NOTES ON TRANSFERS OF EMPLOYEES

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NOTES ON TRANSFERS OF EMPLOYEES

2015 State of HP Vs Tara Devi 19.01.2015 (SC)

Transfer of employees – powers of – On request from public representatives at all Reason, levels, on administrative exigencies and in the public interest, transfer shall be considered by the competent authority and shall be permissible. Clause of 17 of Transfer policy was upheld.

2013 LIC 316 Rattan Lal Vs State of HP

Constitution of India, 1950, Article 16 – Transfer order – Validity of the same – Employee was Junior Engineer transferred on basis of some note issued from office of Chief Minister – No reference was made by administrative department of any administrative exigency – Further, there was no reason why CM approved the transfer of private respondent – If the distance between two stations is only four kilometres then also we fail to understand why it was necessary to transfer the petitioner and the private respondent – There is no material on record to show what was the administrative exigency which led to the transfer of the petitioner – Accordingly, Transfer of employee held not proper. [Para 5]

2013 LIC 314 Anil Kumar Sharma Vs State of HP CWP No. 7634 of 2012

A. Constitution of India, 1950, Articles 14 and 16 – Transfer of employee – Order passed for the same without persisting him to complete his normal tenure and without considering his retirement date – Said order held illegal arbitrary and violative of Articles 14 and 16 of Constitution of India. [Para 3] B. Constitution of India, 1950, Articles 226 and 227 – transfer matters – Scope of judicial review in such matters is very narrow – However, when transfer order is actuated with mala fide intention and same has been issued just to accommodate a particular person without any plausible reason – Court may intervene. [Para 2]

2013 (3) SLC 1594 Ashok Kumar Attri Vs Himachal Pradesh Power Corporation

Transfer order – Challenged – Petitioner alleging that he was about to superannuate in 2015 and was transferred on D.O. letter received from office of Chief Minister against extant transfer policy – Held, Appropriate Authority clearly abdicated its authority and was swayed away by D.O. letter received from Office of Chief Minister pursuant to which transfer order passed – Moreover respondent completely glossed over mandate specified in extant transfer policy – Hence order not sustainable and set aside – Respondent directed to pass order in accordance with extant transfer policy. [Paras 4 and 6]

2013 (3) SLC 1373 Sanjay Kumar Vs State of HP

Constitution of India, 1950, Article 16 – Writ petition – Validity of transfer orders – Transfer order passed on basis of instructions of Chief Minister – One employee transferred at stage when he had only one and half years remaining service which was against transfer policy – Other 3 employees transferred before completion of their tenures as Work Inspectors at place `D’ – Specific plea taken by said employees that many Work Inspectors were working at place `D’ for more than 15 years, but they were not transferred – Nothing on record as to what were the compelling reasons for transferring the petitioner before completion of his tenure – Transfer orders of all the four petitioners held not sustainable, being arbitrary and vitiated because the same are issued under dictation – Transfer orders quashed and set aside – Petitions accordingly allowed. [Paras 37 and 38]

2013 (3) SLC 1227 Chander Shekhar Vs State of HP

Transfer orders – Challenged – Held, transfer Order of Petitioner was not a case of exigency of service or in larger public interest and rather a politically motivated – Hence order not sustainable and hence quashed. [Para 7]

2013 (3) SCC 526 Kavi Raj Vs State of J&K

C. Service Law — Transfer of Employee/Service — Deputation — Prior consent of employee — Necessity of — Held, in absence of any statutory rule regarding the same, prior consent of employee before his deployment against post beyond his parent cadre, held, is not necessary — High Court erred in holding otherwise (Para 24)

2013 (2) HimLR 648 Amir Chand Vs State of HP

Transfer of employees – transfer policy framing of:- [81] In addition to the directions issued in the individual writ petitions, we are of the considered view that certain general directions are required to be issued. We have collated the various directions issued by us in different cases which have not been complied till today. After taking into consideration the entire scenario, we issue the following directions: 1. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are only two categories, i.e. tribal/hard areas and other areas. We have increasingly found that people who are sent to the hard/tribal areas find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C, D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A and the lowest category will be of the most difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in Category A. 2. After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every 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 posted from category A to any of the other three categories, but should not be again transferred to category A station. If after category A he is transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope for adjusting the favourites and all employees will be treated equally and there will be no heart burning between the employees. 3. We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but whenever such exception is made, a reasoned order must be passed why policy is not being followed. 4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representative do have a right to complain about the working of an official,but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint 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 elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the 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 shows 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. 6.We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments. 7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers.

