer byapproaching the political bosses and sometimeseven from the Courts. Why should the poor people ofsuch areas suffer on this count. We are therefore ofthe view that the Government should categorize allthe stations in the State in at least four or fivecategories i.e. A B C D and E also if the State sorequires. The most easy stations i.e. urban areaslike Shimla Dharamshala Mandi etc. may fall incategory A and the lowest category will be of themust difficult stations in the remote corners of theState such as Pangi Dodra Kawar Kaza etc. At thesame time the home town or area adjoining to hometown of the employee regardless of its category otherwise can be treated as category A or at least ina category higher than its actual category in whichthe employee would normally fall. For example if anemployee belongs to Ghumarwin which iscategorized in category B then if the employee isserving in and around Ghumarwin he will bedeemed to be in Category A. 2. After the stations have been categorized a databasemust be maintained of all the employees in differentdepartments as to in which category of station(s) aparticular employee has served throughout hiscareer. An effort should be made to ensure thatevery employee serves in every category of stations.Supposing the State decides to have four categories i.e. A B C D then an employee should be postedfrom category A to any of the other three categories but should not be again transferred to category Astation. If after category A he is transferred tocategory D station then his next posting must be incategory B or C. In case such a policy is followed there will be no scope for adjusting the favouritesand all employees will be treated equally and therewill be no heart burning between the employees. 21 Hig h C o urt of H.P on 06 05 HCHP 3. We make it clear that in certain hard cases keepingin view the problems of a particular employee anexception can be made but whenever such exceptionis made a reasoned order must be passed whypolicy is not being followed. 4. Coming to the issue of political patronage. On thebasis of the judgments cited hereinabove there canbe no manner of doubt that the electedrepresentative do have a right to complain about theworking of an official but once such a complaint ismade then it must be sent to the head of theadministrative department who should verify thecomplaint and if the complaint is found to be true then alone can the employee be transferred. 5. We are however of the view that the electedrepresentative cannot have a right to claim that aparticular employee should be posted at a particularstation. This choice has to be made by theadministrative head i.e. the Executive and not bythe legislators. Where an employee is to be postedmust be decided by the administration. It is for theofficers to show their independence by ensuring thatthey do not order transfers merely on the asking ofan MLA or Minister. They can always send back aproposal showing why the same cannot be accepted.6. We therefore direct that whenever any transfer isordered not by the departments but on therecommendations of a Minster or MLA then beforeordering the transfer views of the administrativedepartment must be ascertained. Only afterascertaining the views of the administrativedepartment the transfer may be ordered if approvedby the administrative department. 7. No transfer should be ordered at the behest of partyworkers or others who have no connection eitherwith the legislature or the executive. These personshave no right to recommend that an employee22 Hig h C o urt of H.P on 06 05 HCHP should be posted at a particular place. In case theywant to complain about the functioning of theemployees then the complaint must be made to theMinister In charge and or the Head of theDepartment. Only after the complaint is verifiedshould action be taken. We however reiterate thatno transfer should be made at the behest of partyworkers.”29.Yet again the issue of transfer at the instance ofelected representatives came for consideration before thelearned Division Bench of this Court in Sanjay Kumar vs.State of H.P. and Ors. Latest HLJ 20131051 wherein it was observed that it is the head of AdministrativeDepartment who alone has jurisdiction to transfer theemployee that too on the basis of subjective satisfaction. Theauthority making the transfer is to be guided by transferpolicy in vogue. 30.It shall be apposite to refer para 23 of thejudgment which reads as under: “23. Indeed the Head of Administrative Department hasjurisdiction to transfer employees on the basis of hissubjective satisfaction. The authority making thetransfer is to be guided by transfer policy in vogue.” 