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BANSHI BADAN BANERJEE versus STATE OF U.P. THRU' ITS PRINCIPAL SECY. LKW. & ANR.

High Court of Judicature at Allahabad

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Banshi Badan Banerjee v. State Of U.P. Thru' Its Principal Secy. Lkw. & Anr. - WRIT - A No. 3514 of 2004 [2004] RD-AH 58 (5 February 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

'RESERVED'

CIVIL MISC. WRIT PETITION NO. 3514 OF 2004

Banshi Badan Banerjee -------------   Petitioner

   Versus.

The State of Uttar Pradesh

and others ------------- Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Ghanshyam Dass, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for quashing the impugned transfer order dated 27.1.2004, by which the petitioner has been transferred from Allahabad to Meerut and one Shri G.N.Shukla has been transferred in his place as Upper Nagar Ayukta.

Shri Ravi Kant, learned Senior Counsel assisted by Shri Yasharth, appearing for the petitioner, has submitted that the impugned transfer order has been passed for political reasons under the pressure of Dr. K.P. Srivastava, Mayor of Allahabad, as he wrote a letter dated 9th January, 2003 that petitioner should be transferred for the reason that he belongs to the Bhartiya Janta Party and was harassing him. The impugned transfer order has not been passed in administrative exigency, and having been passed mala fidely, is liable to be quashed. Petitioner is a Nodal Officer for State Vigilance Cases and Public Interest Litigation Cases pending before this Court, so his transfer would not be in public interest. Persons senior to the petitioner in the same cadre are not being transferred from Allahabad. Thus, it is discriminatory order. The order impugned is violative of the transfer policy framed by the Respondent-State. More so, the transfer would adversely affect the education of his children studying in Allahabad, as his daughter Km. Kakoli Banerji is doing M. Tech. in Software Engineering from Allahabad and Km. Vaishali Banerjee is studying in class X in Allahabad. His wife is ailing and there is no male member to look after his family if petitioner is sent on transfer. Transfer should not be made from Allahabad in mid academic session and liable to be quashed.

On the other hand, Shri S.P. Kesarwani, learned Standing Counsel and Shri S.D. Kautilya, appearing for respondents have submitted that writ petition itself is not maintainable as Shri G.N.Shukla who has been transferred in place of the petitioner has not been impleaded as a party. The allegation of mala fide cannot be taken into consideration for the reason that no political person has been impleaded as respondent. Neither Shri Azam Khan, Nagar Vikas Minister nor Dr. K.P. Srivastava, Mayor of Allahabad has been impleaded as  party in the petition. The question of discrimination in passing the transfer order does not arise as Article 14 of the Constitution is not applicable in such cases. Petitioner failed to point out any statutory provision which has been contravened in passing the impugned order. Thus, petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

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.

Similar view has been reiterated by the Supreme Court, in Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, observing that the terms incorporated in the transfer policy require to be considered by the authorities "along with exigencies of administration" and " without any detriment to the administrative need and claim of other employees".

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 is violative of the transfer policy framed by the respondent authorities.

The next submission made on behalf of the employee is that the transfer order would cause great hardship as he would be forced to have a second establishment at a far distant place. Appellant's ailing wife is getting medical treatment at Allahabad and education of his daughters would also be adversely affected. It has also been submitted that the grievances raised by the petitioner as mentioned above, if not resolved, he would suffer an irreparable loss and would not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. Vs. S.S. Kaurav, AIR  1995  SC 1056, wherein it  has  been held that  it is not permissible for the Court to go into the  relative  hardship.  It is for the administration to consider the facts of a given case and mitigate the real   hardship in the interest of good and efficient administration. Thus, the Court is not inclined to consider this submission at all.

It has next been submitted that the transfer order had been made under political pressure at the behest of the Mayor of Allahabad and, therefore, the impugned transfer order 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.

In Lokesh Kumar Vs. State, 1998 (1) AW.C. 27 this Court has held that transfer in colourable exercise of power without administrative exigency only on political consideration is liable to be set aside. The transfer of an employee must be made considering the administrative exigency and not at the whim of any politician, including the Ministers, for the reason in such a case transfer order may be passed for extraneous consideration as held by this Court in Director Vs. Nathi Lal, 1995 (2) UPLBEC 1121.

