High Court: Transfer requests near retirement not absolute right

Saurabh Malik

Chandigarh, March 9

In a significant judgment liable to change the way employees assail orders to shift them from one place to another at the fag-end of their career, the Punjab and Haryana High Court has made it clear that they do not enjoy complete privilege to halt the transfer process on the ground of impending retirement.

A clause in this regard cannot, in fact, be construed as an absolute right.

The ruling by Justice Vikas Bahl came on a petition filed against the State of Haryana and other respondents by a police official. He was seeking the quashing of orders passed by Karnal Range Inspector-General of Police, vide which he was transferred from Panipat district to Karnal district.

Among other things, his counsel referred to instructions issued in 1989 and 1998 before contending that a person should not be transferred in case he was to retire within two years.

After hearing arguments in the matter and going through the documents, Justice Bahl asserted there was no dispute that the respondent-authorities had the power to transfer. The petitioner had neither alleged malafide, nor impleaded, any officer by name in the petition.

Justice Bahl added that reliance placed upon the instructions by the petitioner did not further his case. Discretion had been given under the clause to the government against transferring a person scheduled to retire within two years, amended to one year as per the instructions dated November 19, 1998.

The fact regarding discretion stood fortified from the usage of the word “may” in a sub-clause of the instructions. It could not be construed to give an absolute right to an employee to stall his transfer on the ground that he was about to retire.

“An enabling power of the government cannot be construed as an enforceable right of the petitioner.”

Justice Bahl was also of the view that reliance on another clause on a police officer’s transfer by the petitioner after he had completed three years’ tenure was also misplaced. It was nowhere mentioned that an employee could not be transferred prior to the period, even on account of administrative exigencies “as arisen in the present case in view of the ensuing elections”.

“Keeping in view the above-said facts and circumstances, the present writ petition is meritless and deserves to be dismissed and is accordingly dismissed,” Justice Bahl concluded.