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DR. (SMT.) NALINI CHANDRA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Dr. (Smt.) Nalini Chandra v. State Of U.P. And Others - WRIT - A No. 25080 of 2003 [2003] RD-AH 228 (25 July 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 25080 OF 2003

Dr. (Smt.) Nalini Chandra ------ Petitioner

 Vs.

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 challenging the impugned transfer order dated 31.5.2003, by which the petitioner has been posted as Principal of the Government Post Graduate College, Musaphirkhana, Sultanpur and respondent no. 3 has been transferred in her place from Government Post Graduate College, Khair, Aligarh.

Facts and circumstances giving rise to this case are that petitioner had started her career as a lecturer in a Post Graduate College, Nainital. She was promoted in 1991 to the post of Principal, Post Graduate College and by order dated 31.3.2001 she was promoted and posted as Joint Director Higher Education, State of U.P., Allahabad. Petitioner had been transferred vide impugned order dated 31.5.2003 from Allahabad to Government P.G. College, Musaphirkhana, Sultanpur and respondent no. 3 has been posted in her place as Joint Director, Higher Education, Allahabad. Hence this petition.

Mr. Ravi Kant, learned Senior Counsel appearing for the petitioner has submitted that the transfer order has been passed only to accommodate the respondent no. 3 and has not been passed either in administrative exigency or adopting a fair procedure. The petitioner has earlier conducted a sort of preliminary enquiry, wherein, she had found large number of irregularities committed by several persons, including the respondent no. 3, and she had submitted her report to the Director of Higher Education, which was sent to the Government of Uttar Pradesh. Therefore, the order of transfer has been passed only to victimise the petitioner. The transfer order is against public interest. Had petitioner been allowed to continue on the said post at Allahabad, she could have assisted the enquiry officer if any enquiry was held against those erring officers, including the respondent no. 3. The transfer order was passed on 31.5.2003, though respondent no. 3 stood relieved on 30th May, 2003 in anticipation of the transfer order. Thus it is evident that the transfer order has been passed only to accommodate the respondent no. 3 and not in administrative exigency. The order has been passed on mala fides, against the transfer policy adopted by the State, and thus, the same is liable to be quashed.

On the contrary, it has been submitted by Shri H.R. Mishra, learned Standing Counsel that the petitioner had conducted the so called preliminary enquiry much earlier. Petitioner as well as respondent no. 3 were got promoted simultaneously on the same day and petitioner was posted as the Joint Director, Higher Education, Allahabad and the respondent no. 3 as Regional Higher Education Officer. The enquiry conducted by the petitioner was in respect of the incident much prior to their promotion. Had there been anything against the respondent no. 3, he could not have been promoted. Thus, his promotion itself is an evidence that there was nothing serious against him, on the basis of which, a regular enquiry could have been conducted, and in such an eventuality all averments made by the petitioner automatically fall as they do not have legs to stand.

Shri Umesh Narain Sharma, learned Senior Advocate appearing for the respondent no. 3 has adopted the submissions made by Shri H.R. Mishra and in addition thereto, submitted that the writ Court can interfere with the impugned transfer order only and only if it comes to the conclusion that the transfer order has been passed in violation of the statutory provisions or on mala fides and no third ground is available for interference against the transfer order. It is for the administration to consider as at what time and at which place the service of an employee is required, and if the transfer order has been passed in administrative exigency, the Court cannot sit as an appellate authority and examine the same microscopically. Even if the transfer is made on administrative ground, it is not necessary for the employer to disclose the grounds. At the most, transfer may be against the government policy adopted by the State, but, as the said policy does not create any legal right in favour of an employee, it is not justiciable in Court. The respondent no. 3 was relieved on 1st June, 2003 in pursuance of the impugned transfer order dated 31.5.2003, and undoubtedly, in relieving chart there has been a cutting of a date, that by mistake the date of relieving had been mentioned as 30.5.2003. Had there been such manipulation, they could have changed the proforma itself and could not have left the evidence for the petitioner to make out a case. As it was a genuine mistake which was rectified, it does not give rise to any cause of action to the petitioner. Not much reliance can be placed on the cuttings of the relieving chart of the respondent no. 3 as it was merely a human error which stood rectified by putting the correct date. Thus, the petition is liable to be dismissed.

