Ab. Qayoom Wani vs State of J&K

Mr. Bansi Lal Bhat J. - These two Letters Patent Appeals arise out of a common judgment dated 04th March, 2016, passed by the learned

Single Judge in SWP Nos. 167/2016 and 199/2016, by virtue whereof the writ petitions filed by the writ petitioner challenging his repatriation by

the Government from Sarva Shiksha Abhiyan and his subsequent transfer from the Directorate of School Education, Kashmir, and posting as

Incharge Headmaster at High School Ogmuna, Tangmarg, came to be dismissed.

Relevant facts have been detailed in the judgment impugned in this appeal. However, in order to pinpoint the grievance raised by the appellant,

some relevant facts need reiteration; The appellant, an Incharge Headmaster, is stated to be Union President of Employees Joint Action

Committee; President of School Education Employees' Coordination Committee; and Chairman, Jammu and Kashmir Teachers' Forum. He was

posted along with post as Consultant Sarva Shiksha Abhiyan (for short, SSA). The case projected by the appellant is that he in capacity as a union

leader, approached respondent No. 1 (Commissioner/Secretary to Government, Education Department) with a representation against the transfer

of two of the Union office-bearers; namely, Muhammad Amin Khan (District President, Teachers' Forum, District Kupwara) and Mohammad

Afzal Bhat (Provincial President, J&K Teachers' Forum). According to the appellant, this annoyed respondent No. 2 (the Director, School

Education, Kashmir) and he issued a press statement which was published in Daily Kashmir Monitor, in its issue dated 30.01.2016, wherein he

stated that (sic) he would not tolerate unionism in Education Department. It is stated by the appellant that he after being contacted by certain media

persons, told them that he being a Government employee was ready to be posted anywhere. However, his fight was against the pick-and-choose

policy, as only selected persons, more particularly the office bearers of the union, were targeted and transferred. It is alleged that no sooner the

aforesaid statements were published in the newspapers, respondent Nos. 1 and 2 allegedly conspired at the behest of respondent no. 2 under the

garb of ""(to) reviewing attachment and deployment of staff in the School Education Department and in the interests of administration"", issued

Government order bearing No. 26-Edu of 2016, dated 02.02.2016 whereby the appellant along with one Incharge Principal, one Headmaster,

one Incharge Headmaster and four teachers were withdrawn from their respective places of posting and directed to report to respondent No. 2.

Respondent No. 2 in turn was directed to issue their orders of posting within a period of 03 days.

The appellant challenged the aforesaid order dated 02.02.2016 by filing writ petition, SWP No. 167/2016. It is stated that by order dated

04.02.2016, the Court stayed the impugned order to the extent it related to the appellant.

It is alleged that notwithstanding the aforesaid Court order dated 04.02.2016, respondent No. 2 manipulated issuance of order No. 123-DSEK

of 2016, dated 03.02.2016, where under the appellant was posted as Incharge Headmaster at High School Ogmuna, Baramulla. According to

appellant even though he had been on one month's leave with effect from 18.01.2016, yet in the aforesaid order dated 03.02.2016, it was stated

that the transferee shall be deemed to have been relieved.

The appellant filed yet another writ petition, SWP no. 199/2016 wherein he challenged the aforesaid Order No. 123-DSEK of 2016, dated

03.02.2016.

The two writ petitions, SWP No. 167/2016 and SWP No. 199/2016 thus filed by the writ petitioner, were finally heard by the learned Writ

Court and dismissed in terms of the impugned judgment. This appeal has been filed against that judgment and order.

We have heard learned counsels for the parties and considered the matter. The learned counsels have also filed written submissions along with

photocopies of the judgments they have relied upon.

Primarily there were only two grounds taken before the learned Writ Court. First and the foremost that the impugned orders were actuated by

mala fides allegedly attributed to respondent No. 2; and second, that the writ petitioner's repatriation and transfer were against the transfer policy

promulgated by the School Education Department.

The same two grounds have been agitated in the present appeals before this Court. The learned counsel for the appellant vehemently argued that

the findings returned by the learned Writ Court are perverse and erroneous.

There is no denying the fact that the ground of mala fide was built on the contents of news item that had appeared in the 'The Kashmir Monitor'

in its issue dated 30.01.2016. It is this news item which was portrayed to establish the allegation of mala fides on part of respondent No. 2. This

allegation was further buttressed by instances of transfers of two other office .bearers of the Teachers Forum.

