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Transfer orders are to be issued by the Administrative head after independent application of mind: High Court of Himachal Pradesh

Whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MP/MLA, then before ordering the transfer, the views of the administrative department must be ascertained, and only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in the matters of transfer. This was held in Brij Lal Thakur v. Himachal Pradesh State Electricity Board Ltd. & Anr. [CWP No. 2427 of 2021] in the High Court of Himachal Pradesh by the division bench consisting of  Justice Tarlok Singh Chauhan, and Justice Chander Bhusan Barowalia.

Facts are the State Government vide its notification dated decided to impose a complete ban on transfers and directed that no transfer or adjustment shall be ordered by the Departments/Boards/ Corporations/Universities during the ban period except in rarest of the rare cases that too with the prior approval of the Hon’ble Chief Minister. The petitioner has been ordered to be transferred from the office of SE (OP) Circle HPSEBL, Kangra to the office of SE (Elect.) Circle BVPCL Jogindernagar, the writ petition has been filed against the same.

The Court made reference to the judgment of Division Bench of the court in Amir Chand versus State of Himachal Pradesh, wherein the following observation had been made, “ this Court cannot shut its eyes to the increasing number of transfers being made not for administrative reasons but only with a view to accommodate favored employees. As indicated by us earlier, an employee of the department is also a citizen of the country and is entitled to the equal protection of laws. Therefore, the State should always be fair to its employees. They must all be treated equally.”

The Court also made reference to the judgment of Division Bench of the court in Sanjay Kumar vs. State of H.P. and Ors, wherein the issue of transfer at the instance of elected representatives had come for consideration,  the court made the following observation, “it is the head of Administrative Department who alone has jurisdiction to transfer the employee that too on the basis of subjective satisfaction. The authority making the transfer is to be guided by transfer policy in vogue.”

Considering the precedents and the facts of the case the court held that, there was no independent decision taken by the Administrative Head in the transfer of the petitioner, 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 MP concerned. The court thus set aside the transfer order of the petitioner whilst disposing of the petition holding that, “any officer/official may be transferred on account of administrative ground/public interest or exigency of service. The existing standing order, if in contravention of above, shall stand amended accordingly.”

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