"Can't Silence Voice Of Dissent Through Administrative Arbitrariness": HP High Court Sets Aside Transfer Made On Politician's Note

The Bench of Justice Justice Tarlok Singh Chauhan and Justice Satyen Vaidya was hearing the plea of one Pradeep Kumar, presently working as senior assistant with the State Electricity Board.

Importantly, setting aside the transfer order, the Court held that if such transfer is allowed to take effect, it would embolden the other political cadre and influential local level politicians of all hues to seek the transfer of unfavorable and upright government officials from their pocket boroughs and to see that they are posted somewhere else.

"This would demoralize the government servants, as the case may be, and may inspire them to amend their ways in such a way of pleasing each and everyone whoever come under the banner of some political party," the Court further opined.

The matter in brief

Kumar challenged his transfer alleging that the same had been effected neither in administrative exigency nor in the public interest, but on the basis of a note issued by someone, who had nothing to do with the Administration and the governance of the State Electricity Board.

The said note was sent to the Chief Minister of Himachal Pradesh by the Chairperson of the Rural Development Bank Ltd., who had nothing to do with the working of the Administrative Department of the petitioner.

In the said letter, the politician had sought the transfer of the petitioner alleging that he (along with others) has been indulging in party politics and therefore, contaminating the working culture in their organization/institutes.

Court's observations

Taking into account the fact that the transfer was actually given effect on the basis of the said letter, the Court observed thus:

"We are appalled to note that the transfer of the petitioner has been effected on the basis of the recommendations made by a politician, who as stated above, has no concern or connection with the Administration or functioning of the respondent-Board."

The Court further underscored that since our Country follows the British system of a non-political bureaucracy, hence, it is for the bureaucrats, and not for the politicians, to effect transfers and postings.

"These public servants are in service by virtue of dint of their hard work and majority of them have entered the service through a selection process and not because of the blessings of the politicians," the Court noted.

Stressing that the politicians cannot don the role of administration, the court further termed it as 'unfortunate' that cases are coming up repeatedly before the Court, in which the transfer orders or transfer cancellation orders unabashedly and brazenly state that the transfer was being done by or at the instance of persons, who have no role, position or authority in the administration of the department.

Against this backdrop, the Court observed thus:

"The result of such political interference in the matter of transfers and postings of government servants is that the government servants get demoralized and they become affiliated to some political party or politician, which is wholly destructive of all norms of administration…When the Court notices gross irregularities being committed by the Government, Board/Corporation in the matters of transfer, it becomes necessary for the court to interfere. Therefore, it is time to turn the searchlight on the State Government, Board/Corporation, as the case may be, and remind them that the transfer policy should not be taken lightly and or made a mockery or a tool to transfer the employees on the whims and fancies of the politician."

Further, adverting to the facts of the case, the Court said that if at all there was any complaint regarding the work and conduct of the persons proposed to be transferred including the petitioner, then the only legitimate legal course open was that of taking disciplinary action by initiation of disciplinary proceedings.

"The transfer cannot be used as a medium to scuttle or choke the voice of dissent… The voice of dissent cannot be silenced through administrative arbitrariness," the court observed.

Consequently, the transfer order was set aside and the petiton was allowed and the Government was advised not to entertain such extra constitutional authority to interfere with the administration and governance of the State, or else, the Court noted, there is every likelihood of there being a complete breakdown of rule of law.

Case title - Pradeep Kumar v. The State Electricity Board Ltd. and Others

Click here To Download Order

Read Order