31.Similar issue thereafter came up before thelearned Division Bench of this Court in Raj Kumar vs. Stateof H.P. and Ors. 2015Him. L.R.567 and afterplacing reliance on the judgment Sanjay Kumar’s casethis Court observed as under: 23 Hig h C o urt of H.P on 06 05 HCHP “21. Tested on the touchstone of aforesaid exposition oflaw it can safely be concluded that the transfer ofthe petitioner cannot withstand judicial scrutiny asthe basis and foundation of the transfer happens tobe the various complaints made by the publicrepresentatives against the petitioner. The transferhas been made on the basis of the U.O. note issuedby the office of Hon’ble Chief Minister and whereas no proposal for transfer has been originated from theconcerned administrative department. Theimpugned transfer order therefore is notsustainable being arbitrary and vitiated because thesame has been issued under dictation.32.Lastly it was observed in para28 of thejudgment which reads as under: “28.This case reflects a dismal state of affairswhere despite repeated directions passed by thiscourt from time to time over the last three and halfdecades the respondents have shown scant regardto such directions and have not cared to follow themandate of law in matters of transfer. This court hasrepeatedly held that any person has a right to makea complaint against an employee regarding hisconduct to his superiors including the Hon’ble ChiefMinister and even request for his transfer. It is however only for the competent authority i.e.administrative department to consider the requestand take appropriate action in accordance with law.But when the administrative authorities do notperform their duties and resultantly fair play isdenied by the administrative authorities people turnup to the courts complaining of such blatant case ofadministrative excess compelling the courts tointervene in such matter. Once the Stategovernment has framed a transfer policy then it is24 Hig h C o urt of H.P on 06 05 HCHP its duty to implement the same because the verypurpose of framing a policy is to strike a balancebetween the rights of the employees and the Statein matters relating to transfer so that the same is notmisused.” Despite the aforesaid directions the things havereally not improved.33.As already observed above the Chief Minister andMinisters elected representatives may recommend thetransfer of an employee as has already been held by thisCourt in Sanjay Kumar and Amir Chand’s caseshowever the transfer orders are ultimately to be issued bythe Administrative head after independent application of mindthat too after subjective satisfaction without being influencedby the recommendations so made by the electedrepresentatives. 34.In the instant case there was no independentdecision taken by the Administrative Head rather there was noscope left for the said purpose and therefore the decisionhas been rendered vulnerable as being influenced by theproposal and recommendations made by the MP concerned. 35.As observed by this Court the Members of theParliament Legislative Assembly or the Minister concernedhave right to make recommendations but theserecommendations cannot be taken to be the final word. Theunderline principle for transfer is public interest or25 Hig h C o urt of H.P on 06 05 HCHP administrative exigency which is conspicuously absent in thepresent case. 36.As held by this Court in Amir Chand’s case(supra) we live in a democracy and our electedrepresentatives under the Constitution are to work in thelegislature and not as administrators. They cannot startinterfering in the administration or the working of theExecutive. It is theywho are the bestjudges to decide how the department has to be administeredand which employee should be transferred to which place.The politicians cannot don the role of administration. 37.It was further held that the electedrepresentatives cannot have a right to claim that a particularemployee should be posted at a particular station. The choicehas to be made by administrative head i.e. Executive and notby the legislators. Where an employee is to be posted must bedecided by the administration. It is for the officers to showtheir independence by ensuring that they do not ordertransfers merely on the asking of an MP MLA or Minister. Theycan always send back a proposal showing why the samecannot be accepted. 38.Lastly it is held that whenever any transfer isordered not by the departments but on the recommendationsof a Minister or MP MLA then before ordering the transfer theviews of the administrative department must be ascertained26 Hig h C o urt of H.P on 06 05 HCHP and only after ascertaining the views of the administrativedepartment the transfer may be ordered if approved by theadministrative department meaning thereby the views of theadministrative department have essentially to be sought inthe matters of transfer. What follows is that the views of theadministrative department must reflect subjective satisfactionand conscious application of mind that the transfer isessential on account of administrative exigency and or publicinterest or that the transfer of employee is necessary for theeffective utilization of his her services.39.Now picking the thread of discussion left behindfrom para 16 of this judgment we may observe that theadministrative department of its own has neither mooted theproposal of transfer nor was in favour of transfer either thepetitioner or the private respondent. The entire exerciseundertaken by the department was only to honour the U.O.note sent by the office of the Chief Minister based upon theD.O. note of the Member of Parliament. 