Amir Chand Vs State of HP (HPHC)

Before : Rajiv Sharma, J; Deepak Gupta, J )

Amir Chand Vs State of HP

CWP No's. 5351 of 2012-F, 8487 of 2012-I, 6479 of 2012-H, 7996 of 2012-J and 6214 of 2012 Decided on : 09-01-2013

Counsel for Appearing Parties

Jyotsna Rewal Dua in CWP No. 5351 of 2012-F, Mr. Vikrant Thakur in CWP No. 8487 of 2012-I, Mr. Anup Rattan in CWP No. 6479 of 2012-H, Mr. C.S. Thakur in CWP No. 7996 of 2012-J and Mr. Rajiv Rai in CWP No. 6214 of 2012-B, for the Appellant; Vivek Singh Thakur, Additional Advocate General in CWP Nos. 5351 of 2012F, 6479 of 2012H, for respondents No. 1 and 2. in CWP Nos. 8487 of 2012I and 6214 of 2012B, in CWP No. 7996 of 2012J, Mr. Rajesh Mandhotra, D.A.G. in CWP Nos. 5351 of 2012F and Mr. Lovneesh Kanwar, Advocate, in CWP No. 8487 of 2012I, for the Respondent

JUDGMENT

Deepak Gupta, J.—This Court is flooded with litigation filed by employees aggrieved by  their transfer and sometimes, even by their non-transfer when they are not shifted out of tribal areas. The time has come when we must lay down the law with regard to the powers of the legislators to influence transfers. Should political pressure and political influence be necessary to run the administration? Should transfers be ordered on the asking of the legislators, members of a particular ruling party, persons belonging to certain groups without even making a reference to the administrative department concerned? Is the policy of transfer always binding upon the Government and its employees or can the Government flout with impunity the policy framed by it? No doubt, the employer is the master and can decide which employee is to be posted at which particular place, but we must remember that we are governed by the Constitution of India. Does not each and every employee have a right to claim that he should be treated fairly? Why is it that favoured employees, who are either well connected or can exercise political or bureaucratic clout are never transferred out of the main cities and those employees who do not enjoy such political or bureaucratic patronage have to stay in remote/tribal areas for years on end. Another disturbing feature which we have found is that in the State of Himachal Pradesh after the period earmarked for normal transfers is over, the transfers have to be ordered only after approval of the competent authority which normally is the Hon'ble Chief Minister. We have found that people directly approach the Hon'ble Chief Minister using political influence and patronage without first making a representation to the department concerned. This is a total violation of the Conduct Rules. Despite this violation of the Conduct Rules, these requests of the employees who are backed by political patronage are accepted without even considering what will be the effect of such transfers on the people who are to be served by these employees, or on those employees who may be affected by such transfers.

2. Does anybody care about the students who are studying in the schools? If no teacher is willing to go to the rural/remote areas, where will the students of these rural and remote areas study? Does anybody care in some remote areas, dispensaries are without Doctors or paramedical staff whereas there is more than the sanctioned number of doctors in the State and District headquarters. It was only after the intervention of the Court that the Female Health Workers, who were to serve in the rural areas, were actually transferred there. Almost all the Female Health Workers had been adjusted in Shimla town itself. This shows  that neither the interest of the public at large nor that of the administration was kept in view while adjusting these Female Health Workers at Shimla. When the employees want a job then they are willing to join at any place. However, soon thereafter, political patronage is employed to get themselves transferred to a particular place. There is more than sufficient material before the Courts to prove that transfers are made for extraneous reasons without considering the administrative exigencies and the interests of the students.

3. This does not speak well of the system of the administration. We are clearly of the view that normally we would not like to interfere in transfer orders passed in administrative interests. We are also of the considered view that all the employees, such as teachers, doctors, nurses etc., will necessarily have to be posted in rural/remote area at some stage in their careers. The administration has to be stern and strict in matters of transfers. At the same time, it also has to be fair and just and should treat all the employees equally. It is only because the administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses its decisions day in and day out, that the courts are forced to intervene. These types of cases clearly highlight the fact that transfers are being made not on the basis of administrative exigencies but on other extraneous considerations.

4. Rule 20 of the Central Civil Services (Conduct) Rules, 1964 lays down that it will be misconduct for an employee to bring in political pressure or get recommendations from others in matters relating to his service. It seems that both, the administration as well as the employees, have forgotten that such a rule exits. Our experience is that unless an employee gets a "suitable recommendation" or brings in political pressure, he can never get posted to a station of his choice. If action is taken against the employee for breach of the Conduct Rules, the employee could very well say that he is damned if he does not use political pressure and damned if he does.

5. It would be apposite to quote a humorous poem from Shri A.S. Bhatnagar's Commentary on Conduct Rules.

'Ban on recommendation', a humorous poem -

Who am I?

A victim to the jealousies of those

Who, to me have been quite close,

Suspended from work

And, for no fault of mine.

Oh Justice, what a heavy fine !

I am expected not to seek

Help from one mighty or weak.

They name it pressure or canvassing,

A fruit from the Forbidden Tree.

Which to touch none is free.

Is this bar justified,

When there are cases multiplied,

Where in favours have been done,

And ends foul have been badly won?

6. There can be no manner of doubt that a legislator, who is the elected representative of the people, has a right to place his difficulties before the Hon'ble Chief Minister or the Minister concerned. He would be well within his rights to complain to the authorities concerned in case he finds that a particular employee is not doing his job properly. Transfer is never meant to be a punishment but nobody can deny the fact that many times incompetent and inconvenient officials are transferred. However, before transferring an employee on a complaint made by somebody, who does not belong to the department, we are clearly of the view that even if the employee is not to be heard, a reference must be made to the Head of the administrative department and information should be sought from the concerned quarters whether the allegations made are, in fact, correct or not. Transfer should not be ordered solely on the basis of a complaint made by a political functionary even if he be a legislator. We may make it clear that there may be extreme cases where the allegations are so serious that transfer may have to be ordered without verification when the facts are apparent, but normally, reference must be made to the administrative department.

7. We must remember that we live in a country which is governed by the Constitution and the "Rule of Law" is the bedrock of our Constitution. One of the basic feature of our Constitution is Article 14 which gives equal protection of law to all the citizens.