2012 LawSuit(HP) 54 Pushpa Devi Thakur Vs State of HP

It is true that petitioner does not have any vested right of being accommodated at a particular place and petitioner has continued to be posted in Shimla for more than 23 years but in the peculiar facts and circumstances of the present case, I find that there is also nothing on record to justify petitioner’’s transfer without completion of her normal tenure at TT&R Shimla. It is not as though petitioner has been requesting for her adjustment at Shimla. It is not the case of the respondents that petitioner’’s transfer at Sirmaur would serve public cause/interest in a better, fruitful or more purposeful manner. As such, impugned orders qua the petitioner are quashed. Petitioner shall be allowed to complete her normal tenure of posting at TT&R Shimla, unless it is otherwise not warranted on account of any complaints etc.

2012 LawSuit(HP) 504 Alka Chakor Vs State of HP

Transfer of employees – Transfer Policy framing of – The Registrar General is directed to send a copy of this judgment to the Chief Secretary to the Government of Himachal Pradesh who shall file his affidavit on or before 31st October, 2012 informing us whether a policy in line of the observations made above, is formulated or not. If not, he will spell out the reasons for the same

2011(5) SLR 207 Shyam Singh Vs State of HP

Constitution of India, Articles 16 and 226 – Transfer – Tenure – Petitioner transferred when completed only one year and ten months service – As per the norm framed by the State, the petitioner was required to be permitted to discharge his duties as Head Teacher for three to five years at the present place of posting – It is for the State to decide where an incumbent should be posted – It is equally important that, once the norms have been framed, these should be applied judiciously in a transparent and fair manner – Respondents No. 1 to 3 directed to permit the petitioner to continue till the completion of his normal tenure. [Paras 6 and 7]

2011(2) SLC 283 Babita Thakur Vs State of HP

transfer cannot be used as an instrument to accommodate/adjust persons without there being any administrative exigency – Neither there was any public interest nor any administrative exigency demanding transfer of petitioner – Impugned order set aside

2011 (4) SLR 482 Babita Kumari Vs State of HP

Constitution of India, Articles 16 and 226 – Transfer – Petitioner, a JBT Teacher – Already served in hard area – Again transferred only after 1-1/2 years – Respondent suffering from Rheumatic Arthiritis with deformities and it was keeping in view her state of health that she has been adjusted – Directions issued to adjust the petitioner suitably by keeping in view that she had already served in hard area and has been shifted despite short stay only to adjust private respondent No.4, after affording an opportunity of being heard to both the petitioner and private respondent No.4. [Paras 3 and 4]

2011 (4) SLR 1 Kamlesh Chand Katna Vs State of HP

Transfer – Petitioner has aged parents and other members of the family to be looked after and is due to retire within 2 years – Person replacing him is posted only after promotion and giving a suitable accommodation – Petitioner may point out aspects before the first respondent within a period of ten days, in which case the first respondent will look into the matter and pass appropriate orders in accordance with law – In the meanwhile, petitioner may avail the leave of kind due and would not be compelled to join at the transferred station.

