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Vijay Pal Singh v. State Of U.P. & Others - SPECIAL APPEAL No. 1140 of 2004  RD-AH 784 (14 September 2004)
Special Appeal No. 1140 of 2004
Vijay Pal Singh Vs. The State of U.P. and others
Civil Misc. Writ Petition No. 33338 of 2004
Ravi Shankar Shukla Vs. The State of U.P. Forest Department and others
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This Special Appeal has been filed against the judgment and order dated 18.8.2004 passed by a learned Judge of this Court in Writ Petition No. 33338 of 2004. In our earlier order dated 3.9.2004 we had clearly observed that the appellant and the respondent No. 4, who were working as Forest Range Officers, were Gazetted Officers and were not holding class III post. The writ petition, therefore, could not have been entertained by a learned Single Judge as it was a matter cognizable by a Division Bench of this Court. We, therefore, find substance in the arguments advanced by the learned counsel for the appellant that the order should be set aside on the sole ground that the writ petition was not cognizable by the learned Single Judge.
Learned counsel for the respondent/petitioner, however, submitted that in such a situation when this Court has the jurisdiction to entertain writ petitions in service matters cognizable by a Division Bench, we should pass appropriate orders in the writ petition. Learned counsel for the appellant/respondent has no objection if the writ petition is finally heard. We have, therefore, called for the records of the writ petition and propose to decide the same with the consent of the parties.
The orders impugned are the transfer order dated 9.4.2004 and 31.7.2004 passed by the Chief Forest Conservator, U.P. Learned counsel for the petitioner Ravi Shankar Shukla submitted that the transfer order had been passed under political interference and as such it should be quashed. He further submitted that nor was there any administrative exigencies for transferring the petitioner. On the other hand, learned counsel for the respondents has submitted that the allegations of mala fide cannot be taken into consideration as no person under whose political influence the transfer order was passed, has been impleaded as a party. More so, a Government servant working on a transferable post can be transferred unless the transfer order is passed in violation of the statutory provisions or on the basis of mala fides. He, therefore, submits that the writ petition is liable to be dismissed.
We have considered the submissions made by the learned counsel for the parties and have 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; Mrs. Shilpi Bose and others Vs. State of Bihar and others, 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), 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 an 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 a condition precedent for invoking 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 & 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 as it is violative of the transfer policy framed by the respondent authorities.
In Gujrat Electricity Board Vs. Atma Ram Sungomal Poshani (supra), the Apex Court in crystal clear words observed that if an employee does not join at the transferred place, he exposes himself to the disciplinary proceedings for disobedience of the order. The employee cannot avoid the compliance of transfer order. In Addisons Paints & Chemicals Ltd. Vs. Workman, AIR 2001 SC 436, a similar view has been reiterated as it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance.
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 children are getting education and their studies would also be adversely affected. It has also been submitted that if the grievances raised by the petitioner as mentioned above, are 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 Madhya Pradesh and another Vs. S.S. Kourav and others, 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.
In Director of School Education Madras & Ors. Vs. O. Karuppa Thevan & Anr, 1994 Supp (2) SCC 666, the issue of transfer in mid academic session was considered by the Hon'ble Supreme Court and it was held that "the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent." Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency. Thus, the Court is not inclined to consider this submission at all.
We also find no force in the submission that the transfer order had been passed at the behest of some political pressure as no such person has been impleaded as a respondent.
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. However, the transfer order passed on the instruction/or behest of the minister or any public representative would not be automatically bad. The employee has to establish the malice for passing such an order.
Thus, in view of the above, undoubtedly, it remains a 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, 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.
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 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 mala fides 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 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.
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.
In view of the above, as the transfer order is neither in violation of some statutory provision and nor it can be held to have been passed in a mala fide exercise of power, we are not inclined to interfere with the same in the writ petition and the writ petition filed by Sri Ravi Shankar Shukla is hereby dismissed. In case the petitioner is aggrieved by the impugned transfer order, he may make an appropriate representation before the competent authority and if such a representation is filed, it shall be decided by the said authority expeditiously in accordance with law. The Special Appeal is, however, allowed and the judgment and order dated 18.8.2004 is set aside as we have already held that the writ petition was not cognizable by a learned Single Judge.
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