8. The question whether political interference should be allowed in transfer matters came up for consideration of this Court in Ram Krishan versus District Education Officer, Indian Law Reports (Himachal Series) (1979) 8 HIM, 481, wherein this Court held as follows:

8. We hereby record our strong disapproval of such type of interference from outsiders in day-to-day administration of the State. If such interference is to be allowed, it would only mean that the government servants should run after those who are taking part in public life and in politics for getting better terms of service and a better place for their postings, and should do everything to please them and not to please the department by their ability, honesty and integrity. It need not be emphasised that such interference of outsiders in day-to-day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. Therefore, we want by this judgment to bring it to the notice of all concerned that sooner this type of interference is discouraged and stopped, the better for the administration and the people of this State.

9. In A.K. Vasudeva versus State of H.P. and others, Indian Law Reports (Himachal Series) (1981) 10 HIM, 359, this Court again dealt with a case in which the transfer of a teacher had been made on the behest of a Member of the Legislative Assembly. This Court held as follows:

21. The practice of effecting transfers of teachers at the behest of every M.L.A. and other influential persons seems to be rampant in the department of Education in the State. The record is full of it. Indeed when the transfer proposals are prepared there is a column No. 8 which is to show "recommended/ proposed by". I find that a transfer has been made even at the instance of the President Youth Congress (I) Subathu of a teacher Alaxender from Kanda to Subathu. It appears that no transfer is made except at the instance of somebody. Why was Shri Chaman Lal reluctant to admit his role, and why did he depose that he had nothing to do with the posting and transfer of any teacher? I had expected him to come out openly and frankly. He is not only a member of the Legislative Assembly but at the moment owns a responsible position as Chairman of a public corporation.

10. Thereafter, referring to the judgment of this Court in Ram Krishan's case supra, this Court went on to held as follows:

28. It is unfortunate indeed that despite the aforementioned pronouncement by this Court the malady of the politicians interfering in the administration of the Education Department is as rampant as before, if not worse. Apparently no one is bothered about any discipline in this department and the teachers and others are perhaps encouraged by this method to be beholden to the political persons instead of relying on the honesty and the integrity of the Director of Education and other officers for administering the department and ordering transfers.

11. Mr. Vivek Singh Thakur, learned Additional Advocate General, appearing on behalf of the respondents, cited a large number of judgments in which the importance of elected representatives is highlighted. There is no doubt that in a democracy, elected representatives of the people have a right to put forward the views of the people before the executive. At the same time, we must remember that under our Constitutional scheme, the Legislature, the Executive and the Judiciary work in different fields. If today, we permit political influence and patronage to influence transfers in the administration - tomorrow it could be turn of the judiciary. Can we even image a situation where an MLA can be permitted to try and influence the Chief Justice of a High Court to transfer a particular Judge in his constituency? The obvious answer is 'no'. This does not mean that if a Judge is not functioning properly, the legislator cannot complain to the authorities concerned. But, this is different from influencing the transfer. We, therefore, see no reason why such influence should be accepted in the administration, which also being a part of the Executive, is supposed to act independently of the legislature.

12. In CWP No. 1105 of 2006, titled Sushila Sharma versus State of H.P. and others, this Court had directed as follows:

...............We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P., who shall ensure that a proper transfer policy is formulated to ensure that the transfers are made only on administrative grounds and not on any others grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sent to these areas and there is a continuous process of change whereby all the employees have a chance to serve in tribal/hard areas as well as remote/rural areas. In the policy so framed, It should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forth its views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/cities are posted to rural/remote areas and hard/tribal areas in the transfer season when the transfers are made. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today.

Consequent to these directions, a policy was framed, but has been observed more in breach.

13. A learned Single Judge of this Court in CWP No. 3530 of 2011, titled Babita Thakur versus State of H.P. and others, held as follows:

9. It is true that it is for the employer to see where the Government servant is to be posted. However, it is equally true that there is no arbitrariness in the action. The transfer cannot be used as an instrument to accommodate/adjust the persons without there being any administrative exigency. The underline principle for transfer is public interest or administrative exigency. In the instant case, neither there was any public interest nor any administrative exigency necessitating the transfer of the petitioner from government Primary School, Chadyara (Sadar) to Government Primary School, Khanyari (Chachoit-1).

14. The Orissa High Court in Krushna Chandra Das versus District Registrar, Puri and others, 1975 All India Services Law Journal 90, held as follows:

All Government servants, high or low are subject to certain restrictions and prohibitions as envisaged in their conduct Rules, which an ordinary citizen does not suffer from. The conduct Rules lay down for the Government Servants certain standards of conduct relating to the nature of their calling. True, every Government Servant as an individual has his independent right of franchise conferred under Article 326 of the Constitution and therefore, has his mental sympathies for some political party or other. But he, oversteps it and become liable to punishment when he exhibits that sympathy or makes a parade of it. Further he also become liable when by virtue of his liason with some political party, he attempts to influence the authorities in charge of administration. In fine, political affiliations of the petitioners in pressurising their bosses for their postings and transfers, even if taken into consideration while rejecting their claims for promotions is not a ground irrelevant or extraneous to their consideration.

15. A Division Bench of the Karnataka High Court in a case titled C. Channegowda versus The State of Karnataka, decided on 22nd June, 2006, held as follows:

7. In the light of the above referred facts, we are convinced that all is not well in the matter of accommodation of the petitioner to a place of his choice. Admittedly, the petitioner was posted as Rent Controller, Bangalore North Division and subsequently, he has been posted to Sarakki Circle not for any public purpose but only to accommodate the petitioner at the instance of the political personalities. The argument that it is not a transfer but only a placing on promotion does not appeal to us. The petitioner seems to have a political backing of several political personalities in terms of the material as referred to above in our order. We are satisfied that the Tribunal is fully justified in the case on hand in setting aside the transfer of the petitioner as otherwise injustice would have been meted out to the 3rd respondent. We accept the order of the Tribunal.