In this connection, it is argued that respondent No. 2 transferred one Mr. Mohammad Amin Khan, who is stated to be District President of

Teachers Forum, Kupwara, and who was posted as Master, BMS, Kupwara. He is stated to have been transferred and directed to report to the

Chief Education Officer, Bandipora, for further adjustment with a stipulation in the order that he shall be deemed to have been relieved and that the

Drawing and Disbursing Officer shall immediately issue LPC to him. According to the appellant, the said order was challenged in SWP No.

89/2016 on the grounds of mala fides and victimization. In that petition, the Court passed an order dated 25.01.2016 directing the respondents to

consider the case of said Mohammad Amin Khan in light of the averments made in that petition within two weeks and till that time his transfer

order was directed not be acted upon. However, according to the appellant, in violation of the said order passed by the Court, respondent No. 2

issued an order on 27.01.2016, posting one Ghulam Nabi Khan in BMS, Kupwara, against the post of Mohammad Amin Khan. Mr. Mohammad

Amin Khan is said to have filed another writ petition, SWP No. 142/2016 challenging the aforesaid order dated 27.01.2016. In that writ petition,

the Court directed respondent no. 2 to take a decision in his case in light of earlier Court direction dated 25.01.2016 by 10.02.2016 and till then

his position was ordered not to be disturbed.

Further according to the appellant, the other person, Mohammad Afzal Bhat, being the Provincial President of Teachers' Forum, was also

transferred. From the relevant order dated 27.01.2016, which forms annexure 'E' to the writ petition, it is borne out that he was holding the rank of

Master and was posted at DIET, Srinagar. He was transferred and adjusted at HS Sangarwani, Pulwama, on the available post. According to the

appellant, he had also filed a writ petition.

The above two instances are stated and quoted by the appellant with a view to demonstrate that respondent No. 2 was inimical against the

office bearers of the Union and was victimizing them; that the said act of respondent No. 2 was actuated by mala fides and that the appellant was

the third person in the series to be hit on account of such mala fide intentions of respondent No. 2. In this connection, it is stated that the action

against him was catalyzed by having approached the Government, respondent No. 1, with a representation voicing his grievance against transfers

by respondent No. 2 of the aforesaid two office bearers on pick and choose method.

Perusal of the order dated 16.01.2016, whereby Mr. Mohammad Amin Khan was transferred from BMS, Kupwara, to the office of Chief

Education Officer, Bandipora, reveals that in all 39 Lecturers in various disciplines, and Masters were transferred in the interest of administration.

The order without any discrimination or distinction among the transferees, stipulated that they shall be deemed to have been relieved and DDOs

shall immediately issue LPCs to them. Similar is the case with the transfer of another person, named, Mr. Mohd. Afzal, vide order dated

27.01.2016. That again was not an order whereby only that person was picked up, but the order concerned five Masters.

The impression sought to be created, and the plea of the appellant, that only the Office bearers of the Union were picked up for such transfers

is thus totally and wholly belied by the orders cited and relied upon by him, as referred to here in above. Axiomatically therefore no mala fides can

be read in, or established by such orders.

It may also be observed here that it is not anybody's case that the Government and/or the Director, School Education, Kashmir, were not

competent to pass the orders in question with such conditions as are actually mentioned therein. Once these authorities have such power, ordinarily

no mala fides can be read therein or attributed thereto, especially so when the same are issued in the interest of administration. Consequently the

transfers of the two persons cited on behalf of the appellant would not constitute any material, fact or factor to establish the allegation of mala fide

either against respondent No. 1 or 2. The prism through which the appellant wants this Court to look at the transfers of these two persons-office

bearers of the Union or Federation, whatever it may be-qua his order of transfer, is nonexistent. May be the appellant in his capacity as the

President of the Union/Federation has his own notions and understanding of his status, and therefore his outlook about the transfer orders is

different, but the law does not function in harmony with the misperceptions of litigants.

In view of the above, we are of the considered opinion that no advantage can be derived by the appellant from the transfer orders of the two

office bearers of the Union/Federation to establish the allegation of mala fide against respondent No. 2.

Now coming to the contents of news item that had appeared in the 'The Kashmir Monitor' in its issue dated 30.01.2016, the same were not

only vehemently denied and seriously contested by respondent No. 2, but he also produced another news item on the same subject which gave a

different version as to what had been said by him. The learned Writ Court has extensively reproduced the contents of the two news items in the

impugned judgment. It is not disputed that the contents of the two news items are totally at variance with each other. Further, it is not established

on record that respondent No. 2 had issued any press note to the press. The learned Writ Court in paragraphs 17 and 18 of the judgment has

observed as under:

It is not that respondent no. 2 has totally denied to have expressed or said anything. He has categorically denied the allegations of mala fides.

