Differentiating Employees For Transfer On Age Basis Reasonable; Elder Ones Have Family Responsibility, Health Issues: Punjab & Haryana HC

The Punjab and Haryana High Court has upheld the Online Transfer Policy, 2023 of Haryana Government for State Agriculture Marketing Board, challenged under Article 14 of the Constitution on various grounds including that the elderly employees are given preference for favourable transfers.Justice Jagmohan Bansal said, "The respondent has formed an opinion that employees with higher age should be given preference. They certainly have better experience but more family responsibilities and health issues. This classification is not going to affect young employees because at later stage of their life, they are also going to be benefited."The plea was filed by Sub-Divisional Engineers (Civil) ('SDE') working with the respondent-Haryana State Agriculture Marketing Board. They challenged ged the Online Transfer Policy dated 15.06.2023, which was also approved by the Chief Minister.Advocate for the petitioners submitted that as per impugned policy, the respondent has laid down criteria for calculation of score. On the basis of score, an employee is posted at a particular place. 60 marks are earmarked for age; higher the age, higher the marks; resultantly, the younger employees are not likely to get posting of their choice. There are 5 marks for couple case. The marks are confined to spouses working in any Department, Board or Corporation under any State Government or Government of India. There are many employees whose spouses are working with non-government organizations, thus, they are not entitled to marks under the said criteria. The respondent has prescribed maximum 3 years stay at a particular place. No employee can stay more than six years in one Market Committee and more than eight years in one Division/Circle Office, he added.It was further submitted that there are negative marks for negative performance. Once an employee has been departmentally punished for his act and omission, he cannot be subjected to negative marking because it would amount to double jeopardy.After hearing the submissions, the Court opined that it is a settled proposition of law that scope of interference in policy matters is very limited and persons who are making policy are more competent to know need of the people as well as need of the organization.Rejecting the petitioner's contention the Court opined that, "the respondent has earmarked 60 marks for age factor. Higher the age, higher the marks. The petitioners are claiming that younger employees would get lower marks, thus, they would not get posting of their choice. Every employee who is working with respondent is bound to retire on attaining the age of superannuation i.e. 58 years. Every employee is bound to grow and turn 50 plus. The respondent as per its wisdom has made classification which seems to be just and fair."Justice Bansal also rejected the contention that negative marking amounts to double jeopardy."The respondent has prescribed -5 (minus five) marks for minor penalties and -10 (minus ten) for major penalties. Posting at a place other than place of choice cannot be treated as punishment in terms of Article 20(2) of Constitution of India. The contention of the petitioner is misconceived," the Court added.The bench observed that a person who has been subjected to major penalty cannot claim that he should be given place of posting of his choice. The employer has every right to post him at non-sensitive place.The Court further said that, "Transfer is an integral part of service. Every employer has right to frame its policy. In the absence of policy, the employer has a right to place its employees as per its choice. The respondent by making impugned policy rather has attempted to create an atmosphere of transparency. In the absence of policy, the persons sitting at the helm of the affairs may post employees as per their discretion which is always prejudicial to particular set of employees."It concluded that The petitioners have neither fundamental nor vested right to claim that they should not be transferred or posted as per their choice. There is nothing unreasonable or arbitrary in the impugned policy which can be called as violative of Article 14 of the Constitution of India.Observing that the policy could be violative of Article 14, had it been made applicable to few of the employees whereas it is applicable to all the officers, the Court said that thus, "petitioners have no right to claim that policy is violative of Article 14 of the Constitution of India."In the light of the above, the plea was dismissed.Mr. Sajjan Singh, Advocate and Mr. Vishal Punia, Advocate for the petitionersMs. Shruti Jain Goyal, Senior Deputy Advocate General, HaryanaMr. B.R. Mahajan, Senior Advocate with Ms. Nikita Goel, Advocatefor respondent-Haryana State Agriculture Marketing Board (in CWP-25754-2023 & CWP-2499-2024)Mr. Samarth Sagar, Advocate for respondent-Haryana State Agriculture Marketing Board (in CWP-1150-2024 & CWP-1689-2024)Title: Gaurav Wadhwa and others v. State of Haryana and...

Differentiating Employees For Transfer On Age Basis Reasonable; Elder Ones Have Family Responsibility, Health Issues: Punjab & Haryana HC

Aiman J. Chishti

Tags