2023:HHC:7302-DB

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1485 of 2023.

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Date of decision: 10.04.2023.

Rajesh …..Petitioner.

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Versus
Himachal Pradesh State Electricity

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Board Limited and others …..Respondents.

Coram rt
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?1 Yes
For the Petitioner : Mr. Sanjeev Bhushan,
Senior Advocate with
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Mr. Rakesh Chauhan,

Advocate.
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For the Respondents : Ms. Ruma Kaushik,

Advocate, for respondent
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No.1.

Mr. Yashwardhan Chauhan,

Advocate, for respondent
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No.2.

Tarlok Singh Chauhan, Judge (Oral)

Even though this petition is directed against the

order of transfer, however, a perusal of the records goes to

reveal that both the petitioner as also private respondent

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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working as Assistant Engineers, being Class-I, have been

pulling strings for their transfer and posting on the stations

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of their choices and have managed their postings

continuously for more than three decades in and around

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Shimla.

2. While dealing with an issue where employees

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working under the State Government had been seeking

their postings only in Shimla and had infact formed some

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sort of cartel, this Court in Sheela Suryavanshi vs. State
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Of H.P. & Ors., 2020 Labour Industrial Cases 3907

observed as under:
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“18. Off late, this Court has seen a surge in litigation

relating to transfer. The State of Himachal unlike other
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States is not evenly or uniformly developed in matters

of basic infrastructure like education, health services
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etc. It is for this reason and rightly so that every

employee tries to make an endeavour to seek posting
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in the district or tehsil headquarters where the

infrastructure is relatively well developed. This we
observe on the basis of the statistics relating to
Shimla alone, where floating population is equal to
permanent population. Most of these migration in
urban areas is directly related with education of
children and thereafter it could be for other purposes
like better health facilities etc.

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19.We further notice that because of cartel created

by few of the employees serving in the urban and

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semi urban areas of Himachal Pradesh, the influential

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employees manage to secure their postings in and
around urban areas, leaving practically no room for

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the other employees.
20.The instant case is one such classical example,
which reflects the modus operandi being resorted to

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by these teachers on completion of their tenure by
seeking mutual transfer or creating artificial
vacancies and thereafter getting each one adjusted
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in such vacancies.
21. It cannot be ignored that not only the State or
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Country but the whole world is in the grip of
pandemic COVID-19, because of which students
cannot be taught physically in the class rooms and
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are being taught through online classes.

22. In such circumstances, the respondents are not
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only duty bound but are mandated by law to ensure

that no monopoly in the matters of transfers is
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created in favour of selected fews but an endeavour

has to be made to accommodate maximum number
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of teachers whose children are appearing for the

board examination or examination for professional
courses. These students can only study and attend
classes on line if there is adequate and desired band-
width. Even otherwise the facilities of tuition and
coaching classes on online are mainly available in
these places i.e. the district and tehsil headquarters,
therefore, also the State is required to adopt a fair
and transparent policy of transfer by calling for the

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details of all the teachers whose children are to

appear in the Board exam or examination for

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professional courses like MBBS, AIEEE etc. This would

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not only bring about an end to the monopoly created
in favour of few teachers but would also ensure

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benefit to the student community as a whole.
23.The Central Government, State Governments and
likewise all public sector undertakings are expected

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to function like a ‘model employer’. A model
employer is under an obligation to conduct itself with
high
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employer, who is duty bound to act as a model
employer has obligation to treat its employees
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equally and in appropriate manner so that the
employees are not condemned to feel totally
subservient to the situation. A model employer
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should not exploit the employees and take

advantage of their helpless and misery.
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24. The action of the State must be reasonable,

fair, just and transparent and not arbitrary, fanciful
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or unjust. The right of fair treatment is an essential

ingredient of justice. Exercise of unbridled and
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uncanalised discretionary power impinges upon the

right of the citizen; vesting of discretion is no wrong
provided it is exercised purposively judiciously and
without prejudice. Wider the discretion, the greater
the chances of abuse. Absolute discretion is
destructive of freedom, than of man’s other
inventions. Absolute discretion marks the beginning
of the end of the liberty.

