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D.K. Mittal v. State Of U.P. And Others - WRIT - A No. 64855 of 2006  RD-AH 20528 (5 December 2006)
Court No. 38
Civil Misc. Writ Petition No. 64855 of 2006
State of U.P. and others
Hon'ble V.K. Shukla,J.
Petitioner, D.K. Mittal had been performing and discharging duties as Inspector, Civil Police with effect from 01.07.1997 and prior to his transfer had been posted as Station House Officer at Police Station Sadar District Agra. Petitioner has contended that at all point of time he has been performing and discharging his duties efficiently to the best of his capability without being influenced by any political pressure. Petitioner has contended that Nagar Nigam election, in Agra City was to take place on 31.10.2006. Dispute arose in between Samajwadi Party candidate, Bhawan Singh Lawania and B.S.P. Candidate Kailash Chand and supporter of both the candidates indulged in Mar-peet (ekjihV) and on account of the same District Magistrate, and Senior Superintended of Police had to interfere. It has been contended that at polling place Sauhalla Samajwadi party leader tried to effect the polling in favour of ruling party candidate and same was restrained by the petitioner and at said stage leader of ruling party misbehaved and threatened the petitioner. Petitioner has contended that he was informed by ruling party leader Rajendra Sharma that Sri Ram Ashare Viishvkarma Minister of State of U.P. is incharge of the election and petitioner would be thrown out side the district. Petitioner has contended that after entire election process has been over, entry of entire happing has been made in General Diary. Petitioner has given details of lodging of F.I.R. It has been contended that entire incident was reported in detail in print media. Petitioner has contended that thereafter he has been transferred. At this juncture present writ petition has been filed. Supplementary affidavit has also been filed to show that ruling party leaders were exerting pressure.
On the presentation of present writ petition, learned Standing Counsel was directed to obtain necessary instructions in the matter. Today matter has been taken up and requisite instructions has been received. Copy of the same has been produced before this Court and same has also been passed on to the counsel for the petitioner for perusing the same and thereafter matter has been taken up for final hearing and disposal with the consent of the parties.
Sri S.P. Giri counsel for the petitioner contended with vehemence that in the present case transfer order is unreasoned order and circumstances which have been narrated in the body of the writ petition makes it clear that power of transfer has been colorably exercised without there being any real and genuine reason for the same, as such transfer order in the present case is liable to be quashed.
Sri Shashank Shekher, learned counsel representing State on the other hand contended on the basis of instruction so received by him that petitioner has been transferred to Cooperative Cell U.P. Lucknow as per requirement of the department, in public interest alongwith other Inspectors without there being any political pressure as such no interference is warranted by this Court and writ petition deserves to be dismissed.
After respective arguments have been advanced factual position which is emerging is to the effect that petitioner has been performing and discharging duties as Station House Officer at Police Station Sadar District Agra. Petitioner has been transferred immediately after the elections were over from District Agra to Cooperative Cell U.P. Lucknow 10.11.2006. Reasons which have been indicated by the Inspector General(Establishment) U.P. at Lucknow for transferring the petitioner is that looking into competence of the petitioner and requirement in the Cooperative Cell U.P. Lucknow, petitioner has been transferred and as during elections Model Code of Conduct, was applicable, as such in between election, transfers were not effected, and after elections were over, Model Code of Conduct was lifted, transfer has been made. Once decision has been taken by the authority concerned keeping in view the competence of the petitioner and the complicated cases to be dealt with by the Cooperative Cell U.P. Lucknow then by no stretch of imagination inference can be drawn that power of transfer has been colorably/malafidly exercised in the present case. It is not that petitioner has been transferred alone in the Cooperative Cell U.P. Lucknow rather various other persons from various other district have been transferred to various other establishment and one Viaji Kumar has also been transferred to Cooperative Cell U.P. Lucknow from Meerut. In this background if in administrative exigency petitioner has been transferred, no fault can be found in the transfer order.
Apart from this in the present case it is true that elections have taken place and immediately after the election transfer has been implemented and given effect to. This may give apprehension in the mind of the petitioner but mere apprehension does not establish malafides, inasmuch as for establishing of malafides there has to be concrete material indicating malafides and pointing out the malafides. The allegations of malafides, made has to inspire confidence in Court and should be based on concrete materials and not ipse dixe. Entire plea of malafides has been alleged against Samajwadi Party Leaders, but no malafides have been alleged against the authority concerned who has proceeded to exercise and invoke authority of transfer.
Consequently plea of malafide has not been substantiated qua the authority, who exercised authority of transfer. At this juncture the view of Hon'ble Apex Court in the case of Unior of India Vs. Ashok Kumar and others reported in [(2005) 8 SCC 760] qua malafides is being looked into as follows:
21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its power. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficult is not lessended when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting malafides in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S Pratap Singh Vs. State of Punjab) reported in [(1964) 4 SCR 733 or AIR 1964 SC 72] It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa Vs. State of T.N reported in [(1974) 4 SCC 3 or AIR 1974 SC 555] courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are gave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. Vs. Ajay Kumar reported in [(2003) 4 SCC 579.
22. As observed by this Court in Gulam Mustafa Vs. State of Maharashtra reported in [(1976) 1 SCC 800] mala fides is the last refuge of a losing litigant."
Here also plea of malafide has been set up against leaders of Samajwadi Party and not at all against the authority as such plea of malafide does not stand substantiated and has been mentioned only for the purposes of case.
The view point of Hon'ble Apex Court qua transfer is also being looked into to know the parameters of interference in transfer matter. In the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others reported in 1995 (71) FLR 1011 (SC) the Hon'ble Apex Court held as under:
"A Government servant holding a transferable post has no vested right to remain posted at one place or the other he is liable to be transferred from one place to the other. Transfer order issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
In the case of State of U.P. Vs. Gobardhan Lal reported in 2004 (101) FLR 586 (SC) Hon'ble Apex Court has held as under:
"7. it is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of services. Unless the order if transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order or transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer polices at the best may afford an opportunity to the office or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable rights, unless as noticed supra shown to be vitiated by malafide or is made in violation of any statutory provisions.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirement of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
9. The very questions involved, as found noticed by the High Court in these case being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspapers reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basis concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring and effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when property approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties."
Hon'ble Apex Court in case of Union of India and others Vs. Janardhan Debanath and another reported in [(2004) 4 Supreme Court Cases 245 has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is malafide. Relevant extract is being quoted below:
"The High Court while exercising jurisdiction under Article 226 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service. Necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan reported in [(2001) 8 SCC 574].
The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal Vs. Union of India reported in 2005(107) FLR 37 in following terms.
" It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."
Consequently in the fact of the present case and keeping in view that record which has been produced does not show that any political pressure whatsoever has been exerted rather to the contrary it is reflected that petitioner has been posted at Agra for last more than seven years and now alongwith other has been transferred to Cooperative Cell U.P. Lucknow wherein complicated cases are dealt with and the caution given by Hon'ble Apex Court no interference is warranted by this Court with the impugned order of transfer.
In term of observations made above, present writ petition is dismissed.
Dated: 5th December, 2006
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