2011 (3) SLC 379 Pratap Singh Chauhan Vs State of HP

Transfer of Government servant at behest of politician – Interference under Article 226 – Scope – High Court should not interfere in matters of transfer unless shown to be mala-fide or violative of any statutory provision or passed by an incompetent authority – Where it is shown that, transfer made at behest of politicians and administrative department has not verified facts, then court would interfere to correct the situation – Public representatives cannot start interfering in the administration or the working of the Executive – Impugned order of transfer set aside. [Paras 17, 20 and 22]

-2011 (2) SLR 361-

Ranjeet Singh Vs State of HP-

Constitution of India, Articles 16 and 226 – Transfer – Petitioner and private respondent No. 4 transferred vice versa – Petitioner’s plea was that he was on verge of retirement – As per declared policy such person would be given place of his choice or would not be shifted Contention of respondent No. 4 is that her son is mentally retarded and is getting education in a special school for such children at a place of her re-transfer – Petitioner given three places of his choice for further posting – Respondent No. 2 directed for appropriate action. [Paras 1 to 4]

-2011 (2) LHLJ 1044-

Subhash Chand Vs State of HP-

Constitution of India 1950- Article 14 read with Para-7 of the Policy for transfer of teachers in Education Department (H.P.) – Service Law – Transfer- Quashed – Transfer from Solan to Lahul and Spiti – Transfer against policy – Misunderstanding between local MLA and Principal – Reason “exigencies of administration” but no detail – Relieving- Transfer without approval of competent Authority under transfer policy – Held: Transfer Policy does not create vested right in favour of employee but it is not a waste paper- It has been framed for adherence and not for violation. Transfer quashed.

-2011 (12) SCC 137-

High Court of Judicature of Madras Vs R Perachi-

Transfer is an incidence of service – judicial review scope is limited

-2011-

Gopal Krishan Vs State of HP-

6. Petitioner belongs to a disciplined force and in normal circumstances he should obey the orders of his superior officers. However, we cannot be oblivious that in a disciplined force also, the genuine difficulties faced by the police personnel should be redressed in a just and fair manner. Normally the scope of judicial review in transfer matters is very limited, but in the present case taking into consideration the fact that petitioner’s father is 96 years old and also the fact that the petitioner has not completed his normal tenure at the present place of posting, this Court has intervened in the present matter. Moreover, it is also a couple case.

-2010 (2) LHLJ 970-

Anuradha Garg Vs State of HP-

contract employees are not entitled for transfer as a right, so as to disturb the regularly appointed employee – Even when the regularly appointed employee has completed the normal tenure – Impugned order is set aside.

-2010 (1) SLC 69-

State of HP Vs LR Bhardwaj-

Transfer of employees – FR – Rule 15 – transfer outside of cadre

-2010-

Joginder Singh Vs Rajiv Sharma COPC No. 180 of 2010 Hon’ble Mr. Justice Kurian Joseph, Chief Justice Hon’ble Mr. Justice Kuldip Singh, Judge d/o 06.09.2010-

Transfer of employees – mid-academic session transfer – department should avoid transfer during middle of academic year – department should also ensure that in event of teachers being transferred, transferred teacher joins duty only when person occupying post is relieved

-2010-

Om Parkash Thakur Vs Dr. YS Parmar University of Horticulture and Forestry, Nauni 29.06.2010 CWP 1988 of 2010. Hon’ble Mr. Justice Surjit Singh, Judge.-

Transfer of employees – Transfer – Office Bearer of Association

-2009 (8) SCC 337-

Airports Authority of India Vs Rajeev Ratan Pandey-

Scope of judicial review is limited.

-2009 (3) SLC 206-

Sant Ram Pant Vs State of HP-

In the present case, there is no representation of Respondent No. 3 on record. He made no representation to his own Department. We are clearly of the view that if an employee is aggrieved by any action taken by the Department, his remedy is to approach the Department itself. The Conduct Rules clearly lay down that an employee can only make a representation to his own department that too by following the proper channel. He cannot directly approach the office of the Hon’ble Chief Minister or any other authority except his own administrative department. No employee has the right to approach a political representative for redressal of his grievances relating to his service conditions. This would amount to mis-conduct. Even if the decision with regard to the cancellation of transfer has to be taken at the level of the Hon’ble Chief Minister, the same should be taken after ascertaining the views of the administrative department. In Sushila Sharma’s case, we had clearly laid down that transfer orders should not be cancelled without making reference to the administrative department and giving it an opportunity to put-forth its views. This is necessary because the administrative department can then put-forth its view supported with reasons as to whether the order of transfer should be cancelled or not. Even if such guidelines have not been incorporated in the Policy we hereby direct that the said procedure should be followed in future. We may clarify that the public representatives have a right to complain against the working of any public servant. Even when a public representative or political functionary makes some complaint against a public servant and requests that he be transferred then also the views of the administrative department concerned must be ascertained. We are also of the considered opinion that though a public representative can make a complaint against a particular employee, he cannot suggest the name of any particular employee who should be brought in his place. This is a matter for the administrative department to decide keeping in the view the administrative exigencies and public interest.