8. Time and again, Courts have impressed upon the authorities that transfers/posting have to be made for public interest and not for any other consideration. We are sorry to note that several Ministers have chosen to recommend the petitioner's postings to somehow provide relief to the petitioner by way of a consideration of the earlier order and by a new order by way of posting the petitioner to Sarakki by replacing the 3rd respondent, on the sole ground of family problem. The details of family problem is not forthcoming. Even otherwise, in the interest of efficient public administration, sometimes, the family problems have to pave way unless the family problem is so grave warranting retention of a particular person in a particular place. No such case is made out in the case on hand. In our view, the transfer/posting of the petitioner, as rightly ruled by the Tribunal is only for political consideration and not for any public consideration. This Court once again deem it proper to  reiterate that political interference in transfer/posting matters are to be completely avoided in the larger interest of avoiding politicization of public office. As otherwise, the public administration would be at peril. Public efficiency and public good would suffer if transfers are effected on political consideration. Expressing our dis-pleasure, we deem it proper not to entertain this petition in the light of a detailed order passed by the Tribunal.

16. A Division Bench of Allahabad High Court in Lokesh Kumar, P.C.S. versus State of U.P. and others, decided on 5th September, 1997, held as follows:

14. Hon'ble the Chief Minister, on the request of the Member Legislative Council, required that the petitioner be transferred from his post. Although in the counter-affidavit, it has been stated that the impugned action of transfer has been taken in public interest and on the subjective satisfaction of the appointing authority in view of the complaints received against the petitioner from responsible persons holding public office which has also been taken note of by Hon'ble the Chief Minister but no material whatsoever has been brought on record which may reflect the unsatisfactory work and conduct of the petitioner. On the other hand, the respondent No. 3 in the counter-affidavit has clearly stated that the tenure of the petitioner was too short for any assessment being made of his work on the post held by him and the same has not been evaluated so far. It is thus clear that the impugned action is based only on the complaint of Sri Isam Singh, M.L.C. which has been taken cognizance by the Chief Minister without any further enquiry. It is surprising to note that in the letter of the Chief Minister dated 22.6.1997, it has been stated that the complaint has been made by Sri Isam Singh, M.L.C. with regard to oppression committed by the petitioner on Dallts, yet no enquiry or complaint or material has been placed on record. In the letter of Sri Isam Singh, it has also been stated that the petitioner has association with Sri Mulayam Singh and Sri Azam Khan belonging to his group and as such he should be transferred.

17. A learned Single Judge of the Gauhati High Court in Jibeswar Thakuria versus State of Assam and others, decided on 13th February, 2003, held as follows:

15. The records containing the official notes also revealed that the matter relating to transfer of the petitioner and the respondent No. 4 was processed on the basis of the aforesaid letter of the Minister, P.W.D. and the endorsement given by the Minister of Health & Family Welfare. The records clearly revealed that at least two medical Officers are in Guwahati for longer periods than the petitioner. Dr. Dhiraj Das, Assistant Professor of Medicine who has been in Guwahati since 1996, was sought to be transferred to accommodate the respondent No. 4. However, his transfer was cancelled as noticed above. Thereafter, it was the turn of the petitioner who was transferred to Silchar only to accommodate the respondent No. 4. Thus, it is clear from the records that no public interest  is involved in transferring the petitioner from Guwahati to Silchar. It is the private interest of the Minister, P.W.D. on whose request the Minister of Health and Family Welfare, ordered the transfer of the petitioner without mentioning anything as to what was the public interest. The only revelation which could be gathered from the records is that the petitioner was transferred to Silchar only to accommodate the respondent No. 4 and that too as per the request of the Minister, P.W.D.

xxx xxx xxx xxx

27. In all the three cases by taking the name of "public interest", the private interest of the recommending authorities, i.e. the Minister of other departments having no nexus with the departments in question, has been given preference and the private respondents have been accommodated as per their choice. The records of all the three cases lead to the irresistible conclusion that the authorities at the helm of affairs have totally misused their power towards issuance of the impugned orders I the name of "public interest" and the concept of "public interest" so well cherished in the matter of transfer has been put to oblivion with the use of its form and not the contents. There has been all round abuse of powers. In the process, the officers occupying key positions gave way to the commands of the Ministers without any valid sanction behind the same. To say the least, what has been done in the all the cases is not what is expected of responsible Officers including the Officers belonging to All India Services and Assam Civil Services. I am tempted to quote the observations of the Apex Court in the case of Tarlochan Dev Sharma Vs. State of Punjab and Others, as follows:

In the system of Indian democratic governance as contemplated the Constitution, senior officers occupying key positions such a Secretaries are not supposed to mortgage their own discretion, violation and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercises of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhusinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is, failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account consideration of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them.

18. In CWP No. 2844 of 2010, titled Pratap Singh Chauhan versus State of H.P. & others, decided on 18.06.2011, one of us (Deepak Gupta, J.) after considering the various judgments of the Apex Court held as follows:

10. We are governed by the Constitution of India. As per the constitutional scheme there are three pillars of democracy; the Legislature; the Judiciary and the Executive. Each has to work in its own sphere. This is a system of checks and balances where each can check the other, but it must be clearly understood that none of the three organs can encroach upon the jurisdiction of the other. The jurisdiction vested in this Court under Article 226 of the Constitution of India is indeed very wide. Wider the jurisdiction, more care should be taken to exercise it with greater discretion, so that questions are not raised about the functioning of the Judiciary. The Apex Court has in no uncertain terms laid down a note of caution that Courts should not interfere in transfer matters except on very strong grounds.

11. Having held so, this Court is also not oblivious to the factual position which exists on the spot and the situation is that day in and day out this Court is flooded with writ petitions in which employees challenge the order of their transfer on various grounds. On more than one occasion this Court has found that there are notes sent by public representatives such as Members of the Legislative Assembly recommending the transfers. No doubt, public representatives have a right to make recommendations, but these can only be recommendations and cannot be taken to be the final word.

19. A Division Bench of this Court Sant Ram Pant Versus State of HP and others, 2009 (3) Shim. LC, 206 held as follows:-

8. When transfers are made, an employee may be aggrieved by his transfer. An employee has a right to make a representation against such transfer. It is also the right of the employer, including the State, to look into the grievances of the employees and if the grievance made by the employee is found to be genuine, the State is well within its right to redress the grievance of the employee and cancel the order of transfer. However, the grounds for passing an order of cancellation within two weeks of the original order must be borne out from some material on the record. In the present case, despite two opportunities being given the State has not produced any representation made by the respondent No. 3 or any other communication addressed to the office of the Hon'ble Chief Minister on behalf of the respondent No. 3 which would justify the issuance of the note dated 1.1.2009.

