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Dr. Rachna Dixit v. State Of U.P. Thru' Its Secy. Animal Husbendry & Milk Dev. - WRIT - A No. 29644 of 2003  RD-AH 204 (14 July 2003)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 29644 OF 2003
Dr. Rachna Dixit --------- Petitioner
The State of U.P. & ors. ------------ Respondents
Hon'ble Dr. B.S.Chauhan, J.
Hon'ble D.P.Gupta, J.
(By Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed against impugned transfer order dated 29.6.2003, passed by the respondent no. 2, transferring the petitioner from Allahabad to Gangeshwari, Jyotiba Phule Nagar. The transfer order has been challenged on various grounds, including the allegations of mala fide, contending that the transfer order has been passed at the behest of certain land Mafias who had illegally occupied the land of the SPCA, and she made a complaint and she was authorised for pairvi in that matter by the high official and the civil court had passed certain orders in those cases. Because of this, the land Mafia became annoyed with the petitioner and they have got the petitioner transferred. Secondly, it has been submitted that transfer has been made at a very long distance without any reasons for exigencies, neither any residential arrangement nor other facility to the petitioner is available at the transferred place. Husband of the petitioner is a Government servant and is posted at Allahabad on the post of A.G.M. Civil Aviation Training College, Bamrauli, and the transfer policy requires that both the husband and wife should be posted together. Thus, transfer order is in violation of the transfer policy. The transfer order would adversely affect the education of her children who are studying in Class IX and V at Allahabad as Jyotiba Phule Nagar does not have the school affiliated to the same Board. Hence the impugned transfer order is liable to be quashed.
Heard learned counsel for the petitioner and the learned Standing Counsel for the respondents.
The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. (Vide Union of India Vs. S.L. Abbas, AIR 1993 SC 2444; Shilpi Bose Vs. State of Bihar, AIR 1991 SC 532; Union of India Vs. N.P. Thomas, AIR 1991 SC 1605; Chief Manager (Tel.) N.E. Telecom Circle Vs. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813; State of U.P. Vs. Dr. R.N. Prasad, 995 (Suppl) 2 SCC 151; Union of India & ors. Vs. Ganesh Dan Singh, 1995 (Suppl) 3 SCC 214; N.K. Singh Vs. Union of India & ors., (194) 6 SCC 98; and Abani Kante Ray Vs. State of Orissa, 1995 (Suppl) 4 SCC 169).
An employee holding a transferable post cannot claim any vested right to work on a particular place as the transfer order does not affect any of his legal rights and Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board Vs. Atma Ram Sungomal Poshani, AIR 1989 SC 1433, the Hon'ble Supreme Court has observed as under:-
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."
Similar view has been taken by the Apex Court in Chief General Manager (Telecom) N.E. Telecom Circle (supra).
In Union of India Vs. H.N. Kirtania, AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:-
"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide."
Learned counsel for the employee has vehemently argued that the transfer policy issued by the Department is binding on them and they are bound to transfer/ post the workman and her husband at the same place.
In Union of India Vs. S.L. Abbas (supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.
Similarly, the Supreme Court, in Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, has observed as under:-
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. Desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choices. Even though their preference may be taken into account while making the decision in accordance with administrative needs. In case of All India Service, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of other's posting. While choosing the career and a particular service, the couples have to bear in mind this factor and be prepared to face such a hardship, if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case, the couples have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion and any appointment in the All India Services with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incident of All India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places...... No doubt the guidelines require the two spouses to be posted at one place as far as practicable but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and claim of other employees." (Emphasis added).
In Shilpi Bose (supra), the Apex Court has held that order of transfer/posting "issued by the competent authority did not violate any of her legal right." The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place.
Thus there is no force in the submission made on behalf of the petitioner that this Court should interfere, as the impugned transfer order is violative of the transfer policy framed by the respondent authorities.