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25. It was observed by Wades Administrative Laws,

5th Edition at page 347 that “The first requirement is

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the recognition that all powers have legal limits, the

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next requirement, no less vital, is that the Court
should draw this limit in a way which strikes the

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most suitable balance between executive efficiency
and legal protection of the citizen. Parliament
consistently confers upon public authorities powers

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which on their face seem absolute and arbitrary. But
arbitrary power and unfettered discretion are what
the Courts refuse to countenance. They have woven
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a net-work of restrictive principles which require
statutory powers to be reasonable and in good faith
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and in accordance with the spirit and letter of the
empowering Act.” At page 359, it was also observed
that “Discretion of a statutory body is never
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unfettered. It is a discretion which is to be exercised

according to law. That amounts at least to this that
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the statutory body must be guided by relevant

consideration and not irrelevant. If its decision is
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influenced by extraneous consideration which ought

not have taken into account, then the decision
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cannot stand. No matter that the statutory body

may have acted in good faith, nevertheless, the
decision will be set-aside.”
26. Here, it shall be apposite to make a
reference to the judgment of the Hon’ble Supreme
Court in New India Public School vs. Huda
(1996) 5 SCC 510, wherein it was observed that
when public authority discharges its public duty, it
has to be consistent with the public purpose and

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clear and unequivocal guidelines or rules are

necessary and the same cannot be acted at the

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whim and fancy of the public authorities or under

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their garb or cloak for any extraneous consideration.
27.The concept of reasonableness and non-

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arbitrariness pervades the entire constitutional
spectrum and is a golden thread which runs through
the whole fabric of the Constitution. Thus, Article 14

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read with Article 16(1) of the Constitution accords
right to an equality or an equal treatment consistent
with principles of natural justice. Therefore, any law
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made or action taken by the employer, corporate
statutory or instrumentality under Article 12 must
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act fairly and reasonably. Right to fair treatment is
an essential inbuilt of natural justice.
28.As observed above, exercise of unbridled and
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uncanalised discretionary power impinges upon the

right of the citizen; vesting of discretion is no wrong
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provided it is exercised purposively, judiciously and

without prejudice.
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29. The main concern of the Court in such matters is

to ensure the Rule of law and to see that the
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executive acts fairly and gives a fair deal to its

employees consistent with the requirements of
Articles 14 and 16 of the Constitution. It also means
that the State should not exploit its employees nor
should it seek to take advantage of their helplessness
and misery. As is often said, the State must be a
‘model employer’.”

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3. No employee(s) in the service of the State, was it

statutory Board and Corporation etc., can be so

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indispensable that he/they cannot be transferred out of

Shimla so as to afford a chance towards similarly situated

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persons to serve in the State Capital.

4. This Court in CWP No.6284 of 2021 titled

of
Harinder Singh vs. Himachal Pradesh State Electricity

Board Limited and another, decided on 02.12.2021, while

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deprecating the practice of favouritism in matters of
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transfer observed as under:

“2.The petitioner was appointed as Clerk in the

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respondent-Board in the year 1992 and thereafter

promoted to the post of Senior Assistant. Later, vide
office order dated 30.6.2020, he was promoted to the
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post of Superintendent (Grade-II) and ordered to be

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transferred from Electrical Sub Division Bagthan

under Electrical Division Nahan to Electrical Sub
Division Totu, Shimla. The petitioner joined at Totu on
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14.7.2020 and vide office order dated 29.9.2021, has

been ordered to be transferred to Boards Secretariat,
Shimla vice respondent No.2, Ranju Sharma.

3. On the other hand, respondent No.2 ever since

her appointment in the year 1998 and despite three
promotions has only served in Shimla and even now
while she was ordered to be transferred from
Electrical System Division Totu to Boards Secretariat

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Shimla, has been accommodated against the

interest of the petitioner by posting her at Electrical

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System Division Totu.