His assertion is that the reporting published in the newspaper 'The Kashmir Monitor' on 30.01.2016 is ex facie false and grossly erroneous. In

paragraph 5 of the objections filed by him, the Director has stated that he had, in fact, expressly stated that he was in favour of a healthy union and

that he personally appreciated good unions and believed that a good union can contribute towards growth of any department. It is averred that the

statement made by him also came to be reported in 'Kashmir Observer on the very same day. Respondent no. 2 has appended a downloaded

copy of the said reporting with his objections. It bears the caption 'DSEK seeks Teachers Cooperation for 'Reforming' Education System'.

Apart from the fact that the Director has explicitly denied the allegations, a bare reading of the two news items - one reported by the Kashmir

Monitor in its issue dated 30.01.2016 and the other carried by the Kashmir Observer on the same day, both quoted above - portray an absolute

contrast about what had professedly been said and expressed by respondent no. 2. The two reports are wholly different and give two different

impressions about what had been said. The fact or the content of the report as it appears in the news item carried by the Kashmir Observer is not

denied by any person, muchless the petitioner. In that view of the matter, the content of the news item appearing in the daily the Kashmir Monitor

is not only denied but, on the contrary, it is shown that instead something different was said. In such a situation, there being two types of news

reports available before the Court, this becomes a case of disputed questions of facts. It is not within the competence of this Court in its writ

jurisdiction to embark upon an enquiry into the questions of disputed facts to determine which of the two news items reports the correct version of

the statement made by respondent no. 2. On that count alone, these writ petitions are not maintainable.

Learned counsel for the appellant argued that once the learned Writ Court had come to the conclusion that there was a disputed question of fact

involved and held that it was not within the competence of the Court in its writ jurisdiction to embark upon an enquiry into the questions of disputed

facts, then the Court ought not to have proceeded further and decided the same factual controversy raised in the writ petitions one way or the

other. The learned counsel in this regard cited and relied upon the decision of the Hon'ble Supreme Court in Jagdish Prasad Shastri v. State of

UP, AIR 1971 SC 1224 wherein, according to the learned counsel, the Hon'ble Supreme Court has authoritatively pronounced that if disputed

questions of fact arise in a writ petition and the High Court is of the view that those may not appropriately be tried in a petition for a high

prerogative writ, the High Court has jurisdiction to refuse to try those questions and relate the party applying to his normal remedy to obtain

redress in a suit. Learned counsel submitted that applying the said proposition of law, the learned Writ Court has exercised a jurisdiction not vested

in it.

Before we go to the judgment in Jagdish Prasad Shastri v. State of UP (supra) to find ratio laid down therein in context of the facts

attendant to that case, it becomes necessary to juxtapose it with the findings of the learned Writ Court in the impugned judgment. As quoted

above, the learned Writ Court has observed that there being two contradictory news reports available before the Court, it became a case of

disputed questions of facts and that it is not within the competence of the writ Court in its writ jurisdiction to embark upon an enquiry into the

questions of disputed facts to determine which of the two news items was the correct version of the statement made by respondent No. 2.

Consequently, the writ petitions were held to be not maintainable. Having said so, the learned Writ Court has not proceeded to determine the

veracity of the two reports. The proposition of law advanced by Mr. Qayoom would be attracted only if the learned Writ Court, having recorded

the above, would have proceeded to determine the question as to which of the two news items reported the correct version of respondent No. 2

and then would have proceeded to decide the writ petition on such conclusion. We disagree. Instead, the learned Writ Court has observed that

even if it would have been assumed that whatever was reported in the news item, relied upon by the writ petitioner, was true, it would not in any

way smack of any recklessness or dishonesty on behalf of respondent No. 2 and that he had not exercised the power vested in him for any

extraneous, irrelevant or non-germane considerations. The relevant paragraphs 19, 20 and 21 of the judgment in this connection are quoted

hereunder:

Coming to another aspect of the matter, even if it be assumed that whatever is reported in the news item appearing in the Kashmir Monitor

had been actually said by respondent no. 2, does it smack of any recklessness or dishonesty on his behalf, and whether the power, if any vested in

respondent no. 2 in this regard, has been exercised for any extraneous, irrelevant or non-germane considerations, are the questions that fall for

determination. It is to be borne in mind that order dated 02.02.2016, where under the petitioner was repatriated from SSA and directed to report

to respondent no. 2, was issued by the Government in the School Education Department, not by respondent no. 2. Respondent no. 2 did not have

the power to repatriate the petitioner from SSA or to post him there or to continue him there. Therefore, nothing on that count can be attributed to

respondent no. 2. It is preposterous on the part of the petitioner to say that the Government passed the order in question to shelter respondent no.

