IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.14546 of 2025 Decided on: 09.09. 2025 _________________________________________________________________ Jaswant Rai ....Petitioner Versus State of H.P. & Ors. …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioner: Mr. Naresh Kaul, Advocate. For the respondents: Mr. L.N.Sharma, Additional Advocate General. Jyotsna Rewal Dua, Judge Petitioner is serving as Physical Education Teacher at GSSS Baddi, District Solan, H.P.. He feels aggrieved against office order dated 05.09.2025 (Annexure P- 5), transferring him to GSSS Chandi (A), District Solan, H.P. 2. Heard learned counsel for the parties and considered the case file. 3. The case 3(i) In terms of para-2 of the writ petition, petitioner was transferred to GSSS Baddi, on 27.11.2020. He is seving 1 Whether reporters of Local Papers may be allowed to see the judgment? yes - 2 - at the said station eversince. 3(ii) On 29.08.2023, respondents transferred the petitioner from GSSS Baddi to GHS Sarma, District Solan. Petitioner assailed the said transfer order in CWP No. 6041 of 2023, primarily on the ground that the same was issued on the basis of a D.O note. Looking to the record produced by the respondents and the incumbency position of the petitioner, impugned office order dated 29.08.2023 was quashed and set aside qua the petitioner. CWP No.6041 of 2023 was accordingly allowed and disposed of on 13.09.2023 with liberty reserved to the respondents to consider the case of transfer of petitioner afresh in accordance with law and applicable policy as also taking into consideration his incumbency. The judgment reads as under:- “Heard. 2. Petitioner is aggrieved against office order dated 29.08.2023 (Annexure P-3), which transfers him from GSSS Baddi, District Solan to GHS Sarma, District Solan. The petitioner, who is serving as Physical Education Teacher at GSSS Baddi, District Solan, has assailed the transfer order primarily on the ground that the same was issued merely on the basis of a D.O. note issued by respondent No.4. 3. The respondents have produced the record. - 3 - Learned Additional Advocate General has also placed on record copy of instructions memo dated 08.09.2023, giving incumbency position of the petitioner. It was fairly submitted that the transfer of the petitioner was ordered merely on the basis of a D.O. note without the Department applying its independent mind to the proposal of petitioner’s transfer mooted at the instance of respondent No.4. 4. On that ground alone, the impugned office order dated 29.08.2023 (Annexure P-3) is quashed and set aside qua the petitioner. However, it shall be open to respondents No.1 to 3 to consider the case of transfer of the petitioner afresh in accordance with law and applicable policy as also taking into consideration his incumbency. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.” 3(iii) On 05.09.2025, respondents issued office order transferring petitioner from GSSS Baddi to GSSS Chandi (A) District Solan without TTA/JT. This ordr has been impugned in the present petition. 4. Consideration Learned counsel for the petitioner contends that number of students at GSSS Baddi is 1376 and service of the petitioner is more required at the present station than at GSSS Chandi (A); The petitioner had not requested for his - 4 - transfer, yet TTA/JT has not been provided to him. Learned Additional Advocate General has produced the record relating to the petitioner’s transfer. I have pursued the record, wherein, respondents have justified their action of transferring the petitioner from present place of posting. It is otherwise also seen that petitioner was posted at the present place on 27.11.2020. He, by now, has completed almost five years at GSSS Baddi, therefore, he liable to be transferred. At this stage, it would be in place to refer to Sri Pubi Lombi Vs. The State of Arunachal Pradesh and Ors2, wherein, the Hon’ble Apex Court after considering several precedents on the scope of judicial review in transfer matters, held that in absence of pleadings regarding malafide, non-joining the person against whom allegations are made, violation of any statutory provision, allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercise of the jurisdiction under Article 226 of the Constitution of India. 2 2024 SCC Online SC 279 - 5 - Relevant portion of the judgment reads as under:- “9. In the case of Union of India and others Vs. S.L. Abbas; (1993) 4 SCC 357, it is clearly observed by this Court that the scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide, non-observation of executive instructions does not confer a legally enforceable right to an employee holding a transferable post. The relevant paragraph reads as under: “7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject……..” 9.1 Further, following the footsteps of S.L. Abbas (supra) this Court in the case of Union of India and another Vs. N.P. Thomas; 1993 Supp (1) SCC 704 held that the interference by the Court in an order of transfer on the instance of an employee holding a transferrable post without any violation of statutory provision is not permissible. 9.2 This Court further curtailed the scope of judicial review in the case of N.K. Singh Vs. Union of India and others; (1994) 6 SCC 98 holding that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to public interest. It was further reiterated that interference is only justified in a case of malafide or infraction of any professed norm or principle. Moreover, in the cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference to the transfer must be eschewed. It is further held that the evidence requires to prove such transfer is prejudicial and in absence thereof - 6 - interference is not warranted. The law reiterated by this Court is reproduced, in following words: - “9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset. XXX XXX XXX “23. …….Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.” “24. …Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised.” 9.3 The issue involved in the present case is somewhat similar in the case of Mohd. Masood Ahmad Vs. State of U.P. and others; (2007) 8 SCC 150 wherein this Court in paragraph 8 has observed as thus: - “8. ….. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself - 7 - would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee……” 9.4 It is not tangential to mention that this Court in the case of State of Punjab Vs. Joginder Singh Dhatt; AIR 1993 SC 2486 observed as thus: - “3……..It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting………” 9.5 It is also imperative to refer the judgement of this Court in the case of Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and Ors.; (2013) 1 SCC 524 where it reiterated one of the pertinent principles of administrative law is that when allegations of malafide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. The relevant excerpt is reproduced as thus: “27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned……..” 10. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a - 8 - transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.” 5. In the given facts of the case, where petitioner on completion of five years at the present place of posting has been transferred under the impugned order, interference in exercise of extra ordinary jurisdiction is not warranted. The petition, therefore, fails and is dismissed accordingly. Respondents, however, are directed to release due and admissible TTA/JT to the petitioner. Pending miscellaneous application(s), if any also to stand disposed of. Jyotsna Rewal Dua Judge September 9, 2025 R.Atal