-2009 (2) SCC 592-

Somesh Tiwari Vs UOI-

Transfer – on complaint – punitive

-2009 (15) SCC 178-

Rajendra Singh Vs State of UP-

Transfer of employee — Judicial review — Scope — Held, courts are always reluctant to interfere with transfer of an employee

-2009 (11) SCC 678-

Tushar D. Bhatt v. State of Gujarat-

Transfer is an incidence of service

-2009 (1) CurLJ 637-

LR Bhardwaj Vs State of HP-

Constitution of India – transfer – cancellation – public interest – petitioner must be allowed to complete tenure of three years Transfer – outside of cadre cannot be made without consent of employee

-2009-

Prem Singh Vs State of HP 09.07.2009 Hon’ble Mr. Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Civil Writ Petition (T) No. 3321 of 2008-

Transfer of employees – Service matter – Transfer – out of circle – Since the respondents have failed to give any justification whatsoever for transferring the petitioner outside his circle, the impugned order is arbitrary.

-2008 LIC (NOC) 191 (HP)-

Sushila Sharma Vs State of HP 27.08.2007 Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice VK Ahuja, Judge. CWP No. 1105 of 2006-

Constitution of India – Art. 16 Transfer of teachers — Made for extraneous reasons and without considering administrative exigencies and interest of students — Practice deprecated — Directions given to formulate transfer policy ensuring that transfer are made only on administrative grounds and to ensure that all 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.

-2008 (1) LHLJ 420-

Ajeet Singh Vs State of HP-

PTA appointee can be replaced by regular teacher on transfer

-2007 (8) SCC 150-

Masood Ahmad Vs State of UP-

Transfer by MLA

-2005 (2) LHLJ 1157-

Indu Mahajan Vs State of HP-

Transfer – transfer after short stay – employer while transferring an employee on request must be knowing the facts – once the employer has conceded to request of an employee to transfer to particular place the employer must allow the employee to complete at least one tenure at place of choice posting.

-2004 (7) SCC 405-

State of UP Vs Siya Ram-

Transfer – punitive – non-working place

-2004 (1) LHLJ 652-

Shobh Ram Vs State of HP-

Administrative Tribunal does not lose jurisdiction to consider the prayer for the grant of interim relief, on its merits and in accordance with law for staying the operation of the transfer order even if the petitioner indeed actually might have been relieved and the transfer order stood already implemented

-2003 (11) SCC 740-

Sarvesh Kumar Awasthi Vs UP Jal Nigam-

Transfer – politician – illegal

-2002 (9) SCC 203-

Krishan Kumar Vs State of Har-

Transfer – whether on request – held not

-1998 (3) SCC 303-

State of UP Vs Ashok Kumar Saxena-

Transfer – State can modify order

-1997 (10) SCC 297-

State Bank of Saurashtra Vs Vinod Chandra Shah-

Transfer – promotion – adjusted

-1995 SCC (L&S) 1243-

CGM Telecom Vs Jagdish Narain Kumar-

Transfer – by incompetent authority

-1995 (4) SCT 225-

State of Punjab Vs Joginder Singh Dhatt-

Constitution of India, Articles 311 and 226 – Transfer – Public servants – It is entirely for employer to decide when, where and at what point of time a public servant is to transferred – Court should not interfere – Transfer order passed purely on administrative grounds – In ordinary course and to prevent transferee from interfering with enquiry – Order not causing any injustice – Not liable to be set aside in writ jurisdiction. [Para 3]

-1994 Sup (2) SCC 666 –

Director Of School Education Vs O. Karuppa-

Mid-academic term transfer

-1994 Sup (2) SCC 51-

Damodar Mishra Vs State of Orissa-

Transfer – survival of cause of action even when employee is transferred – relieved

-1994 (6) SCC 98-

NK Singh Vs UOI-

Transfer – scope of judicial review. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfers, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all Government departments.

