Vijay Swaroop Saxena Vs State of M.P. and others

@JUDGMENTTAG-ORDER

Dipak Misra, J.

Invoking the jurisdiction of this Court in intra-Court appeal u/s 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellant has called in question the defensibility of the order dated 25-9-2006 passed by the learned Single Judge in W.P. No. 13528/2006(S).

The facts which are essential to be stated are that the appellant-petitioner had joined the services as a Range Officer on 7-11-1973. He was promoted to the post of Sub-Divisional Officer because of his performance in the year 1996 and he has been actively involved in checking illicit felling of trees. Illegal mining and poaching. While he was posted at Obedullaganj, District Raisen he was transferred by order dated 18-7-2004 and posted to East Forest Division, Chhindwara. After working for 11 months he was visited with the order of transfer on 17-8-2005. The respondent No. 3 the Sub-Divisional Officer, Tamiya (P), Production Forest Division, Chhindwara who had completed number of years at Chhindwara was transferred as ACF of Forest, Burhanpur but he neither joined at Burhanpur nor he was relieved from the post at Chhindwara. The appellant, as set forth, had no knowledge about the cancellation or the modification of the order passed in respect of the respondent No. 3. It was contended before the writ Court that the appellant was transferred to remote place at Jhabua from Chhindwara as he was instrumental in conducting a raid in the house of respondent No. 4 which was under construction and found substantial quantity of teak wood for which he had no explanation. When the registration of the offence was under process in the office of the appellant a threat was given to the appellant by certain persons. The appellant submitted a detailed report to the Divisional Forest Officer, East Chhindwara who in turn forwarded the same to the Conservator of Forest and issued notices to the respondent No. 3 for proceeding against him under the Indian Forest Act. It is also contended that the appellant-petitioner had issued a search warrant in the name of Santosh Sharma, the husband of respondent No. 5 who is a sitting Ward Member of Ward No. 17, Municipal Council, Chhindwara. Because of the aforesaid action of the appellant the respondents No. 4 and 5 got enraged and rushed to the Minister of Agriculture who had written a note sheet for immediate suspension of the appellant. Under these circumstances he was visited with the order of transfer because of the unwarranted political influence in the guise of administrative action. In essence, it was urged that because of the lawful action taken against the respondents No. 4 and 5 the appellant-petitioner has been transferred. Being aggrieved by the order of transfer the petitioner had approached this Court W.P.No. 9556/2006(S). The said writ petition was disposed on 31-8-2006 directing the respondents therein to examine the propriety of the order of transfer. The respondents despite the prima facie view expressed by this Court passed an order dated 14-9-2006 by transferring him to Bhopal. Being aggrieved by the aforesaid order the appellant preferred a writ petition being W.P.No. 13528/2006(S). The learned Single Judge without asking for filing of the return directed the respondents to consider the representation of the appellant within four weeks. The said order of the learned Single Judge is the subject-matter of assail in this writ appeal.

It is submitted by Mr. Mrigendra Singh, learned counsel for the appellant that the learned Single Judge has erroneously left it to the discretion of the respondents who are bent upon to harass the appellant inasmuch as the order of transfer has come into being because of the attitude of malice which is founded on the factum that the appellant had taken action against the respondent No. 5 who is the sitting Ward Member of Municipal Council, Chhindwara. It is also urged by him that the order of transfer is politically motivated as the note-sheet would so reveal. Learned counsel would contend that the respondent No. 3 has been successful in staying at Chhindwara because of his connections.

Mr. Jaideep Singh, learned Government Advocate appearing for the respondents No. 1 and 2 contended that the order passed by the learned Single Judge is absolutely presentable and does not warrant any interference inasmuch as the order of transfer is the incidence of service and it can only be challenged on violation of statutory mandatory rules of if it is reeked with malafide. Learned counsel for the State would further submit that though the allegation have been made against the Minister of Agriculture, he has not been arrayed as a party in the writ petition and hence, though the allegations may seemingly appear to be plausible, melt into total insignificance as no malice of fact can be proved unless the person against whom allegations are made has been given the opportunity of hearing. Learned counsel further submitted that the assertion of the learned counsel for the appellant that the respondents No. 1 and 2 had been able to influence the Minister and not being controverted by the respondents No.1 and 2 is totally inconsequential inasmuch as the same does not prove that the higher authorities had any influence on respondents No.1 and 2.