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4. If this was not enough, the official respondent has
been over enthusiastic in contesting the case

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knowing fully well that its action is absolutely illegal
and smacks of favouritism and nothing more.

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5.The official respondent has gone to the extent of
preparing statement of incumbency of the petitioner,
but would not disclose the incumbency of
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respondent No.2, who, as stated above, has served
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only in Shimla.

6.The Central Government, State Governments and

unlike all public sector undertakings are expected to
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function like a model employer. The model employer

is under an obligation to conduct itself with high
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probity and expected candour and the employer,

who is duty bound to act as a model employer, has
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social obligation to treat its employees in an

appropriate manner so that an employee is not
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condemned to feel totally subservient to the

situation. A model employer should not exploit its
employees and take advantage of their helplessness
and misery.

7. In the present case, conduct of the official

respondent is reprehensible and falls short of
expectation of a model employer and to say the
least, the official respondent has indulged in

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favouritism thereby driven the petitioner to

unnecessary and avoidable litigation.

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8. It needs to be noticed that transfer of respondent
No.2 was ordered to be effected within stone’s throw
distance, yet she again managed to have modified

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the transfer and stayed in a comfort zone.

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9. Since the impugned transfer order has been
effected not on account of administrative exigency or
public interest, but on favouritism, the same cannot
sustain and is ordered to be quashed and set aside.
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10. Normally, in the given facts and circumstances,
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we would have passed mandatory direction to the
official respondent to transfer respondent No.2 to a
far flung and remote area, so that she could
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understand the pangs of separation along with

discomfort and distress, which normally an
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government employee undergoes when transferred

from his/her comfort zone, however taking into
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consideration the fact that respondent No.2 is due to

retire shortly, we desist from passing any order for
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the time being, however in case the official

respondent contemplates to transfer Superintendent
Grade-II, then it will be first respondent No.2, who
shall be transferred outside Shimla District.

11. Before parting, we need to observe that the role

of the respondent-Board as a model employer has
been deliberated upon by us with the fond hope that
in future a deliberate disregard is not taken recourse

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to and deviancy of such magnitude is not adopted to

frustrate the claims of the genuine employees. It

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should always be borne in mind that legitimate

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aspirations of the employees are not guillotined and
a situation is not created where hopes end in

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despair.

12.Hope for everyone is gloriously precious and a

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model employer should not convert it to be deceitful
by playing a game of chess, that too, entrenched in
favouritism. A sense of calm sensibility and concerned
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sincerity should be reflected in every step. An
atmosphere of trust has to prevail and when the
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employees are absolutely sure that their trust shall
not be betrayed and they shall be treated with
dignified fairness then only the concept of good
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governance can be concretized. We leave it at that.”

5. Since, both the petitioner as well as private

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respondent have not only feigned ignorance regarding the

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works and ethics of the Department but their conduct is

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otherwise not befitting the office they are holding, therefore,

both of them are required to be posted/transferred out of

their present place of posting, as granting an indulgence to

any one of the parties in this case would be causing

manifest injustice to the other Engineers, who are desirous

to serve in Shimla but have failed to get posting because of

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the cartel formed by the influential Engineers like the

parties in the instant case. This Court is not inclined to

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exercise its discretion in favour of any of the parties “as

justice is not on their side”.

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6. In such circumstances, we see no reason to

interfere with the transfer order, but would direct respondent

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No.1 to post one of the incumbents in District Lahaul & Spiti

and other in District Kinnaur and report compliance before

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the next date.
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7. The petition stands disposed of in the aforesaid

terms so also the pending application, if any.

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8. For compliance, to come up on 01.05.2023.

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(Tarlok Singh Chauhan)

Judge
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(Virender Singh)
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Judge
10th April, 2023.
(Vinod/krt)

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