There is nothing brought on the record to even remotely suggest that respondent no. 2 had any say in the matter or that he, in fact, did influence

the Government to pass such orders. On the contrary, the reason that effectuated the order is disclosed in para 2 of the preliminary objections filed

on behalf of the Government. It is averred therein that as on 31.01.2015, there were about 3000 officials who were posted in various departments

in non-teaching capacities. As a result of this, the Education Institutes/Schools in far flung areas were suffering. Faced with the situation, the

authorities concerned took a policy decision that all the attachments/ transfers of teaching staff to non-teaching positions shall be revoked forthwith.

Accordingly, a Government order, being Government order no. 08-Edu of 2015, dated 15.01.2015 was issued whereby all

attachments/deployments were revoked with immediate effect. Thereby, majority of such officials stood repatriated. However, there were

complaints regarding rampant attachments in the School Education Department. Accordingly, details were sought by the Government in terms of

letter dated 19.01.2016. On receipt of such information, it was brought to fore that 340 officials in Jammu Division, 251 in Kashmir Division and 7

in the Project Directorate, SSA had still been attached. It is averred that it was noticed that while some officials were being used for ministerial

work, some were being used for verification of degrees. It was also revealed that some officials were deployed in the centrally sponsored SSA

beyond sanctioned posts even though there was no functional requirement for their deployment in the office while at the same time various schools

continued to face acute shortage of teachers. Faced with such situation, the Government, respondent no. 1, issued order no. 260-Edu of 2016,

dated 02.02.2016 whereby general directions were issued to the Directors and other field functionaries for detachment of attached officials. Since

the Administrative Department alone is empowered to transfer officials from one Directorate to another and from SSA to the Directorates,

therefore, the officials deployed in SSA were repatriated by the Government and their further posting was left to be done by the concerned cadre

controlling authority.

Going by the above factual details, there remains no scope to doubt the object behind the whole exercise. It is not that only the petitioner,

because of him being the President of the Union was repatriated and transferred, or that the other members of the Union alone, mentioned in the

petition to support the ground of mala fides, were transferred; the annexures placed on record by the petitioner himself demonstrate that large

number of teachers/Masters/I/C-Headmasters were so transferred. It is not a case where the petitioner has been singled out muchless for any

extraneous consideration or that there has been any pick and choose resorted to by respondent no. 2. It otherwise sounds strange and illogical that

a Master is designated as Incharge Headmaster, but does not actually hold such a charge. The relevant Recruitment Rules do not envisage any

such designation. Such a designation is a misnomer. Incharge designations connote a situation where a person is actually put in the charge of a

higher post to factually discharge its functions. It speaks of exigency of a service demanding immediate and effective arrangements, which cannot

be used as a garb for conferment of fortuitous benefit. Be that as it may, coming back to the news item as carried by the Kashmir Monitor, the

portions within quotes therein, even if attributable to respondent no. 2, though he has specifically denied the same and produced the contradicting

material on record, speak of cleaning the system and bringing reforms in the Education Department. Saying that the union leaders will also have to

go to the schools to teach students would not in any way come within the definition of mala fides. They are really being paid their salaries from

public money only for that purpose. In fact, in the very same news item, it is reported that the petitioner himself had said that he, being a

government employee, is ready to serve anywhere he is posted, be it a far flung area. This is not any concession on his part, transfers and postings

are exigencies of service. If a government servant feels aggrieved of his transfer on legally recognised grounds, the law has provided a remedy; he

has a right to approach the Court of law. It is true that right to form associations is constitutionally guaranteed, but this right carries with it certain

limitations as well. Right to form an association or union does not reserve or create a right in any union office bearer to seek posting of his choice

or to refuse to obey a transfer and posting ordered in the interests of administration. The right to form an association or a union does not mean right

to achieve every object, nor does it confer a privilege or grant a license on any leader of an association or union to obliterate the hedges of

discipline and abandon or shirk his official duty for which he is being paid his salary.