In Pratap Narain Srivastava Vs. State of U.P. & ors., 1995 (1) Edu. & Service Cases 509; Pradeep Kumar Agrawal Vs. Director, (1994) 1 UPLBEC 189; Sheo Kumar Sharma & ors. Vs. District Shiksha Adhikari, Kanpur Dehat & ors., (1991) 1 UPLBEC 690; Smt Gayatri Devi Vs. State of U.P., 1997 (2) UPLBEC 925, Pradip Kumar Vs. Director Local Bodies, 1994 (1) UPLBEC 156; Pawan Kumar Srivastava Vs. U.P.State Electricity Board, 1995 (1) UPLBEC 414; Shiv Kumar Sharma Vs. Basic Shiksha Adhikari, 1991 (1) UPLBEC 69; and Goverdhan Lal Vs. State of U.P. & ors., 2000 (2) UPLBEC 1356 it has categorically been held that a transfer order passed under political influence cannot be sustained in the eyes of law.

In Arvind D. Dhande Vs. State of Maharashtra & ors, JT 1997 (6) 229 the Hon'ble Apex Court deprecated and disapproved the transfer of Government servants under the political pressure.

Thus, in view of the above, undoubtedly, it remains settled legal proposition that Government servants should not be transferred on the will of the politician and transfer orders have to be made as per the administrative requirements.

However, in the instant case, petitioner has not impleaded the politician, i.e. Mayor of Allahabad or the concerned Minister against whom the allegation of mala fide has been made. Allegations of mala fide cannot be entertained in the manner these have been alleged by the petitioner.

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.

The issue of "malus  animus" was considered in  Tara Chand Khatri Vs.  Municipal Corporation of Delhi, AIR 1977  SC  567,  wherein the  Hon'ble  Supreme Court has  held  that  the High  Court  would  be justified  in refusing to carry on  investigation into the  allegation  of mala fides, if  necessary particulars  of  the  charge making out  a  prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person  who  alleges it and there must  be sufficient material to establish malus animus.    

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   mayh  "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.

Thus, in view of the above, as the person under whose influence the impugned transfer order has been passed and the person who has passed the transfer order, have not been impleaded as party-respondents, we are not in a position to entertain the allegations of mala fides.

Admittedly, a case is bound to fail for non-joinder of necessary party. In the instant case, petitioner has been replaced by Shri G.N. Shukla who stood transferred from Meerut to Allahabad. For the reasons best known to the petitioner, Shri G.N. Shukla has not been impleaded as party-respondent. Passing any order behind his back would be violative of principles of natural justice and in view of the judgment of the Hon'ble Apex Court in Udit Narain Singh Malpaharia Vs. Member, Board of Revenue, Bihar, AIR 1963 SC 786, he would have a right to ignore the order passed by this Court. In such a case, we are of the considered opinion that Shri Shukla is a necessary party and as he has not been impleaded, no relief can be granted to the petitioner behind the back of Shri Shukla. (Vide Mahadeo Pandse Vs. Rajan Textile Mills (P) Ltd., AIR 1975 SC 2709;  Prabodh Verma & Ors. Vs. State of U.P. & Ors., AIR 1985 SC 167; Ishar Singh Vs. Kuldeep Singh, 1995 (Supp) 1, SCC 179; Bhagwati & Ors. Vs. Subordinate Service Selection Board, Haryana & Ors., 1995 (Supp) 2 SCC 663; Central Bank of India Vs. S. Satyam & Ors., (1996) 6 SCC 419; J. Jose Dhanapaul Vs. S. Thomas & Ors., (1996) 3 SCC 587; Arun Tiwari & Ors. Vs. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Azar Hasan & Ors. Vs. District Judge, Saharanpur, (1998) 3 SCC 246; Ram Swarup & Ors. Vs. S.N. Maira & Ors., (1999) 1 SCC 738; L. Chandra Kishore Singh Vs. State of Manipur & Ors., (1999) 8 SCC 287; and  B. Ramanjini & Ors. Vs. State of Andhra Pradesh & Ors., (2002) 5 SCC 533).

The petitioner has served in Nagar Nigam, Allahabad for about three years. He is holding the transferable post. In spite of the objections taken by the counsel for the respondents,  learned counsel for the petitioner did not seek time to bring the necessary parties on record. Neither Shri G.N. Shukla who stood transferred qua the petitioner nor Dr. K.P. Srivastava at whose behest transfer order is alleged to have been passed nor Shri Azam Kahan, the Hon'ble Minister who is alleged to have passed the order under the political influence, have been impleaded. In such a fact situation, it is not possible for us to entertain the allegations of mala fides. Petition fails only for non-joinder of necessary parties, i.e. Shri G.N. Shukla. No Rule is pointed out in contravention of which it can be held that the transfer order suffers from illegality. For personal inconvenience, i.e. ailment of his wife and education of his daughters, writ is not the appropriate remedy. Petitioner ought to have made a representation before the employer, no such course was adopted by him.

Petition lacks merit and accordingly dismissed.

5.2.2004

AKSI/AHA


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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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