In a Writ petition challenging the transfer order, the Division Bench of the Himachal Pradesh High Court noted that in the exercise of jurisdiction under article 226 of the Constitution, the court would not indulge in probing into the reasons behind the administrative decision especially when there is no material to infer malafide or colored exercise of power behind such decision.
Brief Facts:
The petitioner has approached the court against the office order dated 07.09.2022, praying for it to be quashed and set aside.
The petitioner is aggrieved by the fact that he is being ordered to be transferred without allowing him to complete the normal tenure of three years. The petitioner has submitted that previously also he has been transferred after short spans and every time he had to knock on the doors of the court. He also submitted that he is being transferred on the basis of a D.O. Note and that there is neither any public interest nor administrative exigency in his transfer and the impugned actions of the respondents are alleged to be malafide.
The respondents have contested that the petitioner has been transferred only on the basis of\ administrative grounds and there is no malafide intention involved. Further, they have also submitted that no D.O. Note has triggered the transfer order of the petitioner and no person has been ordered to be posted in his previous position.
Observations of the Court:
The Hon’ble Court first noted that the issue that arises for consideration is whether the petitioner can claim to remain posted at a particular place for complete tenure of three years as a matter of rule. And this question is then negatively answered by the court. The court then noted that transfer is an incidence of service and the employer has every right to transfer the employee keeping in view the administrative exigencies.
It was also said that the court does not exercise its writ jurisdiction in the matters of transfer of government employees unless administrative action is smeared with malafide.
Then according to the facts, it was noted that no tangible material has been placed by the petitioner to substantiate his allegation, neither there is any detail of the D.O. Note nor has there been any mention of the author of such D.O. note. It was also noted that as contended by the respondents, no one has been posted at the previous position of the petitioner.
With regards to the malafide on part of the respondents, the court noted that in the exercise of jurisdiction under Article 226 of the Indian constitution, the court would not indulge in probing the reasons behind the administrative decisions especially when there is no material to infer malafide or colored exercise of power and in the current case, the petitioner has failed to place any record for the Court to intervene. Otherwise as well the court noted that there is no absolute rule that the petitioner has to remain posted at a particular place for a specific tenure, it has just been said that the tenure should be 3 years normally and it cannot be taken as an absolute mandate.
The decision of the Court:
No merit was found in the petition and the same was dismissed.
Case Title: Abdul Hamid v. State of Himachal Pradesh & Ors.
Coram: Justice Sabina ; Justice Satyen Vaidya
Case No.: CWP No. 6312 of 2022
Advocate for the Appellants: Ms. Anubhuti Sharma, Advocate.
Advocate for the Respondent: Mr. Pranay Pratap Singh, Additional Advocate General.
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