Mr. Udyan Tiwari, learned counsel for the respondent No. 3 has submitted that the respondent No. 3 had not joined at the transferred place and has been working at Chhindwara as the authorities have decided to retain him. It is urged by him that the transfer of the appellant is a transfer in consonance with law and the same does not warrant any interference.

To appreciate the submission raised at the Bar it is necessitous to refer to the order passed on 31-8-2006 in W.P.No. 9556/06(S). The essential part of the said order reads as under:

Petitioner has assailed the order of transfer from East Forest Division, Chhindwara to Forest School at Jhabua. Petitioner has alleged that he conducted raid in the house of two Municipal Councillors. Councillors are respondents No. 4 and 5 in this petition. It appears that after the raid was made on the basis of news-paper report itself without ascertaining the facts one of the Minister took cognizance and wrote a note-sheet that the petitioner should be suspended on the basis that no recovery was made of the wood from the houses of the councillors and search made was with prejudice suspension was recommended. However, suspension was not ordered, order of transfer has been passed. Petitioner has remained at Chhindwara for a period of 11 months only.

After hearing learned counsel for the parties, in my opinion, respondents have to consider this material impact of the aforesaid aspect on the transfer order which has been passed. If the aforesaid facts are correct obviously order of transfer would have effect or demoralization on the employees. They have to work independently and it is submitted that the wood was in fact seized from the house of councillors. Nobody is above the law. Merely by the fact that action has been taken, transfer could not have been ordered, that too after 11 months only.

In the aforesaid circumstances, respondents are directed to examine the propriety of the order of transfer which has been passed. Let considered decision be taken in the facts and circumstances of the case duly considering all the aforesaid observations and aspects. Let decision be taken within a period of six weeks. Till then petitioner shall continue at Chhindwara.

Petition is disposed of with the aforesaid direction.

After the aforesaid order was passed, the order of transfer was modified posting the appellant at Bhopal. As is evincible from the order passed by the learned Single Judge he has observed that though there has been change of place of transfer, the representation has not been disposed of.

Submission of Mr. Singh is that the transfer is actuated with malafide inasmuch as it has come into being because of the intervention of the political high ups. He has referred us to the note-sheet contained in Annexure A-10. The said note sheet has been written by the Minister of Food and Agriculture, as alleged. He had annexed the paper cuttings of ''Dainik Bhaskar'' dated 23-3-2006 wherein it is mentioned that the appellant being in malafide manner had conducted raid on the councillors of Chhindwara Municipality belonging to Bhartiya Janta Party. The note-sheet also indicated that news item clearly shows that despite raid conducted by the Forest Department nothing has been found from the houses of those councillors. The note-sheet also indicates that the said raid was carried on the basis of the information given by the informer. It was suggested in the said note as the raid was conducted without any basis the Sub-Divisional Officer. Vijay Swaroop Saxena should be suspended and an inquiry be held.

This Court to find out the chronology of events has directed the Government Advocate to produce the record and the same has been produced. On a perusal of the same it is noticeable that in the initial order of transfer it is mentioned that he has been transferred on administrative grounds. In the remark column it is further mentioned ''Karyastar Vanchhaniya Nahin''. There is no reference to any other note-sheet or communication. In this backdrop the question that falls for consideration is whether the order of transfer passed against the appellant is reeked with mala fide.

In this context we may profitably refer to the decision rendered in the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, wherein it has been held that the question of mala fide exercise of power assumes significance when a criminal prosecution is initiated on the extraneous consideration and for unauthorized purpose. We may hasten to note that though the said decision was rendered on a different factual backdrop but we have referred to the same to appreciate the concept of mala fide exercise of power.

In the case of Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, their Lordships expressed the opinion that fraud of power voids the order if it is not exercised bona fide for the end design. It has been held therein that there is distinction between exercise of power in good faith and misuse in bad faith. When some extraneous matters are taken into consideration it would be the case of fraud on powers, and misuse in bad faith arises when the power is exercised for a improper motive.

In the case of Prabodh Sagar vs. Punjab State Electricity Board and others, 2000 SCC (L & S) 731 it has been held as under:

Malice, in common acceptation, means and implies spite or ill-will. Malice is a question of fact. Mala fide is not meaningless jargon. It has proper connotation. The expression malice or mala fides in the facts of each case, can only be appreciated from records. There cannot possibly be any set of guidelines in regard to proof of mala fides. Mala fides depends upon its own facts and circumstances. There must be factual support for the allegations of mala fides. Mere user of word mala fide would not by itself make a petition entertainable. The Court must scan factual aspect and come to its own conclusion.