20. This Court in CWP No. 503 of 2007, titled Gurdev Jassal versus State of H.P. & others, decided on 21.5.2007, had even deprecated the practice of stay orders being granted by the judicial tribunals and authorities in matters relating to transfers. The observations of this Court are relevant in the present case also, which read as follows:-

We have also noticed a growing trend that while granting stay in transfer cases the judicial authorities do not take into consideration the adverse impact which such orders may have on the general public. Stay orders are granted at the instance of the applicants resulting in one or more than one officers of the same rank being posted at one place against one vacant post, like in the present case. This results in the public suffering at the place where no officer is posted and the office remaining vacant. We can take judicial notice, and in fact we have noticed in a large number of cases that due to stay orders being granted, posts of Teachers and Doctors in remote areas keep lying vacant. After obtaining the stay orders, the officers are in no hurry to get their matter heard. Why should the students in schools suffer for lack of Teachers? Why should the patients suffer in the absence of the Doctors? This court cannot shut its eyes to these important questions. In our considered opinion, while deciding the question whether stay should be granted or not in the matters regarding transfer of the employees, the judicial authority must keep in mind the interest of the public also. We are also of the view that where the applicant-petitioner has a strong case, it is better to decide the case itself and quash the transfer orders rather than granting a stay which continues for an indefinitely long period.

21. This Bench while deciding CWP No. 2387 of 2012-I, tilted Alka Chakor versus State of H.P. & others, decided on 21.06.2012, again noted that transfers are being ordered not on ground of administrative exigencies but only with a view to accommodate certain persons who are highly influential and are well connected. We also found that though the State had framed a policy which was purportedly in consonance with the judgment delivered in Sushila Sharma's case supra, but the manner in which the policy was being enforced left much to be desired. This Court observed as follows:

4. Though the policy has been framed, which is purportedly in consonance with the judgment delivered above but the manner in which the policy is applied leaves much to be desired. Resultantly this Court is flooded with petitions challenging transfer orders. In most cases, we find that the employees at the time of employment are willing to serve at any station. However soon thereafter they use political and other influence to get themselves transferred to a station of their choice. This clearly shows that the transfers are being made for extraneous reasons without considering the administrative exigencies. In the case of school teachers and doctors, we have found that more often than not in remote and rural areas the posts are lying vacant but in urban areas or so called rural areas which are close to town, the influential doctors and teachers are adjusted and it appears that nobody is bothered about the difficulties being suffered by the poor persons in remote and rural areas. This does not speak well of the system of the administration. We are clearly of the view that normally we would not like to interfere in transfer orders passed in administrative interests. We are also of the considered view that all the employees, such as teachers, doctors, nurses etc., will necessarily have to be posted in rural/remote areas at some stage in their careers. The administration has to be stern and strict in matters of transfers. At the same time it also has to be fair and just and should treat all the employees equally. It is only because the administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses its decisions day in and day out, that the courts are forced to intervene. These type of cases clearly highlight the fact that transfers are being made not on the basis of administrative exigencies but on other extraneous considerations.

22. In view of what we had observed above, we had also issued the following directions:

7. The department should ensure that when transfers are made the record in the data base is looked into. The employees who have served in tribal/hard areas or other remote and rural areas are not again sent to these areas but there should be a continuous process of change whereby all employees have a chance to serve in urban/tribal/hard areas and remote/rural areas. The department and in fact the State may consider categorizing the various stations in different categories e.g. categories A, B, C and D. The State should categorize all the places where employees can be posted in different categories. The State can have four or more categories as it deems fit. The categorization will be from the most easy stations i.e. urban areas like Shimla, Dharamshala, Mandi etc. which may fall in category A and the lowest category will be of the most difficult station in the remote corners of the State such as Pangi, Dodra Kawar, Spiti etc. The home town or area adjoining to home town of the employee can also be categorized in category A or at least in a category higher than the category in which it would normally fall. For example if an employee belongs to Ghumarwin which may have been categorized in category B but if the employee belongs to the area of Ghumarwin for his purpose, the posting in Ghumarwin will be deemed to be in Category A. After the categorization of the stations into different categories the entries shall be made in the data base as to in which category of station(s) a particular employee has spent his entire service. Efforts will be made to ensure that every employee serves in every category of station. Therefore, if the State decides to have four categories of station, every employee would serve in all the four categories of station. There may be exceptions in some special hard cases but in such cases specific reasoned order must be passed why the policy is not being followed. The State should ensure that the transfers are made in such a fashion that every time a transfer is made, an employee shifts from the category of station either upwards or downwards to the other category depending on where he has rendered service earlier. In case such a policy is followed which is based on objective criteria there will be no scope for adjusting the favourites at a chosen station and all the employees would be treated equally. This will avoid heartburn amongst the employees and all employees will get equal opportunity to serve in different types of areas. We, therefore, direct the State to make amendments in the transfer policy in the line of the observations made hereinabove.

8. The problem arises when a policy of pick and choose is applied while posting people. If a fair system is followed then there will be no problem in implementing the policy. Unfortunately, whenever transfers are ordered people intervene and try to get the transfer orders cancelled. These transfer orders are being cancelled without making reference to the administrative department as per the directions which have been specifically given by this Court.

Despite such directions having been issued, we find that still transfers are ordered at the whims and fancy of the employer without taking into consideration the administrative exigencies only on the basis of recommendations made by political functionaries.

23. In Tarlochan Dev Sharma Vs. State of Punjab and Others, the Apex Court held as follows:

16. In the system of Indian democratic governance as contemplated by the Constitution, senior offices occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law.........

24. Reliance placed by Mr. Vivek Singh Thakur, learned Additional Advocate General, on the judgment of the Apex Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, is misplaced since in that case what was being considered was the right of the citizens to know about the assets of their elected representatives.

25. In People's Union for civil Liberties (PUCL) and Others Vs. Union of India (UOI) and Another, the Apex Court in para 94 observed that in a democratic republic, it is the will of the people that is paramount and that this will is expressed in periodic elections. It has also been observed that the elected representatives acts or is supposed to act as a link between the people and the Government.

26. On this basis, it is urged by Mr. Vivek Singh Thakur, learned Additional Advocate General, that the elected representatives must have a right to express their views in the transfer of the employees.

27. The Apex Court in Sarvesh Kumar Awasthi versus U.P. Jal Nigam and others, (2003)  11 SCC 740, held as follows:

3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.

It is apparent that the officers, who order transfer for the better administration must act without fear and without any pressure.