40.Once the administrative department was not infavour of transfer then obviously the same could not havebeen given effect to only on the basis of the D. O. note.41.Moreover the transfer of the petitioner is incontravention of the instructions issued by the Governmenton 19.11.2020as the transfer does not fall in any oneof the eventuality as contemplated in para 3 of the27 Hig h C o urt of H.P on 06 05 HCHP instructions.42.Lastly and more importantly the transfer of theprivate respondent cannot be sustained as he has beenordered to be posted in his home Division which is contrary tothe Transfer Policy.43.The learned counsel for the respondent Board asalso private respondent are at pain to point out that as per theTransfer Policy framed by the respondent Board the Board iscompetent to relax any of the conditions of transfer and wouldplace strong reliance on note appearing below in Clause 23 ofthe Transfer Policy which reads as under: “23. .Notwithstanding above condition guidelines any officer official may be transferred on administrativeground public interest exigencies of Board work. Theexisting standing orders if in contravention of aboveshall stand amended accordingly.” 44.in light of the above conditions guidelines anyofficer official may be transferred on account ofadministrative ground public interest or exigency of service.The existing standing order if in contravention of above shallstand amended accordingly.45.We really do not find any merit in this contentionas the power to relax can be exercised only if it has effectedon administrative ground public interest or exigency ofservice. This is not the fact situation obtaining in the instantcase as the orders of transfer have been passed only to28 Hig h C o urt of H.P on 06 05 HCHP accommodate the private respondent that too on the basis ofthe representation that was made by him to the Member ofParliament.46.That apart it is more than settled that the powerto relax a provision requirement of law can be made only onthe satisfaction of the competent authority and suchsatisfaction is not subjective satisfaction but must be basedon objective consideration of the material placed before thecompetent authority and has to be reflected in the order itself.Whereas in the instant case there is no such satisfactionrecorded by the authority concerned as is evident from whathas been observed in para 16 of this judgmentwhereby the petitioner has been ordered tobe transferred from the office of SECircle HPSEBL Kangra to the office of SECircle BVPCL Jogindernagar 29 Hig h C o urt of H.P on 06 05 HCHP is quashed and set aside. The parties are left to bear theirown costs. 49.With these observations the writ petition isdisposed of so also pending miscellaneous application(s) ifany. Judge(Chander Bhusan Barowalia)4th May 2021 Judge 30 

Summary: Whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MP/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. This was held in Brij Lal Thakur v. Himachal Pradesh State Electricity Board Ltd. &amp; Anr. [CWP No. 2427 of 2021] in the High Court of Himachal Pradesh by the division bench consisting of  Justice Tarlok Singh Chauhan, and Justice Chander Bhusan Barowalia. Facts are the State Government vide its notification dated decided to impose a complete ban on transfers and directed that no transfer or adjustment shall be ordered by the Departments/Boards/ Corporations/Universities during the ban period except in rarest of the rare cases that too with the prior approval of the Hon’ble Chief Minister. The petitioner has been ordered to be transferred from the office of SE (OP) Circle HPSEBL, Kangra to the office of SE (Elect.) Circle BVPCL Jogindernagar, the writ petition has been filed against the same. The Court made reference to the judgment of Division Bench of the court in Amir Chand versus State of Himachal Pradesh, wherein the following observation had been made, “ this Court cannot shut its eyes to the increasing number of transfers being made not for administrative reasons but only with a view to accommodate favored employees. As indicated by us earlier, an employee of the department is also a citizen of the country and is entitled to the equal protection of laws. Therefore, the State should always be fair to its employees. They must all be treated equally.” The Court also made reference to the judgment of Division Bench of the court in Sanjay Kumar vs. State of H.P. and Ors, wherein the issue of transfer at the instance of elected representatives had come for consideration,  the court made the following observation, “it is the head of Administrative Department who alone has jurisdiction to transfer the employee that too on the basis of subjective satisfaction. The authority making the transfer is to be guided by transfer policy in vogue.”