2023 (9) TMI 170 - HC - Indian Laws

Constitutionality of transfer notification - Transfer of Joint Commissioner of state tax - Petitioner assailed his transfer order before the then Himachal Pradesh Administrative Tribunal, however, in the meanwhile his transfer order was cancelled and petitioner was allowed to continue as AETC Sirmaur at Nahan - huge tax evasion - HELD THAT - Petitioner is Class-I Gazetted Officer. As a matter of fact, petitioner has remained posted at Parwanoo since December, 2020. There is no gainsaying that the transfer is an incidence of service. The employer has unfettered power to effect transfer save and except for extraneous reasons. A government servant holding a transferable post, neither holds a fundamental nor legal right to remain posted at one place or the other. In the case in hand, the petitioner has made an attempt to show that the reasons for his transfer from Parwanoo to Shimla are not bonafide. Reliance has been placed on the order passed by the Company Court in Co. Pet. No. 13 of 2014, whereby the petitioner was authorised to conduct the sale of assets of wound-up company named M/s Indian Technomac Pvt. Ltd. It has also been propagated that the petitioner had detected the invasion of huge amount of taxes by M/s Indian Technomac Pvt Ltd. Company and it was for such reason that he was repeatedly posted at Nahan, Paonta Sahib or Parwanoo - the case of the petitioner is that the official respondents have some hidden purpose to see that the petitioner does not remain involved in the matter of M/s Indian Technomac Pvt. Ltd. Company - It is more than settled that the allegations of malafide have to be specifically pleaded and then have to be proved by cogent material. There is no material on record to infer that there is any motive of the government in transferring the petitioner from Parwanoo to Shimla. Mere fact that the official respondents have passed orders four times to transfer petitioner within a span of last seven years is not sufficient to infer any motive of the employer in doing so, much less a motive which can be termed as oblique or ulterior. Even the transfer policy adopted by the State Government does not reserve any privilege of being not transferred before a minimum period of time for Class I, Gazetted officer(s). Rather, the flipside of the facts as have merged can be the unwillingness of the petitioner himself to be get detached from the affairs of Indian Technomac Limited. The petitioner has been discharging the duties assigned to him by Hon ble Company Court for the last about three years, while having his place of posting at Parwanoo. It is noticeable when the petitioner can discharge his duties as assigned to him by the Company Court while sitting at Parwanoo, why cannot he achieve from Shimla. In case of any complaint with respect to lack of facilities, he can always make his request to the authorities and the Company Court as well and in such event, it will be for Hon ble Company Court to pass appropriate orders in the best interest of adjudication of the lis before it. The petitioner has not been able to make out a case for himself and in result the petition is dismissed.

Summary

Issues Involved:
1. Legitimacy of the transfer order dated 29.04.2023.
2. Allegations of malafide intentions and oblique motives behind the transfer.
3. Compliance with the transfer policy and administrative exigency.
4. Petitioner's right to remain at a specific posting.
5. Judicial review of transfer orders under Article 226 of the Constitution.

Summary:

Legitimacy of the Transfer Order:
The petitioner, a Joint Commissioner of State Taxes and Excise, challenged the transfer order dated 29.04.2023, seeking to quash it and allow him to continue at his current posting until the completion of work related to M/s Indian Technomac Pvt. Ltd. The petitioner argued that the transfer was arbitrary, unconstitutional, and against the state's transfer policy.

Allegations of Malafide Intentions:
The petitioner alleged that the transfer was motivated by nepotism and intended to accommodate respondent No. 3 in his home district. He cited multiple instances of his previous transfers, suggesting a pattern of keeping him away from the affairs of Indian Technomac Pvt. Ltd. The petitioner claimed to have detected significant tax evasion by the company and argued that his involvement was crucial for the ongoing sale of the company's assets.

Compliance with Transfer Policy and Administrative Exigency:
Respondents No. 1 and 2 denied any ulterior motives, stating that the petitioner had completed his tenure at Parwanoo. They argued that the petitioner had no vested right to remain at a specific posting and that his transfer was in line with administrative needs. They also mentioned pending departmental and vigilance inquiries against the petitioner.

Petitioner's Right to Remain at a Specific Posting:
The court reiterated that transfer is an incidence of service and an employee has no fundamental right to remain posted at a particular place. The scope of judicial review of transfer orders is limited, and such orders should not be interfered with unless proven to be malafide or in violation of service rules.

Judicial Review of Transfer Orders:
The court found no substantial evidence to support the petitioner's allegations of malafide intentions. The petitioner failed to provide specific and cogent material to prove bad faith on the part of the authorities. The court emphasized that allegations of malafide require a high degree of proof and should be supported by clear evidence.

Conclusion:
The court dismissed the petition, stating that the petitioner had not made out a case for himself. The petitioner's transfer from Parwanoo to Shimla was upheld, and the court found no reason to interfere with the administrative decision. All pending applications were also disposed of.