The Himachal Pradesh High Court on Wednesday held that elected representatives cannot have a right to claim that a particular employee be posted at a particular station, and that the choice is to be made by administrative head and not by the legislators.
The moot question posed here was that the orders of transfer are proposed (generated), processed and also finally implemented by the Minister himself, leaving little or virtually no scope for any discretion or independent decision of the administrative department.
"Adverting to the facts of the case, it would be noticed that the Minister In-charge not only desired and recommended the transfer of five persons, but also specified the stations where they were to be transferred...", noted the division bench. "The Chief Minister and Ministers/elected representatives may recommend the transfer of an employee, however, the transfer orders are ultimately to be issued by the Administrative head after independent application of mind, and that too after subjective satisfaction without being influenced by the recommendations so made...", reflected the HC, continuing that, "In the instant case, there was no independent decision taken by the Administrative Head rather there was no scope left for the said purpose and, therefore, the decision has been rendered vulnerable as being influenced by the proposal and recommendations made by the Minister concerned".
The court reiterated that the Members of the Legislative Assembly or the Minister concerned have a right to make a recommendation but these recommendations cannot be taken to be the final word- "The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent the present case...What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and / or public interest or that the transfer of employee is necessary for the effective utilization of his/her services"
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