28. The Apex Court in Suresh Chandra Sharma Vs. Chairman, UPSEB and Others, , was dealing with the transfer in the U.P. State Electricity Board. It was urged before the Apex Court that interference in transfers and postings by persons with political patronage had totally destroyed the autonomous nature of the Electricity Board. In that case, a High Powered Committee was set up by the Apex Court and this Committee also supported the contention of the petitioners that there was an interference at all levels during the transfers. Thereafter, the Apex Court issued the following directions:

8.............................

1. No Minister of the State of U.P., nor any government officer shall interfere with the transfers/ postings of the officers in any of the Corporations named above.

2. All postings/transfers of the officers/staff of the aforesaid Corporations shall be monitored by an independent Committee consisting of the following persons:

(i) Shri S. Venkatnarayanan (IAS), Retd., former Chairman, National Power Finance Corporation, as Chairman;

(ii) A member of UPSC to be nominated by the Chairman of UPSC;

(iii) A nominee of the Chairman of the Central Electricity Authority;

(iv) A nominee of the Comptroller and Auditor General; and

(v) A nominee of the Central Vigilance Commission.

3. All proposals for transfers/postings of officers and staff of the aforesaid Corporations should, before finalisation, be placed before the independent Committee which shall examine and approve the transfers/postings on merits and in the light of the guidelines for transfer policy of officers.

4. No transfer/posting which is disapproved by the said Committee shall be made by the Board of Directors of any of the aforesaid eight Corporations.

5. The Committee shall make a report tot his Court containing its observations with regard to the transfers/postings of officers and staff, if any, made for the year 2005, after all such cases have been considered and decisions thereupon taken.

Thus, the Apex Court clearly came to the conclusion that there should be no political interference in such transfers.

29. We may also refer to the judgment of the Apex Court in Prakash Singh and Others Vs. Union of India (UOI) and Ors, , wherein in respect of the Police Establishment, the Apex Court issued a number of directions and one of these was that the police employees should have a minimum tenure of service at a particular place.

30. It is, however, true that the Apex Court in Mohd. Masood Ahmad Vs. State of U.P. and Others, , held as follows:

8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. 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. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.

31. Reliance placed by Mr. Vivek Singh Thakur, learned Additional Advocate General, on the judgment of the Apex Court in Government of Andhra Pradesh and Others Vs. Smt. P. Laxmi Devi, , in our opinion, is misplaced. The observations made in paras 87 and 88 of the judgment are only general observations that too with regard to the concept of democracy and would have no application to the present case.

32. From the files which this Court has seen including the files of these cases, it is apparent that transfers are being made day in and day out at the behest of public representatives. It is true that public representatives have a right to complain against the working of government officials. However, these complaints must be verified by the administrative department and final action has to be taken by the administrative department. Transfer is not a punishment and if transfer is inflicted as a means of punishment, then the whole purpose of making transfers in the public interest is set at naught. An employee who is rude or inefficient at one station will not become polite or efficient at another station. Transfer does not serve any purpose. If the allegations of the public representatives made in the complaints against the government servants are found to be correct, then disciplinary action should be taken against such government employees. We live in a democracy and our elected representatives under the constitution are to work in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. This has already resulted in government servants rushing to please the political masters at the cost of doing their duties. This also demoralizes the officers who are in charge of the administration of the department. It is they who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of administrators. The earlier such inherently illegal and improper practices are put to an end, the better it would be for the smooth functioning of the administration of the State.

33. As far as the concept of judicial review is concerned, the Apex Court again observed that the Court should be reluctant in interfering in transfer orders. The scope of judicial review in the matter of transfer of a Government employee is limited and the Court should not interfere in the transfer. The Court cannot substitute its own opinion for the opinion of the employee.

34. After reviewing the entire law on the subject, we can without any hesitation come to the conclusion that the scope of judicial review in transfer matters is very limited. This Court cannot interfere in the day to day functioning of the Government departments and it is for the administrative heads to decide which employee should be posted at which place. Even earlier, we had clearly given a number of judgments on these lines.

35. At the same time, 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 favoured 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.

36. We are also of the view that what is administrative exigency must be decided by the administrative heads and not by political bosses. It is true that sometimes the role of a legislator is overlapping and he has some powers of the executive also. However, such powers cannot be exercised in such a manner that the bureaucracy is totally sidelined. What is administrative exigency and the need of the department has obviously to be decided by the persons working on the ground, i.e. the administrative heads. The elected representatives definitely have a right to bring to the notice of the department the malfunctioning of any individual employee, but merely because there is a complaint by an elected representative, an employee should not be transferred unless some verification of the complaint is made. This may not be a full fledged enquiry, but it is only the administrative head who can decide this issue.

37. Having laid down the principles, we now proceed to decide the individual cases:

CWP No. 5351 of 2012-F

38. The record of this case shows that the petitioner was working as a Forest Guard in the Jispa Forest Beat, Keylong Range, Lahaul Division. On 03.01.2011, the petitioner made a request for his mutual transfer to Sisso Beat Keylong Range vice Shri Sunil Kumar. Neither the Jispa Beat nor the Sisoo Beat were the home beats of the petitioner and Shri Sunil Kumar nor adjoined their home beats. The Principal Conservator of Forests acceded to their requests and the Conservator of Forests, Kullu, was directed to comply with the order. On 04.07.2011, the local MLA sent a communication to the Hon'ble Chief Minister mainly with regard to one Shri Ashok Kumar Bhupal and also prayed that transfer of Shri Shankar Dass, Deputy Ranger, Forest Range at Kullu to Lahaul be cancelled and the petitioner be sent to Miyar Nallah.

39. On what basis, this recommendation was made by the MLA is not known, but the office of the Hon'ble Chief Minister without referring the matter to the administrative department directed that Amir Chand, Forest Guard, be transferred without TTA from Jispa, Forest Range Keylong to Udgos, Forest Range Udaipur. It appears that the Hon'ble Chief Minister's office thought that Amir Chand had made a request for his transfer since he was not granted any TTA. After the note of the office of the Hon'ble Chief Minister was conveyed to the Forest Department, an order was issued transferring the petitioner-Amir Chand from Jispa Forest Beat in Keylong Range to Urgose beat in Udaipur Range without TTA and one Shri Shiv Kumar, Forest Guard, who was working in Urgose Forest Beat was transferred to Jispa beat in place of the petitioner.

