‘Use of transfers and postings as a means of coercion and harassment of honest officers is a well-known phenomenon.[1]’Job transfers are a huge matter for governments and their employees, a source of constant worry for employees and apparent satisfaction for governments. The most obvious reason is that governments tend to wield the matter of transfers cynically, as a tool for punishment, injecting an element of unpredictability into an official’s career. Several officers, mostly honest officers, have faced the brunt of political furor. For instance, An official named Pradeep Kasni was transferred 71 times in a 34-year career, Ashok Khemka 53 times in 28 years, Vineet Chaudhari comes in next with 52 times in a 31-year career, followed by Winston Mark Simon Pariat with 50 transfers in 36 years, followed by Ashok Khemka at 46 times. Sometimes, such harassment even has claimed life. For instance, tired by frequent transfer and harassment by seniors, Rahul Dixit, district employment officer in Udaipur, claimed his life. He was depressed over 18 transfers in a 20-year career.

High Court asks Haryana department explain 14 transfers

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Similar harassment by frequent transfers is happening with Arvind Balyan, executive officer of Municipal Corporation in Narwana. Recently, he has been transferred to Sirsa, within 46 days of the previous transfer. He challenged the decision in Punjab and Haryana High Court.  The High Court has asked the Haryana government to explain each of the 14 transfers of a senior officer of the Haryana urban local bodies department, the most recent one being after 41 days. Acting on the officer’s plea against his transfers in quick succession, the High Court also stayed the transfer of the officer, Arvind Balyan, from the post of executive officer, Narwana municipal council (MC) to Sirsa.

Facts in Brief:

  • Arvind Balyan, the Petitioner, is an executive officer at Municipal Corporation, Narwana.
  • On March 16, 2020, Department of urban, local bodies Haryana passed an order to transfer him to Municipal Corporation, Sirsa.
  • Petitioner challenged this order in the Punjab and Haryana High Court. It has been argued by the petitioner that he has been transferred 14 times in the last seven years. This time, he shifted from the post of executive officer MC Narwana to MC Sirsa within 41 days of his previous transfer.

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  • According to the petitioner, he was doing his work with honesty, and this habit of the petitioner is not acceptable to some of the officers of his Department. Due to which they are not allowing him to work in one place for more than an average of six months.
  • It was further submitted that the order had been issued arbitrarily, and this is reflected from the fact that the post, from which the petitioner has been dislocated, is still lying vacant and has been sought to be managed by giving an additional charge to another official.
  • The petitioner also said he is unable to join duties at Sirsa due to medical issues. The officer had made a representation to his Department, but the Department took no action, and then he decided to move the HC.

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Legal Standpoint:

 In Union of India v. H.N. Kirtania, 1989(3) SCC 447the Hon’ble Apex Court observed as under:-

“Transfer of a public servant made on administrative grounds or in the 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 ground of malafide.”

In Union Of India AndOrs vs. Sri JanardhanDebanath And Anr, AISLJ 2004 (2) SC 446,the Supreme Court held that the issue of transfer and posting had been considered a time and again by the Apex Court and entire law has been settled by a catena of decisions. It is entirely upon the competent authority to decide when, where, and at what point of time a public servant is to be transferred from his present posting. The transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place.

In Gujarat Electricity Board v. AtmaramSungomalPoshani,1989 SCR (2) 357, the Hon’ble Supreme Court has observed as under:-

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“Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to another is an incident of service. No Government servant or employee of the public undertaking has a legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service, and the employee has no choice in the matter. Transfer from one place to other is necessary for public interest and efficiency in the public administration.”

 In Union of India v. S.L. Abbas, 1993 SCR (3) 427, the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.

In-State Bank of India v. AnjanSanyal, (2001) 5 SCC 508, the Apex Court held as under:-

“An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in the exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.”

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In Netai Bag and Ors. v. State of W.B. and Ors, (2000) 8 SCC 262, it was held by the Supreme Court that there has to be substantial and convincing evidence to establish the allegations of mala fide specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favor of the bona fides of the order unless contradicted by acceptable material.

The Hon’ble Supreme Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam, (2003) 11 SCC 740,held as under:-

“In our view, the transfer of officers is required to be effected based on set norms or guidelines. The power of transferring an officer cannot be wielded with mala fide intention or an exercise against an efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration, the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.”

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Analysis:

It can be drawn from cases, as mentioned earlier, that courts have been reluctant to interfere in transfer orders as decided by the government unless there is mala fide intention or violation of statutory provisions. In this case, the petitioner has not invoked either of exceptions, i.e., mala fide intention or violation of statutory intention, but has argued that his transfer is arbitrary. He argued that this is reflected from the fact that the post, from which the petitioner has been dislocated, is still lying vacant and has been sought to be managed by giving an additional charge to another official.In simple words, the petitioner wanted an explanation for his transfer. The Honorable High Court took cognizance of same and ordered that “Respondent no-1 (additional chief secretary (ACS), department of urban, local bodies Haryana) shall file his/her personal affidavit; explaining the reason for each one of the 14 transfer orders passed against the petitioner,” The High Court has also issued notice to the ACS, Department of local bodies Haryana, and the director local bodies department, seeking their replies on the contentions raised by the officer in his plea.

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For case specific advice consults with service Law subject matter expert and gets professional Legal advice from Top High Court Service lawyer in Chandigarh Panchkula Mohali. Kharar Derabassi Zirakpur

This post is written by Gourav Kathuria

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