Looking at it cumulatively, wholesomely and from broader perspective, it cannot be said that transfer of the petitioner is hot based on the

honest intention or good faith or that the power has been exercised for extraneous, irrelevant and/or for any non-germane consideration.

We have perused the judgment in Jagdish Prasad Shastri v. State of UP (supra). Therein the appellant before the Hon'ble Supreme Court

had been appointed as Panchayat Secretary in the Department of Panchayat Raj of the State of U.P. He was eligible for promotion to the post of

Panchayat Inspector. On 07.01.1959 he was placed at the top of the list of Panchayat Secretaries fit for promotion to the post of Panchayat

Inspector. On 22.06.1960 the appellant was promoted to the post of Panchayat Inspector-the post he was eligible to be promoted on. The order

did not specify whether this promotion was officiating or substantive. On 20.08.1960 (nearly two months after his promotion), the District

Panchayat Raj Officer, Meerut, reverted him to the post of Panchayat Secretary. But on protest, the Director, Panchayat Raj, rescinded that order

and re-instated him to the post of Panchayat Inspector making the appointment ""officiating"". Thereafter, on 22.01.1961, certain elections were

held. A complaint was made by one of the defeated candidates to the Director, Panchayat Raj, that the appellant and other officers had tampered

with the seal of the ballot box and had cancelled certain ballot papers. An inquiry was instituted against the appellant. On 02.02.1961 the District

Panchayat Raj Officer, Meerut, reverted the appellant to the post of Panchayat Secretary and directed that his name be struck off from the list of

Panchayat Secretaries maintained for appointment of officiating Panchayat Inspectors. Before this order was made no opportunity was given to

him to explain his conduct. He filed a writ petition before High Court of Allahabad, challenging order dated 02.02.1961. He claimed that he could

not be reduced in rank without giving him an opportunity of showing cause since his reduction in rank amounted to imposing a penalty and entailed

civil consequences. He also claimed that he was not reverted under the order of a competent officer; that the order violated the service rules and

the guarantee of Article 311 of the Constitution of India; that the order was made because of enmity between his family and the relatives of

Director of Panchayat Raj; and that he had reason to believe that on account of strained relations the Director passed an order without giving him

an opportunity of being heard. The writ petition was dismissed both by the learned Single Judge as well as by the Division Bench. On SLP being

filed by the appellant therein, the Hon'ble Supreme Court in paragraph 7 of the judgment observed as under:

The judgment of the High Court prompts three comments: (1) the appellant claimed that he was by order dated June 22, 1960, appointed

substantively to the post of Panchayat Inspector and thereafter he was unlawfully reverted. Without investigating this grievance the High Court

rejected the petition observing that on that plea disputed questions of fact fell to be determined. If disputed questions of fact arise in a writ petition,

and the High Court is of the view that those may not appropriately be tried in a petition for a high prerogative writ, the High Court has jurisdiction

to refuse to try those questions and to relegate the party applying to his normal remedy to obtain redress in a suit. The order of the High Court

rejecting the petition on the ground that disputed questions of fact fell to be determined in plainly illegal; (2) that if by the first order dated June 22,

1960 the appellant was appointed substantively as Panchayat Inspector, a subsequent order cancelling that order and reverting the appellant

without enquiry was illegal. If by the order dated June 22, 1960 the appellant was promoted substantively the impugned order dated February 24,

1961 was liable to be struck down as violative of the guarantee of Article 311 of the Constitution. The High Court did not reach any conclusion on

that question. The order dated December 13,1960, posting the appellant an officiating Inspector could not deprive the appellant of the protection

of the guarantee under Article 311(2); and 3) that the appellant pleaded in paragraph 23 and 24 of his petition and in paragraphs 24, 25 and 26 of

the affidavit in support of the petition, that in making the order the Director of Panchayat Raj was actuated by ill-will and malice. The Single Judge

summarily rejected the petition without considering these averments. The High Court also did not consider the plea that the Director of Panchayat

Raj had acted maliciously.