40. Amir Chand had not made any request. The difficulty of Shiv Kumar was also not taken into consideration. Thereafter, the petitioner, when he was handed over the transfer order, made an endorsement on it that without TTA, he will never go to Urgose Beat because he had never made a request to go there. He also stated that if TA was given to him, he would comply with the orders.

41. On 29.07.2011 itself, the DFO while ordering the transfer sent a communication to Range Officer, Keylong and Range Officer, Udaipur to immediately implement these orders. On 30.07.2011, the DFO sent another letter that the order dated 29.07.2011 stands cancelled.

42. These orders were passed by the Divisional Forest Officer, Lahaul Forest Division at Keylong, without even caring to inform his senior officials and, therefore, the Conservator of Forests, Kullu, sent a communication on 18.08.2011 to the Divisional Forest Officer, Lahaul, relevant portion of which reads as follows:

It is pointed out that you have not followed the office decorum while issuing this order. You have straightaway quoted the office of Hon'ble C.M. You could have waited for proper communication from either the office of Pr.CCF or this office. The way you have quoted the office of Hon'ble C.M., it is not done this way while issuing transfer orders. So you are advised not to repeat such folly in future.

Further, since this office doesn't have any of the letters quoted by you except that a verbal message from the then Pr.CCF was received for not transferring Sh. Amir Chand Forest Guard till further instructions. Nevertheless, no further instructions have been received so far, accordingly you may take further action as per written instructions/orders which you have received, direct, in this matter.

43. The Chief Conservator of Forests then stayed the order of transfer of the petitioner vide his communication dated 15.10.2011. Thereafter, on 30.6.2012, the petitioner was transferred from Jispa Beat to Seraj Forest Division and he then challenged his transfer to Seraj on various grounds.

44. The State has not been able to explain the various conflicting orders passed by the different forest officials from time to time. According to the State, the petitioner could be posted anywhere within Kullu Forest Circle and since he has been serving in Jispa Beat for ten years, he had to be posted out of this beat.

45. From the record, it is apparent that the petitioner, who belongs to Lahaul and Spiti, has remained posted from 1992 till 2012 in Sisoo or Jispa Beat. He belongs to the circle cadre and could have been posted anywhere. But the manner in which the orders of the Chief Conservator of Forests were not obeyed and the manner in which Amir Chand was transferred merely on the letter of the MLA concerned, highlights the fashion in which such transfers are being made and fully supports what we have observed above.

46. We are clearly of the view that the manner in which the Divisional Forest Officer and the Conservator acted was totally against the directions of the administrative head and transfer orders were issued only with a view to comply with the request of the MLA. This could not have been permitted. However, the transfer of the petitioner to Seraj on 30.6.2012 cannot be said to be illegal since he has served in Jispa and Sisoo Beat for almost twenty years. Therefore, the writ petition is dismissed.

CWP No. 8487 of 2012-I

47. By means of this writ petition, the petitioner, who is working as a Principal, has challenged the order dated 21.09.2012, whereby she has been transferred from Government Senior Secondary School (Boys), Solan to Government Senior Secondary School, Chakli in Sirmour vice respondent No. 3-Shri Susheel Kumar.

48. According to the petitioner, she was posted to Solan only on 26.05.2010 and after two years and four months, she has been transferred to accommodate the private respondent who has served at Chakli only for a period of one year and three months.

49. The respondent-State in its reply has given the following data with regard to the various places of postings of the petitioner and respondent No. 3, Susheel Kumar:

The previous postings of the petitioner:

The previous postings of respondent No. 3:

50. From the aforesaid data, it is apparent that the petitioner since she joined service in the year 1982 has served at various places in Sirmour, Solan and Shimla Districts. On the other hand, respondent No. 3 initially served in Chakli from 1994 to 2002. thereafter, he served at Subathu for six years and at Kasauli for three years. He was posted to Chakli only on 13.06.2011 and within one year and three months, he was transferred to Solan. In the reply, no reasons have been given as to why he was transferred to Solan. All that has been stated is that he was transferred in the public interest.

51. As far as respondent No. 3 is concerned, he in his reply states that his parents are old and suffering from multiple diseases. It has also been claimed that the wife of respondent No. 3, who is working as a teacher, is posted at GMS Mansar. According to respondent No. 3, he had made a request to the competent authority to post him at Solan because of his family situation. However, no such request has been placed on record and no such request is found on the record produced before us.

52. We had called for the record of the transfers and we find that on 18th September, 2012, the Hon'ble Chief Minister approved the transfer of Smt. Om Prabha Monga, Principal, from GSSS (Boys) Solan to GSSS Chakli vice Shri Susheel Kumar, Principal, in condonation of short stay. From this order, it appears as if a request had been made on behalf of the petitioner, Om Prabha, to be transferred from Solan to Chakli. In fact, she had not made any request. The recommendation on the letter on the basis of which such transfer order was passed by the office of the Hon'ble Chief Minister has also not been placed on record. There is no material to show on what basis such order was passed.

53. In view of what we have held above, the transfer could not have been ordered in the manner in which it has been done. No reasons have been given anywhere as to why the petitioner was transferred from Solan to Chakli. We, therefore, allow the writ petition and quash the impugned transfer order.

CWP No. 6479 of 2012-H

54. The petitioner, in this case, was appointed as Dental Hygienist on contract basis and posted at CHC Udaipur, District Lahaul and Spiti in March, 2007 and since then he has been serving there.

55. The petitioner made a representation to the Director, Dental Health Services, on 01.02.2012 stating that he had completed almost five years in a tribal area and prayed that he may be posted either at RPGMC Tanda or the Zonal Hospital, Dharamshala or First Referral Unit, Shahpur, District Kangra. When no action was taken, he again made a request for his transfer from the tribal area vide registered post on 31.05.2012. However, his request went unattended and he had to file the present writ petition.

56. On 21.08.2012, we had passed the following order:

The grievance of the petitioner is that despite having completed more than five years in the tribal area of Udaipur, District Lahaul & Spiti he has not still been posted outside especially to a station of his choice. In the reply to be filed by the respondents, it shall be stated why the petitioner has not been posted outside the tribal area and what is the hitch in posting some other person in his place. We may make it clear that while ordering the transfer of the petitioner, the respondents shall ensure that either some newly appointed person or a person who has completed three years in his station and has never served in the tribal area is posted in place of the petitioner. List the matter on 25th September, 2012.