-1994 (2) SCC 416-

Ramesh Chander Tyagi Vs UOI-

Transfer order passed by an authority not competent

-1993 Sup (2) SCC 589 –

Raj Bala Vs Dy Dir Education-

directed to accommodate appellant teachers in institution in question as far as possible or in neighbouring districts if that is not possible

-1993 (4) SLR 349 –

Ramdhar Pandey Vs State Of UP-

If the public interest is absent, the order of transfer cannot be supported

-1993 (4) SCC 357 –

UOI Vs SL Abbas-

Transfer is guidelines and guidelines issued by Government do not confer upon Government employee legally enforceable right

-1993 (1) SCC 148 –

Rajinder Roy Vs UOI,-

It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances.

-1992 Sup (2) SCC 433-

Sreemathi Devi Vs UOI-

Transfer – widow accommodated

-1992 (1) SCC 306 –

Bank Of India Vs Jagjit Singh-

Posting of HUSBAND and wife at same station cannot be claimed as of right

-1991 Sup (2) SCC 659-

Shilpi Bose Vs State of Bihar-

Transfer – on request – challenge by affected employee

-1989 Sup (1) SCC 679-

JNU Vs KS Jawatkar-

Transfer – deputation – consent necessary

-1989 (3) SCC 445-

UOI Vs HS Kirtania-

Transfer – malafide to be shown – court cannot interfere

-1986 (4) SCC 131 –

B Vardha Rao Vs State Of Knt,-

FREQUENT TRANSFERS

-1986 (2) CurCC 806 (HP) –

KJ Samuel-

Retirement two years

-1984 (Sup) SCC 413 –

State Of UP V. Jagdeo Singh-

Police Act, 1861 – Section 7(d) – Clause (d) of s. 7 speaks of the punishment of removal from any office of “special emolument” – Respondent working as a Station House Officer, is entitled to a special emoluments of Rs. 15 per month while he is in charge of a police station – But the respondent was transferred as a Second Officer on the ground of negligence in the discharge of his duties – Held, provisions of s. 7(d) of the Police Act, 5 of 1861, are therefore attracted –

-1981 (2) SCC 72-

Shanti Kumari Vs Regional Deputy Director-

Authorities ordering transfer of employees are bound to act in a reasonable manner and any complaint of unreasonableness must be considered by the authority superior to that which orders transfer

-1979 (4) SCC 673-

KB Shukla Vs UOI-

Transfer – appointment by transfer

-1979 (2) SCC 491-

SR Venktaramana Vs UOI-

Malafide transfers – order of transfer should be issued in bonafide exercise of administrative power, in public interest, in exigencies of administrative and requirements of public interest – transfer on account of weight of patrons is invalid. It is however, not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. MALICE – malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for reasonable or probable cause. DISCRETION – exercise of discretionary powers for unauthorised purpose is bad.. MALICE – an administrative order which is based on reasons of fact which do not exist must be held to be infected with the abuse of power.

-1964 WLR 702/707 –

Merricks Vs Nett Bower-

It is well known principle of our law that any power conferred by statute or regulation of an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an ulterior purpose. Whether that principles applies here or not, I do not say, all I do say is that if the plaintiff allege, as they do, that this was a misuse of the power of transfer, that it was used, not for the purpose of good administration and efficiency but for the motives of punishment they have an arguable case which they are entitled to have tried by the courts

-1950 1 KB 636 –

Philling Vs Abergele Urban District Council-

Where a duty to determine a question is conferred on an authority which state that reasons for the decision and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to make matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.

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