Clubbing Stay Of Employee At Different Postings For Transfer Purposes | Doesn't Violate Definition Of Transfer Under State Rules | Himachal Pradesh High Court
Saifya Malik
The High Court of Himachal Pradesh Division Bench of Justice Tarlok Singh Chauhan and Justice Sushil Kukreja held that the office memorandum dated 27.10.2023 allowing clubbing of stay for the purpose of transfer of employees in the Education Department is legally valid. The court directed that the memorandum is not contrary to Clause-10 of the State Government Transfer Policy dated 10.07.2013 or Statutory Rule SR 2 (18). The court overruled the previous judgment rendered in December 2023, answering the referred question by holding that such clubbing does not violate any statutory provision or mandate governing transfers of government employees in Himachal Pradesh.
The matter arose from a reference made by a Single Judge questioning the correctness of a previous judgment dated 14.12.2023 passed in CWP No.8605 of 2023 (Anurag Chadha v. State of Himachal Pradesh & others) wherein it was held that the office memorandum dated 27.10.2023 allowing clubbing of stay for the purpose of transfer of employees was contrary to Clause-10 of the Transfer Policy dated 10.07.2013 and Statutory Rule SR 2 (18).
The petitioner, a Trained Graduate Teacher (Medical), had challenged her transfer order dated 22.03.2024 by which she was transferred from GHS Khianpatt, District Kangra to GSSS Chobia (Bharmaur), District Chamba. The transfer was effected by clubbing her previous stay in and around GHS Khianpatt, District Kangra. She contended that such clubbing was against the judgment in Anurag Chadha’s case which had held that clubbing of previous stay at nearby stations to calculate total stay for transfer purposes was impermissible.
The judgment in Anurag Chadha’s case had held that Clause-10 of the Transfer Policy mandated computation of stay at “one station” and that clubbing violated Statutory Rule SR 2 (18) which defines transfer as movement from one headquarter station to another. It had also held that clubbing of stay could not be applied if the transfer order was initiated based on extraneous considerations or approvals prior to the office memorandum of 27.10.2023.
However, in the present matter, the learned Single Judge referring the question expressed reservations on the correctness of Anurag Chadha’s judgment on the ground that the guiding principles regulating transfer were not statutory in character. It was observed that the guidelines framed by the Department of Personnel used the term “Guiding Principle” and did not have statutory force, and thus could be amended.
The Division Bench noted that transfer guidelines merely lay down policy and do not confer any enforceable legal rights. It referred to the Supreme Court decision in Union of India v. S.L. Abbas (1993) 4 SCC 357 where it was held that non-statutory transfer guidelines are not enforceable in court and that transfer orders made even in transgression of such guidelines cannot be interfered with unless vitiated by malafides or statutory violations.
The court further referred to Syndicate Bank v. Ramachandran Pillai & others (2011) 15 SCC 398 where it was held that executive guidelines lacking statutory character cannot confer legal rights to seek their enforcement through courts.
The Bench examined Statutory Rule SR 2 (18) defining “transfer” as movement of a government servant from one headquarter station to another either to take up duties of a new post or due to change of headquarters, and found no violation in clubbing of stay for transfer purpose.
The court stated that it is now well settled that a transfer policy only lays down guidelines for transfer which are not statutory and are also not justiciable.
It recorded that in Union of India and others versus S.L. Abbas, the Supreme Court held that the guideline regarding transfer does not give a government employee any legally enforceable right.
The court noted that it was further held that non-statutory directions cannot be enforced in court and that a transfer order made even in breach of administrative guidelines cannot be interfered with because those guidelines do not create any legal right, unless the transfer order is shown to be affected by malafides or is in violation of a statutory provision.
It stated that in Syndicate Bank versus Ramachandran Pillai and others, the Supreme Court held that such guidelines or executive instructions are not statutory in nature and do not have the force of law.
As a result, they cannot create any legal right to seek a direction from a court to enforce compliance with such guidelines even if they are breached.
The court recorded that once the guiding principles framed by the Department of Personnel for regulating the transfer of State government employees are held to be non-justiciable and non-statutory, these guidelines, like any other, can always be altered, amended, or varied by the Competent Authority at any time.
It further noted that such guidelines fall within the area of policy which remains within the exclusive discretion and authority of the State, subject to the restrictions laid down in the Constitution of India.
The court stated that it could not understand how the clubbing of stay for the purpose of transfer would violate these provisions because it does not change the meaning of ‘transfer’.
The court stated that in this view of the matter, it agreed with the view taken by Hon’ble Mr. Justice Ajay Mohan Goel in the present case and held that the office memorandum dated 27 October 2023, which provides for clubbing of stay for the purpose of transfer of employees of the Education Department, is absolutely legal and valid.
It held that the memorandum is not contrary to Clause-10 of the Transfer Policy of the State Government dated 10 July 2013 or the mandate of Statutory Rule SR 2 (18).
The court further stated that the judgment rendered by the Coordinate Bench comprising Hon’ble Mr. Justice Ranjan Sharma in its decision dated 14 December 2023 in CWP No.8605 of 2023 titled as Anurag Chadha versus State of Himachal Pradesh and others is overruled and the question is answered accordingly.
Advocates Representing the Parties
For the Petitioners: Mr. K.S. Banyal, Senior Advocate with Mr. Uday Singh Banyal, Advocate
For the Respondents: Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General with Mr. Raj Negi, Deputy Advocate General
Case Title: Monika Katna v. State of Himachal Pradesh & others
Neutral Citation: 2024: HHC:17029
Case Number: CWP No.2734 of 2024
Bench: Justice Tarlok Singh Chauhan, Justice Sushil Kukreja
