Transfer Policy Is Non-Statutory and Non-Justiciable; Himachal Pradesh High Court Upholds Validity & Legality of Clubbing Employee Stay for Transfer Purposes

The Himachal Pradesh High Court held that it is well-settled that transfer policy merely lays down the guidelines for transfer which are not only non-statutory but also non-justiciable. Accordingly, the Court observed that the clubbing of stay for the purpose of transfer of an employee does not violate the Transfer Policy of the State and does not alter the meaning of “transfer”.

A Writ Petition was referred to the Division Bench of the Himachal Pradesh High Court regarding the issue whether the clubbing of stay for the purpose of transfer of employees of the Education Department is contrary to Clause-10 of the Transfer Policy of the State Government.

The Division Bench of Justice Tarlok Singh Chauhan and Justice Sushil Kukreja observed, “In this view of the matter, we respectfully agree with the view taken by Hon’ble Mr. Justice Ajay Mohan Goel, in the instant case and hold that the office memorandum dated 27.10.2023 which provides for clubbing of stay for the purpose of transfer of employees of the Education Department is absolutely legal and valid and not contrary to Clause-10 of the Transfer Policy of the State government dated 10.07.2013 and/ or the mandate of Statutory Rule i.e. SR 2 (18), as held by a Coordinate Bench (Hon’ble Mr. Justice Ranjan Sharma) in its decision dated 14.12.2023 passed in CWP No.8605 of 2023 titled as Anurag Chadha versus State of Himachal Pradesh and others and consequently, the judgment so rendered is overruled and the question is answered accordingly."

Senior Advocate K.S. Banyal represented the Petitioner, while Advocate Ramakant Sharma represented the Respondents.

Case Brief

The question before the Court was whether clubbing of stay for the purpose of transfer of employees of the Education Department is contrary to Clause-10 of the Transfer Policy of the State Government.

The petitioner had assailed order of transfer wherein she had been transferred as a Trained Graduate Teacher (Medical) from GHS Khianpatt, District Kangra to GSSS, Chobia (Bharmaur), District Chamba, H.P. This transfer had been effected by clubbing her previous stay in and around GHS, Khianpatt, District Kangra. The transfer order was assailed on the ground that the respondents could not have clubbed her previous stay as it was against the judgment passed by the Himachal Pradesh High Court in Anurag Chadha versus State of Himachal Pradesh (2023).

However, the question in the said case was referred to a larger bench by Justice Ajay Mohan Goel.

Court’s Analysis

The Court opined that transfer policy merely lays down the guidelines for transfer which are not only non-statutory but even non-justiciable. Thus, such guidelines like any other guidelines can always be altered or amended or varied by additions/subtractions by the Competent Authority from time to time, even if, the effect thereof is to supplement or for that matter supplant the earlier provisions.

“In addition to the above, it is more than settled that where the Constitution does not require an action to be taken only by legislation or there is no existing law to fetter the executive power of the Union (or a State, as the case may be), the Government would be not only free to take such action by an executive order or to lay down a policy for the making of such executive orders as occasion arises, but also to change such orders or the policy itself, as often as the Government so requires, subject of course to the conditions that such change must be made in the exercise of a reasonable discretion and not arbitrarily. It has to ensure that such change complies with Article 14, so that the persons equally circumstanced are not treated unequally and it would otherwise be subject to judicial review”, the Court added.

While referring to the definition of “transfer” in State Rules, the Court observed that the clubbing of stay for the purpose of transfer of an employee does not alter the meaning of “transfer”.

The Division Bench observed that, “Once the guiding principles framed by the Department of Personnel regulating the transfer of State government employees are held to be non-justiciable as well as non-statutory, therefore, such guidelines like any other guidelines can always be altered or amended or varied by additions/subtractions by the Competent Authority from time to time, even if, the effect thereof is to supplement.”

Accordingly, the Petition was decided and the Himachal Pradesh High Court overruled its earlier judgment in Anurag Chadha versus State of Himachal Pradesh and Ors (2023).

Cause Title: Monika Katna V. State of Himachal Pradesh (Neutral Citation: 2024:HHC:17029 )

Appearance:

Petitioner: K.S. Banyal, Senior Advocate with Advocate Uday Singh Banyal.

Respondents: Advocates Ramakant Sharma, Navlesh Verma, Sharmila Patial ( Additional Advocates General) Raj Negi (Deputy Advocate General)

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