Then in paragraph 8 of the judgment, the Hon'ble Supreme Court observed as under:

The letter by which the appellant was reverted to the post of Panchayat Secretary and his name was also ordered to be struck off the list of

those Panchayat Secretaries maintained for promotion to the post of Panchayat Inspector, had a two-fold significance - (i) it rendered some

support to the plea of mala fides; (ii) it lent support to the claim of the appellant that the order involved civil consequences. The High Court

apparently allowed the letter to be brought on record, but thereafter declined to consider whether it prejudicially affected the appellant. The

direction that the appellant's name be struck off from the list of Panchayat Secretaries eligible for promotion to the post of Panchayat Inspector

involved very serious consequences to the appellant. Before such an order could be made it was obligatory upon the appropriate authority to give

an opportunity to the appellant to explain his conduct which merited that punishment. Admittedly no such opportunity as given to the appellant.

A perusal of the judgment would thus show that the facts of that case are entirely distinguishable from the facts of the present case. Therefore

neither the judgment on facts is applicable nor can the ratio so deduced be applied to the present case. Even so, it becomes clear that in that case

the High Court had held that there were disputed questions of fact involved and the same could not be appropriately tried by it, but, at the same

time, dismissed the writ petition, moreso without going into the merit of other factual and legal grounds taken in the writ petition. In the instant case,

the writ petition has not been dismissed in consequence of the learned Writ Court having held that it was not competent to determine which of the

two news items was correct. Instead, the learned Writ Court has proceeded to examine the question of mala fides in context of the contents of the

news item cited and relied upon by the appellant himself. It is not that the learned Writ Court dismissed the news item which was relied upon by the

appellant. It is to be borne in mind that even if the appellant would be relegated to establish the veracity of the contents of the news item relied

upon him and it is established by him that its contents were actually said by respondent No. 2, then again the fundamental question that needs to be

determined would be whether such contents would, in any way, constitute mala fides on the part of respondent No. 2. This is the question that was

posed by the learned Writ Court in the impugned judgment and answered therein. And we are of the considered view that the question has been

rightly answered.

It was next submitted by learned counsel for the appellant that since the learned Writ Court did not consider the contention of the appellant that

his order of repatriation was issued by respondent No. 1 at the behest of respondent No. 2, who was inimical towards him, the impugned

judgment suffers from an error. It was submitted that inference as to the mala fides has to be drawn by reading the record in between the lines and

to take into account the attendant circumstances. The learned counsel submitted that the appellant having asked for a writ of certiorari, which is

essentially a writ against record, it was obligatory on the part of the Writ Court to summon and examine the record relating to repatriation/transfer

of the appellant. The learned Writ Court in absence of such examination has decided the writ petition without ascertaining from the record whether

the allegations of mala fides levelled by the appellant were borne out from such record, the impugned judgment is liable to be set aside. The learned

counsel in this connection cited and relied upon the decisions of the Hon'ble Supreme Court in Rajendra Roy v. Union of India, AIR 1993 SC

1236 and M.S. Ahlawat v. State of Haryana, AIR 2000 SC 168.

We have gone through the two judgments. It would be appropriate to quote hereunder the relevant paragraphs of the aforesaid two judgments.

The observation of the Hon'ble Supreme Court relied upon by the learned counsel is contained in paragraph 7 of the judgment in Rajendra Roy

v. Union of India (supra). It needs to be borne in mind that in that case, the appellant before the Hon'ble Supreme Court was transferred from the

post of Inspector of Exhibitions DAVP, New Delhi, to the post of Inspector of Exhibitions DAVP, Calcutta. The appellant therein challenged the

order on the ground that it was not issued for administrative reasons in the interest of public service but was issued mala fide in order to get rid of

him because the respondent No. 2 had a personal score against the appellant and he manipulated the order of transfer. The Central Administrative

Tribunal was of the view that the allegation of malice and grudge alleged by the appellant against the respondents could not be substantiated. In

their counter to the Special Leave Petition, the respondents stated the background facts which had prompted them to transfer and post the

appellant at Calcutta. It was stated that the appellant was posted in Bihar, his home State, for 11 years and in Delhi for nine years. It was further

stated that one Shri S.N. Patra was transferred from Orissa to Calcutta and he joined there. Thereafter he had made a representation to the higher

authorities pointing out the hardship being suffered by him by the order of transfer. His representation was considered and it was decided to

transfer him back to Orissa. In view of such decision, there was a necessity to transfer one of the employees to Calcutta for holding the post.

