Shimla, Sep 8 Categorically laying down that the politic cannot don the role of administration, the Himachal Pradesh High Court has ruled the legislators or the minister concerned have the right to make recommendations on the transfer of a government employee, but these cannot be taken to be the final word.
"The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent in the present case," a division bench of Justices Tarlok Singh Chauhan and Satyen Vaidya said, while setting aside a transfer order of a primary teacher issued on April 23.
"We live in a democracy and our elected representatives under the Constitution are to work in the legislature and not as administrators.
"They cannot start interfering in the administration or the working of the executive. It is they (administrative heads) who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politic cannot don the role of administration," the bench said.
The judges, in the order dated September 6, further held that the elected representatives cannot have a right to claim that a particular employee should be posted at a particular station.
"The choice has to be made by administrative head i.e. executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or a minister. They can always send back a proposal showing why the same cannot be accepted."
Lastly, the judges said, it is held that whenever any transfer is ordered not by the departments but on the recommendations of a minister or an MLA, then before ordering the transfer, the views of the administrative department must be ascertained.
"What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and/or public interest or that the transfer of employee is necessary for the effective utilisation of his/her services."
In the present case, the court said, the order of transfer cannot withstand judicial scrutiny as "the same does not show that the petitioner has been transferred on account of administrative exigency and/or public interest".
"The record further does not reveal that the transfer has been effected for the efficient utilisation of the services of the petitioner and he has been transferred merely on the basis of the recommendations made by the political executive. In the given facts and circumstances, the action of the respondents cannot be countenanced and sustained. Accordingly, the instant petition is allowed," it said.
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