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."

In Union of India Vs. S.L. Abbas (supra); and Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, 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.

Thus, it is clear that the transfer policy does not create any legal right in favour of the respondent- employee. It is settled law that writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or  legal  right or when there is a complaint  by the employee that there is a breach of the statutory duty on the part of the employer. Therefore, there must be judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (Vide State of Kerala Vs. K.G. Madhavan Pillai, AIR 1989 SC 49; State of Kerala Vs. Smt. A. Laxmi Kutty, AIR 1987 SC 331; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 SC 276; Calcutta Gas Company (Propriety Ltd.) Vs. State of West Bengal & ors., AIR 1962 SC 1044); Rajendra Singh Vs. State of M.P., AIR 1996 SC 2736; Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & ors., (1998) 7 SCC 469; Krishan Lal Vs. State of J 7 K, (1994) 4 SCC 422; State Bank of Patiala & ors Vs. S.K.Sharma, (1996) 3 SCC 364; Utkal University Vs. Dr. Nrusingha Charan Sarangi & ors., (1999)2 SCC 193; State of Punjab Vs. Raghubir Chand Sharma & anr., (2002)1 SCC 113; and Sadhana Lodh Vs. National Insurance Co. Ltd. & anr., (2003) 3 SCC 425.

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 has caused her legal injury.

It has next been submitted that the transfer order had been passed under pressure at the behest of respondent no. 3, and therefore, the same is liable to be quashed.

In Dr. Balkrishna Pandey Vs. State, 1997 ACJ 1038 a Division Bench of this Court has held that if an employee is at a station for a long time and the transfer is made administratively only on that ground, it cannot be a case of mala fide.

Similarly, in E.P.  Royappa Vs.  State of Tamil Nadu,  AIR 1974 SC 555, the Hon'ble Supreme Court observed as under:-

"Secondly,  we  must not  also  over-look  that the burden of establishing mala fides is  very heavy on the person who  alleges it.....   The Court would, therefore,  be slow  to  draw  dubious  inferences  from incomplete  facts  placed before it by  a party,  particularly when the imputations are  grave and they are made against  the holder  of  an  office which has  a  high responsibility  in   the  administration. Such  is  the   judicial  perspective  in evaluating  charges  of unworthy  conduct against  ministers and other, not because of  any  special status....  but  because otherwise,  functioning effectively would become difficult in a democracy."

The   Hon'ble  Supreme   Court,  in  M/s. Sukhwinder  Pal Bipal Kumar Vs.  State of Punjab, AIR 1982 SC 65;  and Shivajirao Nilangerkar Patil Vs.  Dr.   Mahesh Madhav Gosain, AIR 1987 SC 294; has made similar observations.

In  M.   Shankarnarayana  Vs.   State  of Karnataka,  AIR 1993 SC 763, the Hon'ble  Supreme Court observed  that  the  Court   may  "draw  a reasonable  inference of mala fide from the  facts pleaded and established.  But such inference must be based on  factual  matrix  and  such  factual matrix cannot remain in the realm of institution, surmise or conjecture."

In  N.K.   Singh  Vs.   Union  of  India, (1994) 6  SCC  98, the Hon'ble Supreme Court  has held that  "the inference of malafides should  be drawn by  reading in between the lines and taking into account the attendant circumstances."        

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 bonafides 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.

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.

A Division Bench of this Court in Narendra Kumar Rai Vs. State of U.P., (2002) 1 UPLBEC 369 has held that in case transfer order is passed on administrative ground, it is not necessary for the employer to furnish the grounds even before the Court.