Accordingly, the appellant was transferred to the said post in the exigencies of the service. Coming to the relevant paragraph of the judgment, i.e.,

paragraph 7, so far as relevant, it is extracted below:

It appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an

oblique purpose and/or for wrecking vengeance against him because the respondent no. 2 was anxious to get rid of him and he seized the

opportunity of transferring him from Delhi to Calcutta by transferring Shri Patra back to Orissa from Calcutta. It is true that the order of transfer

often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable

to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer, without any justification,

the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence. We

are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of

malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved

out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from

Calcutta. It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable

inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of

facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to

draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal. It appears that Shri Patra was

transferred to Calcutta and after joining the post he had made representation on account of personal hardship. Such representation was considered

and a decision was taken to transfer him back to Orissa region. As a result, a necessity arose to transfer an employee to Calcutta to replace Shri

Patra. It cannot be reasonably contended by the appellant that he should have been spared and someone else would have been transferred.

(Underlining supplied)

The above quoted portion of the judgment, which has been relied upon on behalf of the appellant herein, does not require any analysis. The

fundamentals of the law laid down therein are self evident. Herein it is the case of the appellant that he has been picked up for transfer because he

is the President of the Teachers' Federation. That office bearers of the Union were, in fact, irritants to respondent No. 2 and he wanted to transfer

them on that count was sought to be substantiated by the transfer of other two persons mentioned earlier. We have already adverted to that point.

As against that, it is the case of the respondents that, as on 31.01.2015, there were about 3000 teachers of different ranks of the School Education

Department who were posted in various departments in non-teaching capacities. As a result of this, the Education Institutes/ Schools in far flung

areas were suffering. Faced with the situation, the authorities concerned took a policy decision that all the attachments/transfers of teaching staff to

non-teaching positions shall be revoked forthwith. Accordingly, Government order, being Government order No. 08-Edu of 2015, dated

15.01.2015, was issued whereby all attachments/deployments were revoked with immediate effect. Thereby, majority of such officials stood

repatriated. However, there were complaints regarding rampant attachments in the School Education Department. Accordingly details were sought

by the Government in terms of letter dated 19.01.2016. On receipt of such information, it was brought to fore that 340 officials in Jammu Division,

251 in Kashmir Division and 7 in the Project Directorate, SSA, had still been attached. It is averred that it was noticed that while some officials

were being used for ministerial work, some were being used for verification of degrees. It was also revealed that some officials were deployed in

the centrally sponsored SSA beyond sanctioned posts even though there was no functional requirement for their deployment in the office while, at

the same time, various schools continued to face acute shortage of teachers. In such situation, the Government, respondent No. 1, issued order

No. 260-Edu of 2016, dated 02.02.2016 whereby general directions were issued to the Directors and other field functionaries for detachment of

attached officials. Since the Administrative Department alone is empowered to transfer officials from one Directorate to another and from SSA to

the Directorates, therefore the officials deployed in SSA were repatriated by the Government and their further posting was left to be done by the

concerned cadre controlling authority. As regards the appellant, it is stated that for the last seven years he has never been posted in any School.

The particulars of his postings since September, 2009, reveal that he has remained posted in District Institute of Education and Training (DIET),

Srinagar, with effect from 14.09.2009 to 11.9.2013; in the State Institute of Education (SIE), Srinagar, with effect from 13.09.2013 to

19.07.2014; and in Directorate of SSA, Srinagar, from 19.07.2014 till he was relieved therefrom. All the above facts are not denied. Otherwise

also, teachers of whatever rank are meant to be in the Schools, imparting education to the students. The facts disclosed depict an astonishing

scenario that teachers, Incharge Masters and Masters, who are drawing hefty amounts as their salaries, are posted on non-teaching positions and

mostly for doing ministerial jobs. The facts so pleaded by the respondents clearly make out that the transfers in question were made in light of the

aforesaid exigency of service.

Keeping these facts in view, we are of the considered opinion that no mala fides are made out on that score. The judgment in Rajendra Roy v.

Union of India (supra), cited and relied upon by the learned counsel, does not in any way support the case or the allegation of the writ petitioner.

The appellant herein has not laid any foundation, muchless a firm and cogent foundation of facts, the question of establishing the same is far remote.

The appellant has made mere insinuations, vague allegations and suggestions in the pleadings. In terms of the law so cited on behalf of the appellant

himself, inference of mala fides cannot be drawn from such insinuations, surmises and conjectures.

The copy of the judgment in M.S. Ahlawat v. State of Haryana, AIR 2000 SC 168 produced by the learned counsel, on perusal reveals

that it is not at all relevant to the point. It concerns the provisions of the Code of Criminal Procedure and the powers of the Hon'ble Supreme

Court under Article 142 of the Constitution of India.

