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DR. RACHNA DIXIT versus STATE OF U.P. THRU' ITS SECY. ANIMAL HUSBENDRY & MILK DEV.

High Court of Judicature at Allahabad

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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 [2003] RD-AH 204 (14 July 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 29644 OF 2003

Dr. Rachna Dixit ---------           Petitioner

Vs.

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.

14.7.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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