'Politicians Cannot Don The Role Of Administration': HP HC Recommends Independent Mechanism For Transfer Of Govt Employees [Read Judgment]

Further, such orders have to necessarily be passed by after the administrative authority after due application of mind, and elected representatives (such as MLAs) cannot have a right to claim that a particular employee should be posted at a particular station.

To ensure that the 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, the Division Bench comprising Justices Tarlok Singh Chauhan and Jyotsna Rewal Dua suggested the following mechanism:

• 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.
• 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.
• 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 favorites and all employees will be treated equally and there will be no heart burning between the employees," the Court said.

It has also clarified that if a particular employee cannot be posted to a particular region due to some personal hardships, an exception can be made. However, whenever such exception is made, a reasoned order must be passed why policy is not being followed.

The detailed observations have come in a writ petition moved by one Lekh Raj, against an order relating to transfer of 7 employees, passed at the behest of an MLA. In the facts of the case, a sitting MLA of Sirmour District addressed a letter to the Chief Minister, proposing to transfer 7 employees. The same was approved by the CM, without even consulting the administrative authority.

Taking exception to employment of "political patronage" in the matters of transfer, the Bench reiterated that the Chief Minister and Ministers/ elected representatives may only "recommend" the transfer of an employee (See Sanjay Kumar v. State of HP & Ors., HLJ 2013 (HP) 1051).

"The transfer orders are ultimately to be issued by the Administrative head after independent application of mind that too after subjective satisfaction without being influenced by the recommendations so made by the elected representatives.

…elected representatives cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by administrative head i.e. Executive and not by the legislators. Where an employee is to be posted must be decided by the administration," it held.

Case Details:

Case Title: Lekh Raj v. State of Himachal Pradesh & Ors.

Case No.: CWP No. 2621/2020

Quorum: Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua

Appearance: Senior Advocate Bimal Gupta with Advocate Kusum Chaudhary (for Petitioner); Advocate General Ashok Sharma with Additional Advocates General Ranjan Sharma and Vinod Thakur and Deputy Advocate General Seema Sharma (for State)

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