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SATYEN VAIDYA, J. –

Petitioner has assailed office order dated 14.3.2024 (Annexure P-4), whereby the petitioner has been ordered to be transferred from GSSS Langna, District Mandi to GSSS Goshaini, District Kullu vice respondent No.3.

2. Petitioner has assailed the impugned transfer order on two grounds, firstly that the petitioner is an ANO (Assistant NCC Officer) and has been transferred to a school where the NCC is not available and secondly, the transfer has been effected on a D.O. Note to accommodate respondent No.3.

3. Respondent-State has placed on record instructions dated 23.4.2024, according to which, the petitioner has remained posted at GSSS, Langna since 6.4.2015 and has joined at GSSS Goshaini on 19.3.2024. It has also been confirmed that no student has been enrolled in NCC at GSSS Goshaini.

4. Private respondent has also filed the reply. It has been averred that no right of the petitioner has been infringed by the impugned transfer order. The fact that petitioner has already spent about nine years in one school i.e. GSSS Langna has also been highlighted.

5. During the pendency of the petition, petitioner has placed on record a copy of U.O. Note No. 113237 dated 4.3.2024, issued from the office of the Hon’ble Chief Minister, recommending the transfer of respondent No.3 by condoning the short stay, if any, from GSSS Goshaini, District Kullu to GSSS Langna against longer stayee. It is alleged by the petitioner that the said U.O. Note has been issued on the basis of a D.O. Note, issued by a Member of Legislative Assembly of some other assembly constituency.

6. I have heard the learned counsel for the parties and have also gone through the record carefully.

7. At the time of hearing of the petition, learned counsel for the petitioner has given up, the transfer of petitioner to a non NCC school as ground of challenge. He has confined his arguments only to the extent that the impugned transfer order is bad in law as the same has been issued on the basis of a D.O. Note of an MLA, who has been elected from a different assembly constituency than to which, the petitioner has been ordered to be transferred.

8. Learned counsel for the petitioner has placed reliance on the judgment passed by the Division Benches of this Court in CWP No. 152 of 2020, titled as, Bishamber Lal vs. State of H.P. & another, decided on 30.9.2020 and in CWP No. 2862 of 2021, titled as, Vipender Kalta vs. State of H.P. & others, decided on 20.7.2021

9. The fact that the petitioner has remained posted in GSSS Langna, District Mandi for nine years has not been disputed. That being so, petitioner cannot have any ground to raise grievance against the impugned transfer order as held by the Division Bench of this Court in CWP No. 2624 of 2020, titled as, Shabnam vs. State of H.P. & others, decided on 18.9.2020 as under:-

“We have heard learned counsel for the parties. It remains undisputed that prior to the present transfer, petitioner had served in the previous station for more than three years i.e. w.e.f. 9.2.2017. The Transfer Policy also provides that a normal tenure at a station would be three years. The grievance of the petitioner is that she has been transferred on a D.O. Note issued by the fourth respondent, who is a MLA. Once, the employee has completed her normal tenure, it is none of her concern that on what basis the transfer order came into effect.”

10. Noticeably, petitioner has not alleged any malafide against the Member of Legislative Assembly, who has allegedly issued the D.O. Note in favour of respondent No.3.

11. Sri Pubi Lombi vs. The State of Arunachal Pradesh & others, 2024 SCC online SC 279, the Hon’ble Supreme Court has held as under:-

“9. In the case of Union of India and others v. S.L. Abbas; (1993) 4 SCC 357, it is clearly observed by this Court that the scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide, non-observation of executive instructions does not confer a legally enforceable right to an employee holding a transferable post. The relevant paragraph reads as under:

“7. Who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject……..”

9.1 Further, following the footsteps of S.L. Abbas (supra) this Court in the case of Union of India and another v. N.P. Thomas; 1993 Supp (1) SCC 704 held that the interference by the Court in an order of transfer on the instance of an employee holding a transferrable post without any violation of statutory provision is not permissible.

9.2 This Court further curtailed the scope of judicial review in the case of N.K. Singh v. Union of India and others; (1994) 6 SCC 98 holding that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to public interest. It was further reiterated that interference is only justified in a case of malafide or infraction of any professed norm or principle. Moreover, in the cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference to the transfer must be eschewed. It is further held that the evidence requires to prove such transfer is prejudicial and in absence thereof interference is not warranted. The law reiterated by this Court is reproduced, in following words: -

“9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.