However in the instant case, petitioner has not impleaded the land Mafia against whom the allegation of mala fide has been made. Allegations of mala fide cannot be entertained in the manner which has been alleged by the petitioner.
Such a writ petition cannot be entertained on the ground of mala fide unless the party against whom allegations are made is impleaded as respondent by name. (Vide J.M. Banawalikar Vs. Municipal Corporation, Delhi & ors., AIR 1996 SC 326; State of Bihar & ors. Vs. P.P. Sharma, 1992 (Suppl) 1 SCC 222; I.K. Mishra Vs. Union of India & ors., (1997) 6 SCC 228; and All India State Bank Officers Federation & ors. Vs. Union of India & ors., JT 1996 (8) SC 550).
In Federation of Officers Association Vs. Union of India & ors, 2003 AIR SCW 1764, the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.
There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide State of U.P. Vs. Dr. V.N. Prasad, 1995 (Suppl) 2 SCC 151; Arvind Dattatrayaya Dhande Vs. State of Maharashtra & ors., (1997) 6 SCC 169; Utkal University Vs. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran Gupta & ors. Vs. State of U.P. & ors., (2000) 7 SCC 719; and Netai Beg & ors. Vs. State of West Bengal & ors., (2000) 8 SCC 262).
In State of Punjab Vs. V.K. Khanna & ors., (2001) 2 SCC 330, the Hon'ble Apex Court examined the issue of bias and mala fide, observing as under:-
"Whereas fairness is synonymous with reasonableness- bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice....... In almost all legal inquiries, 'intention as distinguished from motive is the all-important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse."
Similar view has been reiterated in Samant & Anr. Vs. Bombay Stock Exchange & Anr., (2001) 5 SCC 323.
In First Land Acquisition Collector & ors. Vs. Nirodhi Prakash Sangoli & anr., (2002) 4 SCC 160; and Jasvinder Singh & ors. Vs. State of Jammu & Kashmir, (2003) 2 SCC 132, the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.
Petitioner was supposed to plead and prove the allegations against the said land Mafia in a proper manner.
It is settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh Vs. State of Haryana, AIR 1988 SC 2181, the Hon'ble Supreme Court has observed as under:-
"In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."
Similar view has been reiterated in M/s. Larsen & Toubro Ltd. Vs. State of Gujarat & ors., AIR 1998 SC 1608; National Building Construction Corporation Vs. S. Raghunathan & ors., AIR 1998 SC 2779; Ram Narain Arora Vs. Asha Rani & ors., (1999) 1 SCC 141; Chitra Kumari Vs. Union of India & ors., AIR 2001 SC 1237; and State of U.P. & ors. Vs. Chandra Prakash Pandey, AIR 2001 SC 1298.
In Atul Castings Ltd. Vs. Bawa Gurvachan Singh, AIR 2001 SC 1684, the Hon'ble Apex Court observed as under:-
"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."
Similar view has been reiterated in Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & ors., (2003) 1 SCC 18.
In the instant case, the petitioner has not impleaded any person at whose behest the impugned transfer has been passed and as the necessary party is not before the Court, the allegations of mala fide cannot be taken into consideration. The transfer policy is not justiciable in Court of law. Therefore, petitioner's grievance that her husband is posted at Allahabad cannot be a ground for interference in a writ jurisdiction. Other grievances raised by the petitioner are of personal nature and cannot be dealt with in writ jurisdiction. (Vide State of Madhya Pradesh Vs. S.S. Kourav, AIR 1995 SC 1056).
Thus, petition is liable to be dismissed. However, as the petitioner has already filed a representation against the impugned transfer order on 7.7.2003 and the same is still pending consideration, the petition is disposed of finally with the request to the competent authority, i.e., respondent no.4, to consider and dispose of the representation of the petitioner in accordance with law within a period of two weeks from the date of filing a certified copy of this order, which petitioner undertakes to file within one week.
For a period of three weeks status quo as on today regarding posting of the petitioner shall be maintained.
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