In State of Andhra Pradesh and Others Vs. Goverdhanlal Pitti, their Lordships made a distinction between "malice in fact" "legal malice" or "malice in law". The "malice in fact" is founded on ill will or spite or improper motive in taking action.

Presently we shall refer to certain citations that relate to the field of transfer. In Mrs. Shilpi Bose and others Vs. State of Bihar and others, it has been held as under:

4. In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities there will be complete chaos in the Administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.

In N.K. Singh Vs. Union of India and others, it has been held as under:

4. There are two aspects of transfer of a public servant holding a sensitive and important post. One aspect relates to the private rights of the public servant as an individual pertaining only to his service career. The other is concerned with prejudice to public interest irrespective of the individual interest. The element of prejudice to public interest can be involved only in transfers from sensitive and important public offices and not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough and there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. Such cases would be rare and this factor as a vitiating element must be accepted with great caution and circumspection.

In Union of India and Others Vs. S.L. Abbas, it has been held as under:

6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another." That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

In State of Uttar Pradesh v. Dr. D.N. Prasad their Lordships expressed the opinion as under:

2. ....We are of the opinion that at the stage which the matter was brought to engage the attention of the High Court. There was no prima facie material to establish any mala fides which required strong and convincing evidence. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material.

In National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, it has been held in para 5 as under:

5. On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies, of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4:1:1 of the Seniority Rules interdicts any transfer of the employees from one office or project or unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the Project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance.

In Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and Others, their Lordships came to hold that in the absence of arbitrariness, malafides or violation of any operative guidelines or rules, Court should not interfere in the matter of transfer.

In State of Rajasthan and Others Vs. Anand Prakash Solanki, while dealing with transfer of a President or a Member of a District Consumer Forum constituted u/s 10 of the Consumer Protection Act, 1986, their Lordships in para 13 expressed the view as under:

13. The scheme of the Act does not prohibit or exclude the exercise of power to transfer the President or members from one District Forum to another District Forum within the State. Power to transfer vests in the State Government as employer and is available to be exercised on the recommendation of the Committee contemplated by sub-section (1-A) of section 10 of the Act. The view to the contrary taken by the High Court cannot be countenanced.

In State of U.P. and Others Vs. Siya Ram and Another, in paras 5 and 6 it has been laid down as under:

5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. vs. Shri Bhagwan.

The above position was recently highlighted in Union of India vs. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.

In Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, it has been expressed as follows:

14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceedings. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated.

In State Bank of India Vs. Anjan Sanyal and Others, a two -- Judge Bench of the Apex Court clearly laid down the scope of judicial review in the matter of transfer. Their Lordships opined unless mala fide, or prohibited by services rules, or passed by an incompetent authority, the order should not be lightly interfered with, in exercise of a Court''s jurisdiction under Article 226 of the Constitution of India.

In State of U.P. and Others Vs. Gobardhan Lal, their Lordships while dealing with power of a Court in the matter of transfer expressed the opinion that transfer is prerogative of the authorities concerned and Court should not normally interfere therewith, except when the transfer order shown to be vitiated by mala fides or in violation of any statutory provision, or having been passed by an authority not competent to pass such an order.

The factual backdrop is to be tested on the anvil and touchstone of the aforesaid pronouncements of law. There has been no violation of statutory mandatory rule of law. The only assail to the order is on the ground that it is hit by malafides. We have perused the record and have referred to the same. The record does not contain any note-sheet of any order of the Minister. There has been mass transfer and not singular transfer. The order indicates that the appellant petitioner has been transferred on exigencies of administration. Quite apart from the above the Minister was not made a party to the writ petition. In any case, the malafide, as alleged, has not been proved and the order and the file pertaining to his transfer does not refer to the same. In the absence of the same, we are of the considered opinion that the order of transfer has to be treated as the transfer in exigency of administration not warranting any interference of this Court. However, as the appellant-petitioner is continuing at Chhindwara, we are only inclined to extend his continuance till end of June, 2007. Thereafter he shall join at his transferred place.

In the result, the writ appeal stands dismissed with the aforesaid direction and observation. However, there shall be no order as to costs.