If the case of the petitioner is examined in the light of the aforesaid settled legal propositions, undoubtedly, petitioner and respondent no. 3 had been promoted simultaneously on the same date. Petitioner has conducted some preliminary enquiry in respect of certain matters much earlier from their promotion and no action has been taken on her report. Promotion of the respondent no. 3 subsequently may be an evidence that no material irregularity had ever been committed by him. We cannot presume that the transfer order has been passed only to give benefit to the respondent no. 3. More so, the allegations of mala fide has been alleged again and again without showing as to who is the person who had been a master-mind or was capable to victimise the petitioner and help the respondent no. 3. Petitioner miserably failed to disclose any material which may substantiate her allegations of mala fide. No person has been impleaded by name.

The allegations of mala fides made in paragraphs 9, 10 and 11 of the writ petition are as under:-

"9. That after the joining of the petitioner as Joint Director, Higher Education, State of U.P., Allahabad, number of anomalies came into light for example, illegal withholding of sum to the tune of Rs. About 20 lacs by the Department, received as a grant from the State Government without being disbursed, regularization of appointments without sanction of the post, grant of permission for irregular appointment on un-created post, apart from various serious financial irregularities which of course annoyed the superior authorities and created uneasy situation for them. Some of the correspondence and orders in this regard are being annexed herewith and marked as Annexure No. 6 to this writ petition (collectively).

10. That petitioner in particular made complaints against  the respondent no.3, namely, Miyan Zan while functioning as Regional Higher Education Officer, at Gorakhpur involving financial administrative irregularities pertaining to appointments. The report of the petitioner brought various authorities under the Zone of enquiry and consequently, a conspiracy was hatched to send the petitioner from the post of Joint Director, Higher Education, State of U.P., Allahabad. Some of the correspondence showing the irregularities of mere grant and other are also being enclosed herewith and marked as Annexure No. 7 collectively to this writ petition.

11. That all these were on account of irregularities pointed out by the petitioner either on the basis of the inquiry held by her or on the basis of complaint by public and aggrieved persons."

No material particulars have been furnished and mere bald allegations have been made in the petition. More so, it all related to the period prior to their promotion. Admittedly, no action was ever taken on the basis of the report submitted by the petitioner.

Thus it is difficult to hold that impugned transfer order of the petitioner had been passed on mala fide grounds. Undoubtedly, transfer order has to be passed fairly without victimizing any employee and an honest officer is to be given encouragement. The judgments cited at bar on behalf of the petitioner, particularly, Arvind Datatraya Dhande Vs. State of Maharashtra & ors., (1997) 6 169 and Punjab National Bank & ors Vs. All India New Bank of India Employees' Federation & ors., (1997) 10 SCC 627 are not attracted to the facts of this case as the facts thereof are quite distinguishable from the present case.

In former there has been certain complaints by the country liquor vendors against the officer and the Hon'ble apex Court was satisfied that the transfer order had been passed  at their behest and persuasion of those liquor vendors. While in the later that was a case of Bank and placement had to be made considering the administrative exigency, rather the Hon'ble Apex Court did not accept the submissions that the transfer orders had been made under the garb of re-deployment of surplus staff to accommodate a particular class of employees as the Apex Court has observed as under:-

"It is quite likely that they were routine rotational transfers. It is also possible that they were required to be made for some compelling reasons or administrative exigencies. It is, therefore, not possible to accept the contention that in the garb of re-deployment of surplus staff, PNB had done so to accommodate its own employees."

In fact, that was a case of Amalgamation and Placement Scheme which had been statutory in nature and had to be implemented considering the administrative requirement for their re-deployment.

In view of the above, we reach the inescapable conclusion that petitioner has not suffered any legal injury. There is nothing on record to show that transfer of the petitioner has not been made in administrative exigency or in routine manner. Allegations of mala fides fall short to take judicial notice thereof or to draw inference by reading in between the lines.

Thus, petition is devoid of any merit and is accordingly dismissed. Interim order passed by this Court earlier stands vacated. However, in the Facts and circumstances of the case, there shall be no order as to costs.

25.7.2003

AKSI


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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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