CWP-13576-2022 (O&M) – PUNJ HC – While interpreting State policy, HC does not commit violence to policy by providing something that is not contained therein: P&H HC – Justice Vinod S Bhardwaj [20-06-2022]

Read Order: Naresh Kumar And Others v. State Of Haryana And Others

Monika Rahar

Chandigarh, June 30, 2022: While dealing with a petition seeking the quashing of the Transfer Drive 2022 to the extent the petitioners were proposed to be transferred, the High Court of Punjab and Haryana has held that while interpreting a policy, the High Court does not commit violence to the policy by providing in the policy something that is not contained therein.

“High Court cannot re-write the policy for the State or hold any clause to be badly embodied, more so, when the policy itself is not a subject matter of challenge”, the Bench of Justice Vinod S Bhardwaj held while also asserting:

“Needless to mention that the cadre of Taxation Inspector is a State Cadre and transfer and posting is an incidence and condition of service. The prerogative of the State to deploy its resources cannot be steered by the Court. The same is the primary domain of the Executive unless exercise of such executive discretion is infested with malice, caprice, arbitrariness, inherent lack of jurisdiction or as a means of inflicting punishment or satisfy the judicial conscience about being gross abuse of the authority of law or complete disregard to the Rule of Law.”

The instant writ petition was filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the Transfer Drive 2022 to the extent the petitioners were transferred forcefully as per the list dated June 10, 2022.

It was the case of the petitioners’ counsel that the Government of Haryana notified the online transfer policy for Taxation Inspector, Assistant Field Cadre and Clerks of Field Cadre in the Excise and Taxation Department. He contended that the said policy prescribes a minimum tenure of 05 years for an employee at a station before he can be transferred under the policy.

By making a reference to the Online Transfer Policy, the Counsel for the petitioners vehemently argued that the petitioners did not complete the prescribed tenure of 05 years and therefore, they could not be ordered to be transferred. A special reference was made to Clause 6 (iii) and (iv) to contend that the employee who has not completed the prescribed tenure of 5 years cannot be transferred. The Counsel raised an additional plea about the transfer being a mid-session transfer which was likely to hamper the education of children.

After considering the above mentioned submissions, the Court noted, on the perusal of the procedure required to be adopted by the State Government, that the said procedure allows an employee to participate in the online transfer policy upon completion of a stay of 03 years in a specific zone and also mandates that in the event of completion of tenure of 5 years at a given zone, an employee shall have to mandatorily participate in the online transfer policy.

“The interpretation of the aforesaid clause cannot be given to mean that the State Government is prohibited from effecting a transfer of the employees at all prior to a period of five years stay in a zone. The proposed interpretation of the petitioners is not based on a meaningful reading or proper interpretation of the said transfer policy”,Justice Bhardwaj held while also observing that there was nothing to suggest that in the process of implementation of the transfer policy, the State Government is prohibited or debarred from effecting any transfers except for in the manner so prescribed under the policy itself.

Thus, it was held by the Court that in the absence of any prohibition contained, no such interpretation or meaning can be assigned to the transfer policy as would reflect an impediment on the power of the State and that any derived inference which is not supported by the plain reading and meaning of the policy, cannot be applied and it would rather amount to imposing prohibition not imbibed in the policy.

Additionally, the Bench asserted that while interpreting a policy, the High Court does not commit violence to the policy by providing in the policy something that is not contained therein.

“High Court cannot re-write the policy for the State or hold any clause to be badly embodied, more so, when the policy itself is not a subject matter of challenge”, Justice Bhardwaj opined.

Also, on the argument governing the possibility of disturbance likely to be caused to the education of the to-be transfer petitioners, in light of the non-furnishing of evidence to support this pleading, the Court was of the considered view that there can be no presumption of a factual pleading, which is more a sympathetic plea rather than imposing any limitation to the powers of the State to effect transfers.

Furthermore, the Court was of the opinion that the cadre of Taxation Inspector is a State Cadre and transfer and posting is an incidence and condition of service and that the prerogative of the State to deploy its resources cannot be steered by the Court.

Also, the bench added, “The same is the primary domain of the Executive unless exercise of such executive discretion is infested with malice, caprice, arbitrariness, inherent lack of jurisdiction or as a means of inflicting punishment or satisfy the judicial conscience about being gross abuse of the authority of law or complete disregard to the Rule of Law.”

Thus, finding no such caprice in the decision of the executive, the Court dismissed the present petition.