The Himachal Pradesh High Court on Monday reiterated that orders relating to transfer of Government employees have to be passed keeping in view the "administrative exigency" and taking into consideration the "public interest".
Further, such orders have to necessarily be passed by after the administrative authority after due application of mind, and elected representatives (such as MLAs) cannot have a right to claim that a particular employee should be posted at a particular station.
To ensure that the all the 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, the Division Bench comprising Justices Tarlok Singh Chauhan and Jyotsna Rewal Dua suggested the following mechanism:
"In case such a policy is followed, there will be no scope for adjusting the favorites and all employees will be treated equally and there will be no heart burning between the employees," the Court said.
It has also clarified that if a particular employee cannot be posted to a particular region due to some personal hardships, an exception can be made. However, whenever such exception is made, a reasoned order must be passed why policy is not being followed.
The detailed observations have come in a writ petition moved by one Lekh Raj, against an order relating to transfer of 7 employees, passed at the behest of an MLA. In the facts of the case, a sitting MLA of Sirmour District addressed a letter to the Chief Minister, proposing to transfer 7 employees. The same was approved by the CM, without even consulting the administrative authority.
Taking exception to employment of "political patronage" in the matters of transfer, the Bench reiterated that the Chief Minister and Ministers/ elected representatives may only "recommend" the transfer of an employee (See Sanjay Kumar v. State of HP & Ors., HLJ 2013 (HP) 1051).
"The transfer orders are ultimately to be issued by the Administrative head after independent application of mind that too after subjective satisfaction without being influenced by the recommendations so made by the elected representatives.
…elected representatives cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by administrative head i.e. Executive and not by the legislators. Where an employee is to be posted must be decided by the administration," it held.
Case Title: Lekh Raj v. State of Himachal Pradesh & Ors.
Case No.: CWP No. 2621/2020
Quorum: Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua
Appearance: Senior Advocate Bimal Gupta with Advocate Kusum Chaudhary (for Petitioner); Advocate General Ashok Sharma with Additional Advocates General Ranjan Sharma and Vinod Thakur and Deputy Advocate General Seema Sharma (for State)
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