Modus Operandi Used For Transfer Of Employees Of State Government Must Establish Application Of Mind: Himachal Pradesh HC

The Himachal Pradesh High Court while dealing with an alleged arbitrary transfer order of the petitioner serving in the District Institute of Education Training (DIET), Nahan, reiterated that the MLAs did have the right to make recommendations but these recommendations could not be taken to be the final word.

The underlying principle for transfer was public interest or administrative exigency, which could be made out only from the reasons assigned for the transfer by the Administrative Department, clarified the High Court.

The Division Bench of Justice Tarlok Singh Chauhan and Justice Satyen Vaidya observed that “From a perusal of the norms for the employees of DIET notified by the Government of Himachal Pradesh, it is revealed that not only the fixed tenure for Principals and Lecturers has been prescribed, but there is also a specific reference to the centralized selection process for induction of employees in the DIET. Petitioner was posted as District Project Officer-cum-Principal, DIET in November 2019 based on his transfer from GSSS Mehando-Bag, District Sirmaur, where he was posted as Principal. Thus, in the case of the petitioner, no selection process was undertaken and in such view of the matter, the petitioner cannot be allowed to take the benefit of only that norm which suits him by ignoring all other aspects”.

Advocate K.B. Khajuria appeared for the Petitioner, whereas Advocate General Anup Rattan appeared for the Respondent.

In the present case, the petitioner by way of an impugned notification, had been ordered to be transferred from DIET Nahan (SMR) to GSSS Jaihar (SMR) and the third respondent had been ordered to be transferred from GSSS Dadahu (SMR) to DIET Nahan. The petitioner had taken exception to the impugned transfer notification on the ground that the same was neither for any administrative exigency nor in the public interest, rather had been affected only to accommodate the third respondent at the instance of local MLA (fourth respondent). It was the case of the petitioner that his transfer violated the norms fixed by the Government of Himachal Pradesh for the personnel serving DIET, which prescribed minimum 5 years tenure for the principal.

After considering the submission, the Bench noted from the contents of the D.O. note issued by the fourth respondent where he had made a specific recommendation to transfer the third respondent to DIET, and that this recommendation was dealt with by the Administrative Department by applying independent mind.

The Bench observed that such a modus operandi used for the transfer of employees of the State Government had earlier also met with strong disapproval of the Court more than once.

The Bench remarked that despite the enunciation of principles and their reiteration through various decisions of the Supreme Court, nothing seemed to have changed for official respondents.

“In the instant case also, no independent decision has been taken by the administrative department, rather, there was no scope left for said purpose as the proposal and recommendations made by the local MLA were categorical. In such circumstances, our Constitutional obligation does not allow us to sit as silent spectators. We are constrained to observe that the arrogance of official respondents and even the concerned public representative towards the judicial dictum rendered by the Constitutional Court is not in line with the Constitutional scheme of governance”, added the Bench.

The High Court stated that on the grounds on which notification had been held to be unsustainable as regards the transfer of the third respondent, the same would apply to the petitioner also, who himself had not only been the recipient of the D.O. Note for managing his posting as Principal, DIET in November 2019, he had also not undergone the required selection process for the post of Principal, DIET, Nahan.

“Petitioner cannot have a different yardstick for himself than what he intends to apply against others”, added the Court.

In view thereof, the High Court quashed the notification dated Feb 28, 2023, to the extent it related to the third respondent with direction to official respondents to take a decision on his transfer, if required, by considering the parameters of public interest or exigency of service administratively.

Cause Title: Rishi Pal Sharma v. State of H.P.

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