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“23. …….Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.”

“24. …Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised.”

9.3 The issue involved in the present case is somewhat similar in the case of Mohd. Masood Ahmad v. State of U.P. and others; (2007) 8 SCC 150 wherein this Court in paragraph 8 has observed as thus: -

“8. ….. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee……”

9.4 It is not tangential to mention that this Court in the case of State of Punjab v. Joginder Singh Dhatt; AIR 1993 SC 2486 observed as thus: -

“3……..It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting………”

9.5 It is also imperative to refer the judgment of this Court in the case of Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and Ors.; (2013) 1 SCC 524 where it reiterated one of the pertinent principles of administrative law is that when allegations of malafide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. The relevant excerpt is reproduced as thus:

“27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned……..”

10. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.

11. On examining the facts of the present case, it is apparent that respondent No. 5 herein was transferred from the Government Higher Secondary School (GHSS) Kanubari, Longding district to Leparada as Deputy Director of School Education (DDSE) vide order dated 15.11.2022 and was directed to join in the last part of April, 2023. The UO Note dated 28.02.2023 has been written by the MLA specifying the administrative exigency and public interest in posting the appellant on the post of DDSE, Leparada. The said UO Note has been examined and competent authority has exercised its discretion in favour of the appellant, and the respondent No. 5 herein has been retained on the same post in the same district in same status which he was holding prior to order of transfer dated 15.11.2022 un-affecting his salary. Besides, it is also averred by the State that the modified order dated 20.04.2023 was passed prior to effective period during which respondent no. 5 was directed to join i.e., in the last part of April, 2023.

12. As per the counter affidavit filed by the State Government, even before us it is specifically averred that the order of transfer dated 20.04.2023 modifying the previous order dated 15.11.2022 has been issued in public interest after due application of mind and without any malafide intentions. As far as the stance of respondent no. 5 herein is concerned, the plea of malafide against transferring authority has not been agitated even before this Court or the High Court. Further, the impugned transfer order is also not alleged to be violative of any prescribed statutory provision.

13. In view of the stand taken by the Government and in absence of plea of malafide and no averment regarding violation of statutory provision taken by the private respondent before the High Court, interference as made by the Division Bench setting aside the well reasoned judgment of the Single Judge is not justified merely on the unsubstantiated pretext that the proposed modification is arbitrary or without application of mind for the sole reason that it was mooted by the MLA. In our view the Division Bench has committed an error in setting aside the judgment of the learned Single Judge.

14. Accordingly, the Civil Appeal is hereby allowed, the judgment and order dated 22.09.2023 passed by the Division Bench of the High Court is hereby set aside, restoring the order dated 11.07.2023 of the learned Single Judge. Pending application(s), if any, shall stand disposed of.”

12. Petitioner has not been able to show that the administrative department has not dealt with the proposal to transfer the private respondent and hence, the petitioner cannot claim the benefit of the judgment passed by the Division Bench of this Court in Bishamber Lal’s case (supra).

13. Similarly, the judgment in Vipender Kalta vs. State of H.P. & others passed by a Division Bench of this Court will not help the cause of the petitioner as in the instant case, the D.O. Note cannot be said to have been issued by an extra constitutional authority.

14. In CWP No. 567 of 2020, titled as, Kailash Chand vs. State of H.P. & another, a Division Bench of this Court has held as under:-

“9. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other.

15. In S.K. Nausad Rahaman and others vs. Union of India and others, Civil Appeal No. 1243 of 2022, decided on 10th March, 2022, the Hon’ble Supreme Court has held as under:-

“24. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

25. First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.”

16. In Mohd. Masood Ahmad vs. State of U.P. & Others, (2008)1 SCC 180, the Hon’ble Supreme Court has held as under:-

“7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 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 orders, were not competent to pass the orders.”

17. On analysis of available facts and above exposition of law, no case for interference in exercise of powers under Article 226 of the Constitution of India is made out. Accordingly, the petition is dismissed. Pending applications, if any, also stand disposed of.

Petition dismissed.

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