57. Reply was filed on behalf of respondents No. 1 and 2 and the only thing stated in the reply was that no vacancies were available in the places where the petitioner wanted to be posted and therefore, his request could not be acceded to.

58. We were not satisfied with the reply and therefore, on 4th October, 2012, we had passed the following order:

We have considered the reply filed on behalf of respondents No. 1 and 2. We are not satisfied with the same. The Director, Dental Health Services, Himachal Pradesh, Shimla-9 shall file an affidavit within three weeks from today giving the names of all the Dental Hygienist in Himachal Pradesh, who have never served in tribal area. This list shall contain the names of both the regular Dental Hygienist as well as those appointed on contract basis. It shall also be clearly spelt out why the persons, who have spent long time in non-tribal area, are not being posted to tribal areas.

59. An affidavit in compliance has been filed which shows a shocking state of affairs and clearly supports what we have said in the main part of our judgment that some persons never served in tribal areas. The affidavit discloses that there are as many as 76 Dental Hygienists, out of whom some are appointed on regular basis and some are on contract basis, who have never served in tribal areas. There are persons who were employed as far back in the years 1983, 1985 and 1987, but have managed not to go to the tribal area at all.

60. We, therefore, allow the writ petition and direct that the petitioner shall be relieved latest by 31st March, 2013, from Udaipur. We further direct that some employee who has longest stay in the non-tribal area and has managed to stay outside the tribal area and is less than 55 years of age be posted to Udaipur, District Lahaul and Spiti in place of the petitioner.

CWP No. 7996 of 2012-J

61. By means of this writ petition, the petitioner, who is working as Panchayat Sahayak, has challenged his transfer order dated 11th September, 2012, whereby he has been transferred from Gram Panchayat Thaina Basotari to Gram Panchayat Bohal Talia.

62. The allegation of the petitioner is that respondent No. 5 was appointed as Panchayat Sahayak only in the month of February, 2012 and was directed to join at Gram Panchayat Koti Badhog, but she managed to get herself adjusted at Gram Panchayat Tikkar under political influence/pressure. Thereafter also, she did not join at Gram Panchayat Koti Badhog but was adjusted at Gram Panchayat Bohal Talia in the month of April, 2012. Thereafter, she again got herself adjusted at Gram Panchayat Bhanat against respondent No. 6- Shri Krishan Kumar. Krishan Kumar, in turn, managed to get himself transferred in place of the petitioner and hence the present petition.

63. It is stated that the transfer order has been issued only on the asking of respondent No. 7, Shri Chander Mohan Thakur, who was the Chairman of the H.P. State Co-operative Bank and BJP Leader. We has issued notice of this petition on 20.09.2012 and para 4 of the order reads as follows:

The petitioner has challenged the transfer order dated 11th September, 2012. A perusal of this order shows that this has been issued only because of the recommendations made by respondent No. 7. Respondent No. 7 is not an MLA, he only happens to be the Chairman of the H.P. State Co-operative Bank. We fail to understand in what capacity he can recommend transfers. Furthermore, even if he recommends that some person be transferred, the administrative department must put forth his views and verify whether the recommendations are reasonable, proper or not. Therefore, the impugned transfer order qua the petitioner is stayed and the petitioner shall be permitted to continue to work at Gram Panchayat Thaina Basotari.

64. Despite such orders, no reply has been filed by any of the respondents. We do not understand how the leader of a political party, who may happen to be the Chairman of the H.P. State Co-operative Bank, could have made a request for transfer of an employee. The transfer is, therefore, patently illegal and is accordingly quashed.

CWP No. 6214 of 2012-B

65. By means of this writ petition, the petitioner, who is working as the Head of Department (Computer Engineering), has challenged the order dated 18th July, 2012, Annexure P-1, whereby he has been transferred from Government Polytechnic, Hamirpur to Atal Bihari Vajpayee Government Institute of Engineering & Technology, Pragatinagar, District Shimla, only with a view to accommodate respondent No. 3-Shri Vikas Dhiman.

66. In the reply filed by the State, the respective period of postings of the petitioner and respondents No. 3 & 4 have been given as follows:

67. It is stated that the order to transfer the petitioner from Hamirpur to Pragatinagar, Shimla, was passed on administrative grounds in the public interest with the prior approval of the competent authority (the Hon'ble Chief Minister).

68. There is no manner of doubt that the petitioner spent ten years at Kandaghat and thereafter for four years he was posted at Hamirpur. On the other hand, respondent No. 3 spent almost fifteen years at Sundernagar and was posted in place of the petitioner at Hamirpur. Shri Puneet Sood, who had worked for fourteen years at Government Polytechnic, Kangra, was transferred to Hamirpur in June, 2012. It is, thus, obvious that all the three persons have spent long years at their initial place of postings.

69. The allegation of the petitioner is that respondent No. 3 was promoted to the post of Head of Department (Computer Engineering) on 02.05.2012 and was directed to join at Pragatinagar against a vacant post vide Annexure P-2. Respondent No. 3 was relieved in absentia from Government Engineering College, Sundernagar on 21.05.2012 but respondent No. 3 did not join at Pragatinagar. The allegation of the petitioner is that respondent No. 3 used political influence to get his transfer order modified and thereafter, on 11.06.2012, respondent No. 3 was adjusted at Government Polytechnic, Hamirpur vice Shri Puneet Sood, the proforma respondent. Shri Puneet Sood, who was the Head of Department (IT), was transferred to Pragatinagar in place of respondent No. 3.

70. Thereafter, Shri Puneet Sood filed CWP No. 4641 of 2012 before this Court and order of his transfer was stayed vide order dated 16.06.2012. While passing order on 16.06.2012, this Court had directed Shri S.K. Dash, Additional Chief Secretary (TE) to the Government of Himachal Pradesh, to file an affidavit clearly stating what compelled the Government to cancel the earlier transfer order of Shri Vikas Dhiman. The respondent-State did not choose to file reply in the said writ petition but withdrew the transfer order on 18.07.2012 and instead of Shri Puneet Sood, the petitioner was posted to Pragatinagar. According to the petitioner, this order was passed only to accommodate respondent No. 3-Shri Vikas Dhiman.

