In CWP-9392-2023 (O&M)-PUNJ HC- Order of transfer of employee ordinarily cannot be interfered with, unless such order is result of mala fide action or passed against statutory rules, holds P&H HC
Justice Manoj Bajaj [25-05-2023]

Read Order: Vipan Kumar Vs. Union Of India And Others 

Tulip Kanth

Chandigarh, May 27, 2023:  The Punjab and Haryana High Court has reiterated that the power of transfer falls within the domain of employer-department & utilization of services of employees, being an administrative decision, cannot be easily questioned.

“At the very outset, this Court deems it appropriate to observe that transfer of an employee being an incidence as well as essential condition of service, therefore, such an order of transfer ordinarily cannot be interfered with, unless the order of transfer of an employee is result of a mala fide action or against the statutory rules”, the Single-Judge Bench of Justice Manoj Bajaj observed.

The Petitioner had filed a writ petition under Article 226 Constitution of India for issuance of a writ in the nature of Certiorari for quashing the orders transferring him from Nangal to NCR and posting him at Delhi Metro Rail Corporation (DMRC), as well as for setting aside the order whereby his representation seeking cancellation of his transfer orders had been declined.

The petitioner had put forth a case stating that in the year 1985, the petitioner joined the Central Industrial Security Force (CISF) as Constable, who later became Assistant Sub Inspector and ever since his appointment, he had been performing his duties diligently. The petitioner was transferred from Group Headquarter, Chandigarh to National Fertilizers Limited Unit, Nangal , where he worked only for a period of 1½ years. 

Now he had been again transferred through impugned order to NCR, and vide subsequent order he was posted at Delhi Metro Rail Corporation. The attention of the Court was drawn to the 2017 Guidelines for posting/transfer of CISF personnel which mentions that the unit/station tenure has been prescribed for three years, but before completion of the said period, the petitioner has been again transferred to National Capital Region. 

It was submitted that as per the guidelines, a personnel, who is left with a service period of 12 months, is exempted from transfer, but as the petitioner is due to retire in October, 2024, and is left with a service period of 16 months, which is slightly above the exemption slab, therefore, despite his being on the verge of retirement, he had been transferred.

The respondents argued that since the petitioner had completed more than 6 years collectively at Chandigarh and Nangal, therefore, for this third inter-changing of personnel in between North Sector/NCR, the petitioner had been rightly transferred. 

The guidelines regulating posting/transfer cannot be equated with the service rules, therefore, the strict implementation of such guidelines cannot be pressed, as these instructions/guidelines are meant for limited purpose and may allow the employees to raise their grievance against transfer before the higher authorities, the Bench added.

The Bench found that the petitioner was previously transferred vide order dated October 18, 2021 to CISF Unit NFL Nangal, where he joined on November 19, 2021 and presently, the personnel was left with approximately 16 months service period, as he is due to retire on October 24, 2024. 

Considering the respondent’s argument that the transfer of the petitioner from Nangal to NCR is not an inter-sector transfer, as both these stations form part of one sector, the High Court found that as per the conditions contained in the 2018 communication, a personnel must have completed 6 years sector tenure, as well as three years unit tenure, but in the present case at the present station, the petitioner had served only for a period of one and a half years. 

The medical issue of knee replacement of the petitioner was not disputed by the respondents and it had been pleaded that at the new transferred place, the petitioner would be in a position to take the best medical facilities of the country. 

Therefore, considering the short service tenure of petitioner, his health condition as well as other attending circumstances, the Bench allowed the transfer petition while exercising the writ jurisdiction under Article 226 Constitution.