27 Aug 2020 5:07 AM GMT
The Himachal Pradesh High Court on Wednesday (26th August) observed that if the employee has been transferred in order to adjust particular persons with no reasonable basis, then such type of transfers can be termed as "mala fide one" and would normally be liable to be quashed.A division bench comprising Justices Tarlok Singh Chauhan & Jyotsna Rewal Dua observed,"Because of the cartel...
The Himachal Pradesh High Court on Wednesday (26th August) observed that if the employee has been transferred in order to adjust particular persons with no reasonable basis, then such type of transfers can be termed as "mala fide one" and would normally be liable to be quashed.
A division bench comprising Justices Tarlok Singh Chauhan & Jyotsna Rewal Dua observed,
"Because of the cartel created by a few of the employees serving in the urban and semi-urban areas of Himachal Pradesh, the influential employees manage to secure their postings in and around urban areas, leaving practically no room for the other employees."
The background of the case
The petitioner is a Lecturer (English), who joined Government Senior Secondary School, Sanjauli, on 16.08.2017 and was thereafter ordered to be transferred the vice private respondent vide order dated 23.01.2020 and being aggrieved thereby, she filed the instant petition that the impugned transfer order dated 23.01.2020 may kindly be quashed and set aside.
It was argued by the Advocate for the petitioner, that the order of transfer is not sustainable, as it has been passed "on extraneous consideration and with mala fide intention to simply adjust private respondent No.3", who at her own request had been posted at GSSS, Theog in July 2019 and after short stay of six months, on 01.01.2020, on the basis of D.O. note No. 199274, got herself transferred back to GSSS, Sanjauli, dislodging the petitioner.
On the other hand, the stand of the official respondents is that the petitioner was transferred vice private respondent No. 3, with the prior approval of the competent authority, on the medical ground of respondent No. 3.
The question of mala fide in cases of transfer
While referring to various Judgments delivered by the Supreme Court, the High Court in the present matter came to the conclusion that, on mala fide, it can be said that the principal test of a due and proper exercise of the power is to ask the question: Was the transfer made for real administrative exigency?
The Court further observed that in finding the answer, the Court might have to pierce the veil of the transfer order and see what the operative reason was for the transfer.
If the findings reveal a nexus with administrative necessity, the exercise of the power will be upheld. If however, the court noted, the operative reason has no such nexus then the transfer will be vulnerable.
The court's observation
The court was of the view that respondent No. 3 was entitled to set-forth her grievance including the medical problems to her higher authorities and seek transfer and it was for the authorities, in turn, to accede or not to such request, but under no circumstances, respondent No. 3 could have exercised an external influence to have transfer affected.
The bench further remarked that it didn't think that the request made by the respondent No. 3 was genuine and bonafide.
Significantly, the court observed that off late, the Himachal Pradesh High Court has seen a surge in litigation relating to transfer matters.
The bench was of the view that the State of Himachal Pradesh, unlike other States, is not evenly or uniformly developed in matters of basic infrastructure like education, health services etc.
In this context, the court said,
"It is for this reason and rightly so that every employee tries to make an endeavour to seek posting in the district or tehsil headquarters where the infrastructure is relatively well developed. Most of these migrations in urban areas are directly related to the education of children and thereafter it could be for other purposes like better health facilities etc."
In the present matter, the court remarked,
"The instant case is one such classic example, which reflects the modus operandi being resorted to by these teachers on completion of their tenure by seeking mutual transfer or creating artificial vacancies and thereafter getting each one adjusted in such vacancies."
Suggestions given to the Authorities
The court said that the respondents (official authorities) are not only duty-bound but are mandated by law to ensure that no monopoly in the matters of transfers is created in favour of selected few.
The court suggested that the State is required to adopt a fair and transparent policy of transfer by calling for the details of all the teachers whose children are to appear in the Board exam or examination for professional courses like MBBS, AIEEE etc.
The court was of the view that this would not only bring about an end to the monopoly created in favour of few teachers but would also ensure benefit to the student community as a whole.
The court said that the action of the State must be reasonable, fair, just and transparent and not arbitrary, fanciful or unjust. The right to fair treatment is an essential ingredient of justice.
Most importantly, the bench said,
"The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16 of the Constitution. It also means that the State should not exploit its employees nor should it seek to take advantage of their helplessness and misery. As is often said, the State must be a 'model employer'." (emphasis supplied)
The Court's verdict in the present case
The court took note of the fact that the petitioner as also the third respondent hold a State Cadre Post, yet the petitioner has not been posted outside the district and has rather served in and around Shimla in her entire service career.
The court further observed that the case of respondent No. 3 is also not different.
In this context the court noted,
"Obviously, these postings, both in the case of the petitioner as also respondent No. 3, could not have been possible without the active support of the official respondents."
In conclusion, even though the court found the transfer of the petitioner to be mala fide as it had been made in order to adjust the third respondent with no reasonable basis, but the court categorically stated that "this wouldn't mean that the petitioner would be entitled to be retained at GSSS Sanjauli."
Most importantly, the bench remarked,
"Granting indulgence to any of the parties, in this case, would be causing manifest injustice to other teachers who are desirous of serving in Shimla and other district and tehsil headquarters but have failed mainly because of the cartel formed by influential teachers like the parties in the instant case."
The bench concluded by saying that in the given facts and circumstances of the case as discussed above, neither the petitioner nor the third respondent deserve to be posted in their home district.
Lastly, the bench remarked,
"Before parting, we hope and trust that the respondents would take all requisite steps to break the cartel and as far as possible ensure that maximum number of teachers, especially those whose children are to appear in the Board examination and examination for professional courses are afforded an opportunity to serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate bandwidth, the facility of tuition etc. are available."
Case Title: Sheela Suryavanshi v. State of H.P. & Ors.
Case No.: CWP No. 511 of 2020
Quorum: Justices Tarlok Singh Chauhan & Jyotsna Rewal Dua
Appearance: Advocate Ram Murti Bisht (for Petitioner); Advocate General Ashok Sharma, with Addl. A.Gs. Ranjan & Vinod Thakur, and Dy.A.G Svaneel Jaswal (for respondents No. 1 and 2-State); Advocate Vinod Chauhan (for respondent No. 3)
Click Here To Download Order