Punjab and Haryana High Court sets aside transfer order, raps state - ECAS Punjab

Punjab and Haryana High Court sets aside transfer order, raps state

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Saurabh Malik

Tribune News Service

Chandigarh, October 5

Putting an end to the controversy over the applicability of Punjab's transfer policy, the Punjab and Haryana High Court has made it clear that the state's stand regarding it being merely directory in nature and not mandatory was totally misconceived.

In legal terms, directory means a provision that is a mere direction or an instruction with no obligatory force. It does not involve invalidating consequence for its disregard as opposed to an imperative or mandatory provision.

The assertion by Justice Arun Monga came in a case where the petitioner, who joined as a medical officer, was transferred from Patiala to Bathinda. The petitioner alleged he was uprooted in gross violation of transfer policies to extend undue benefit to a respondent-officer, who remained posted at Patiala for more than two decades before transfer to Bathinda. The petitioner contended he was having just about a year of service before his superannuation.

Setting aside the transfer order after rapping the state for favouritism, Justice Monga asserted factually it emerged that the respondent remained posted at or within the territory of Patiala for over two decades on one post or the other. Referring to the transfer policy dated April 23, 2018, Justice Monga asserted it revealed the petitioner's transfer, apparently, was in its gross violation.

Administrative exigency warranting his transfer before completion of three years in Patiala was not evident. Special reasons were also not recorded to deny the benefit of transfer protection owing to the petitioner's impending retirement. Justice Monga added the state's argument that the government policy was merely directory and not mandatory, in abstract, might sound correct, but not when tested on the touchstone of equity, balance of convenience and principles of justice. A policy might not be mandatory, but it "most definitely" provided guidelines to be followed ordinarily by the administrative superiors.

At times implementation in strict letter might not be possible, but the spirit of administrative transparency envisaged therein was not to be eroded altogether. Also, the policies did not prohibit, but merely stipulated recording of special reasons in certain transfer cases. Holding that the reasons were required to be recorded for non-compliance of policies, Justice Monga added: "Why waste time and energy in drafting and circulating such policies, if without any plausible reasons they are to be completely disregarded".

from The Tribune https://ift.tt/30CGiAr

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