Legislators cannot act as administrators: Himachal HC junks transfer orders

The high court of Himachal Pradesh has ordered that posting of an employee on a particular station should be decided by administrative heads and not by the legislators

The high court of Himachal Pradesh has ordered that posting of an employee on a particular station should be decided by administrative heads and not by the legislators.

The court said 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. (iStock)

The orders were passed on a civil writ petition filed by one Babu Ram, head of a primary school in Sundernagar in Mandi, who was transferred on recommendation of a politician.

Quashing the transfer, the division bench comprising justice Tarlok Singh Chauhan and justice Satyen Vaidya, held that in the instant case, there was no independent decision taken by the administrative head and the decision has been rendered vulnerable as being influenced by the proposal and recommendations made by the local MLA.

The court said the chief minister, ministers and elected representatives may recommend the transfer of an employee, however, the transfer orders are ultimately to be issued by the administrative head by independent application of mind and after subjective satisfaction without being influenced by the recommendations.

The MLAs or ministers concerned have right to make a recommendation 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, the court observed.

The court said 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 the 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 politicians cannot don the role of administration.”

“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 executive and not by the legislators,” the court said.

The court said whenever transfer order is on recommendation of minister or MLA, views of the administrative department are essentially to be sought in matters of transfer.

“What follows is that views of the administrative department should reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and/or public interest or effective utilisation of his/her services,” said the court.

Adverting to the present case, 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, public interest or efficient utilisation of the services of the petitioner, it added.