SHIMLA: The Himachal Pradesh high court has observed that a transfer is mala fide when not made for professed purpose in the normal course, public or administrative interest, or exigencies of service, but based on written recommendation of someone not connected with the state government’s affairs.
The bench of justice Ranjan Sharma said that even when a transfer is made on the written recommendation of a minister or a legislator, there must be some cogent and convincing reason of public interestor administrative exigency to justify it.Transfers on the mere asking of these functionaries are unfair, unjust, and against the test of Articles 14 (equality before law) and 16 (equal opportunity) of the Constitution.
The verdict suggests that in those cases where an order of transfer appears to be innocuous and against the pre-requisites, “the court is competent to examine its actual foundation and nullify the order for the sake of fairness, reasonableness, non-arbitrariness, and uniform application of transfer rules, besides preventing perversity and mala fide arbitrariness in the state action”.
The high court made these observations while disposing of the petition of a teacher who had submitted that the directorate of elementary education had defied the HC’s directions by rejecting her representation. Claiming to have been shifted illegally, arbitrarily, and for extraneous considerations, she asked to be considered in terms of the transfer policy.
The court quashed and set aside the department’s October 10 orders of rejecting the petitioner’s representation for transfer from Kaffotta’s senior secondary school in Sirmaur district for a soft posting.
The court directed the department to consider the matter afresh.