71. In the reply of the State, no explanation has been given as to why the transfer of Shri Vikas Dhiman from Sundernagar to Pragatinagar was cancelled. All that has been stated is that it is the prerogative of the department to decide who should be posted where. That may be true but as held by us above, each employee must be treated fairly. No reason has been given why the transfer of Shri Vikas Dhiman on his promotion as Head of Department (Computer Engineering) was cancelled.

72. We had called for the file of the case which makes interesting reading. The office of the Hon'ble Chief Minister vide note dated 18th June, 2012, had informed the Secretary (Technical Education) that the transfer of Shri Vikas Kumar Dhiman, HOD (Computer Engineering), who was under orders of posting on promotion to Atal Bihari Vajpayee Government Institute of Engineering & Technology Pragatinagar, District Shimla, may be adjusted without TTA at Government Polytechnic, Hamirpur vice Shri Chander Shekhar, HOD and vice versa. No representation of Shri Dhiman has been placed on record.

73. Who approached the Hon'ble Chief Minister is not clear. Why this note was issued is also totally not clear. We cannot loose sight of the fact that Shri Vikas Dhiman on his promotion was transferred. He was relieved in absentia from Sundernagar, but he did not care to join his place of posting. We fail to understand why the Government should help a teacher who does not care about the studies of the students but only because of his own inconvenience or difficulty does not care to join at the place where he is posted.

74. Thereafter, the department put up a note that even the order of the transfer of Shri Vikas Dhiman to Pragatinagar had been issued on 02.05.2012 with the approval of the Hon'ble Technical Education Minister and the administrative department proposed that Shri Vikas Dhiman be asked to join at Pragatinagar. This note was prepared by one Ms. Madhu, Dealing Assistant and approved by Shri Deepak Thapa, the Section Officer. We place on record our appreciation for their courage in placing the true facts while making the back reference. We are, however, sorry to observe that whereas officials at the level of Assistant and Section Officer have shown courage, the senior bureaucrats have not shown the same courage and this note was sidelined by a note of the Under Secretary (Technical Education) that Shri Dhiman has already been posted at Hamirpur vice Shri Puneet Sood. Link up with that case and put up.

75. After Shri Puneet Sood filed the writ petition and this Court granted a stay and specifically directed that reply be filed explaining why the transfer of Shri Dhiman had been cancelled, the department did not care to file a reply, but instead chose to change the transfer orders.

76. Here it would be pertinent to note that even Shri Chander Shekhar has admittedly completed four years at Hamirpur. It appears that he also made some representation directly to the Hon'ble Chief Minister, who vide his UO letter desired that Shri Chander Shekhar may also not be disturbed from his present place of posting being a couple case. Therefore, within a few days, the orders were changed and Shri Puneet Sood was ordered to be transferred. When in Puneet Sood's case, this Court granted a stay, the department now proposed that Shri Chander Shekhar may again be posted at Pragatinagar.

77. Thereafter, a fresh note was received from the office of the Hon'ble Chief Minister whereby it was approved to transfer Shri Chander Shekhar from Government Polytechnic, Hamirpur to Government Polytechnic, Sundernagar, vice Shri Neeraj Uppal, HOD, though in another note, it had been desired not to disturb Shri Neeraj Uppal. Again Ms. Madhu and Shri Thapa showed courage and put up a very detailed note and submitted that it will not be advisable to cancel the transfer of Shri Chander Shekhar in view of the matter pending before the High Court. This proposal was then accepted.

78. From the aforesaid material, it is more than apparent that the entire exercise was done only with a view to accommodate respondent No. 3-Shri Vikas Dhiman. This case again highlights what we have stated in the main part of the judgment that transfers are being ordered without taking into consideration the administrative exigencies. Contradictory orders were being issued at the behest of one employee or the other.

79. In view of the facts stated above, we dispose of the writ petition with the following directions:

1. That respondent No. 3-Shri Vikas Dhiman should join at Pragatinagar, if he had not already joined and should serve there for at least three years;

2. That the petitioner-Shri Chander Shekhar, who has spent more than four years at Hamirpur, may be transferred out of Hamirpur, if the Government so desires, in accordance with the directions issued by us hereinabove.

80. In addition to the directions issued in the individual writ petitions, we are of the considered view that certain general directions are required to be issued. We have collated the various directions issued by us in different cases which have not been complied till today. After taking into consideration the entire scenario, we issue the following directions:

1. The State must amend its transfer policy and categorize all the stations in the State under different categories. At present, there are only two categories, i.e. tribal/hard areas and other areas. We have increasingly found that people who are sent to the hard/tribal areas find it very difficult to come back because whenever a person is posted there, he first manages to get orders staying his transfer by approaching the political bosses and sometimes even from the Courts. Why should the poor people of such areas suffer on this count. We are, therefore, of the view that the Government should categorize all the stations in the State in at least four or five categories, i.e. A, B, C, D and E also, if the State so requires. The most easy stations, i.e. urban areas like Shimla, Dharamshala, Mandi etc. may fall in category A and the lowest category will be of the most difficult stations in the remote corners of the State such as Pangi, Dodra Kawar, Kaza etc. At the same time, the home town or area adjoining to home town of the employee, regardless of its category, otherwise can be treated as category A or at least in a category higher than its actual category in which the employee would normally fall. For example, if an employee belongs to Ghumarwin, which is categorized in category B, then if the employee is serving in and around Ghumarwin, he will be deemed to be in Category A.

2. After the stations have been categorized, a database must be maintained of all the employees in different departments as to in which category of station(s) a particular employee has served throughout his career. An effort should be made to ensure that every employee serves in every category of stations. Supposing the State decides to have four categories, i.e. A, B, C, D, then an employee should be posted from category A to any of the other three categories, but should not be again transferred to category A station. If after category A he is transferred to category D station, then his next posting must be in category B or C. In case such a policy is followed, there will be no scope for adjusting the favourites and all employees will be treated equally and there will be no heart burning between the employees.

3. We make it clear that in certain hard cases, keeping in view the problems of a particular employee, an exception can be made but whenever such exception is made, a reasoned order must be passed why policy is not being followed.

4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representative do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred.

5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. This choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to shows their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.

6. We, therefore, direct 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.

7. 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. We, however, reiterate that no transfer should be made at the behest of party workers.

We direct the State to amend the transfer policy of the State on these lines latest by 28th February, 2013. We make it clear that any violation of these directions shall be treated to be contempt of the orders of this Court.