Himachal Pradesh High Court curbs CMs arbitrary transfer powers

Shimla: The Himachal Pradesh High Court curbed the chief ministers arbitrary powers of transferring employees made   “at the instance of a person, who has no role to play in the government” and quashed the chief ministers orders to transfer four employees, who had petitioned the court challenging the governments directives.

The four petitions moved before the court had pleaded that the state had not applied a fair method in transferring them and the transfers had not been carried out in public interest but had been done with political manipulation.

One of the petitioners, Sanjay Kumar had even pointed out that whereas some work inspectors in the HPPWD Dharampur division had completed 15 years of service in one division only but he had been transferred 400 Kms away at Sangrah in Sirmaur  at the behest one Chandershekher, under political pressure after a stay on 2 years and 10 months. Himachal High Court

Chandershekher is identified as a politician, who as a candidate of a political party lost in the last assembly elections. The petitioner also let the court know that 400 transfers had been made at the behest of the politician.

The court comprising of Chief Justice AM Khanwilkar and Justice Kuldip Singh after examining the records noted, “it is substantiated by official record.”

Defending the government, the advocate general let the court know that “an employee has not vested right to serve at a particular place. The employer has every right to transfer an employee in public interest or on administrative grounds”

Once chief minister of the state, being the head and final authority in the hierarchy, after due application of mind, orders transfer of any employee then such employee is bound to serve the state at the place where he has been transferred,  the advocate general told the court.

Not agree with the government lawyer’s argument, the judges pulled out the judgment in Amir Chand vs State of HP & others delivered on 9th January, 2013 to point out “no transfer should be made at the behest of party workers.”

The landmark judgment upheld by the Supreme Court had decreed that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments.

The court in the said order had directed the state that “No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken.”

Writing for the bench Justice Kuldip Singh observes, “The transfer at the instance of a person, who has no role to play in the Government, will not only be extraneous consideration, but also against public policy. It shakes the confidence of the people and creates an impression in the mind of a common man that the centre of power is somewhere else and not the Government.”

“There is, however, one caveat. That, any person has a right to make a complaint against an employee regarding his conduct to his superior or Chief Minster and even request for his transfer. It is, however, only for the competent authority to consider the request and to take appropriate action in accordance with law,” the judge recorded.

Before quashing the four transfer orders the court noted “On perusal of the original record, it is noticed that the proposal for transfer has not originated from the concerned Administrative Department, but because of the direction received from the office of the Chief Minister.”

“Thus in the facts and circumstances which have come on record in all the petitions, the impugned transfer orders of all the four petitioners are not sustainable, being arbitrary and vitiated because the same are issued under dictation,” the judges concluded.

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