Further, referring to the judgment of the Hon'ble Supreme Court in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 55 which has

been referred to in a subsequent case, B. Varadha Rao v. State of Karnataka, AIR 1986 SC 1955 learned counsel submitted when an order

has not been issued honestly or reasonably, it falls within the ambit of mala fide. Learned counsel contended that the order of repatriation of the

appellant has been issued by respondent Nos. 1 and 2 dishonestly, therefore the same is liable to be set aside. We have already reproduced the

facts which have prompted the respondents to issue the transfer order in question. The learned Writ Court has thoroughly considered the law laid

down by the Hon'ble Supreme Court and has held that it is not even remotely attracted in the present case. The relevant portion of the judgment is

quoted hereunder:

The appellant, admittedly, is holding the post of Incharge Headmaster. There can be no dispute that his services can be best utilised in a School

rather than in an office where he would be required to do ministerial job. It is the case of the respondents that the Government is streamlining the

functioning of the Schools for the benefit of society at large and that there are Schools in far flung areas where there is acute dearth and scarcity of

teachers. No dishonesty can be read in such a purposeful and holy object.

In the aforesaid judgment viz. E.P. Royappa v. State of Tamil Nadu (supra), the Hon'ble Supreme Court had observed as under:

It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority

has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees.

However this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is

based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of

power. Frequent transfers, without sufficient reasons to justify such transfers cannot but be held as mala fide. A transfer is mala fide when it is

made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other

purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even

administrative actions should be just and fair.

The decision of the Hon'ble Supreme Court in B. Varadha Rao v. State of Karnataka (supra) does not alter the law laid down in the earlier

case of E.P. Royappa v. State of Tamil Nadu (supra). In B. Varadha Rao v. State of Karnataka (supra) the Hon'ble Supreme Court has

thus categorically held that transfer in public service is an incident and an implied condition of service. The appointing authority has a wide

discretion in the matter.' The Government is the best judge to decide how to distribute and utilize the services of its employees. However, this

power has to be exercised honestly, bona fide and reasonably, not on extraneous considerations or for achieving an alien or oblique motive;

conversely it would amount to mala fide and colourable exercise of power. As already discussed, the order in the instant case has not been issued

for any extraneous consideration or oblique motive. The appellant has been transferred and posted where, by dint of his appointment, he ought to

be. We wholly concur to the view expressed by the learned Writ Court on the point.

The learned counsel also cited and relied upon the Constitutional Bench judgment of the Hon'ble Supreme Court in Management of

Syndicate Bank Ltd. v. the Workmen, AIR 1966 SC 1283 and submitted that in the said case, the Hon'ble Supreme Court has laid down that

if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for his trade union activities, the Industrial

Tribunals should interfere and set aside the same. We have considered the submission and gone through the judgment. No exception can be taken

to the law so laid down by the Hon'ble Apex Court. But the fundamental issue is that there has to be mala fide or any ulterior purpose from which

any such order emerges, before setting aside the same. Let us first note the facts of that case. In that case, one Mr, K. Veeranna, was employed as

a Clerk by the Syndicate Bank Ltd., at its Vijayawada Branch. By order dated 02.05.1963, he was transferred from Vijayawada to new branch

of the Bank which was to open at Banganpalli. Veeranna refused to join duty at Banganpalli and applied for leave on medical grounds. He

continued to be on medical leave till 12.12.1963. During this period, the Bank posted one Chandrashekhar from Nandyal branch to the

Banganpalli branch in place of Veeranna. In June 1963 Veeranna was elected as Joint Treasurer of the Andhra Pradesh Unit of the Workmen's

Union. Veeranna claimed that he was entitled to exemption from transfer under the Sastry Award. The Government of India under Section 10(1)

(d) of the Industrial Disputes Act referred the dispute for adjudication to the Industrial Tribunal, Hyderabad, and the issue was whether the transfer

of Veeranna, a workman of Canara Industrial and Syndicate Bank Ltd., from Vijayawada to Banganpalli was justified and, if not, to what relief

was the workman was entitled. The Industrial Tribunal after hearing the evidence adduced by the parties decided the issue in favour of the

workmen's Union, holding that transfer of Veeranna was prompted by mala fide considerations. However, the said decision of the Industrial

Tribunal was set aside by the Hon'ble Supreme Court holding as under:

Having analysed the evidence in this case, we are of opinion that the finding of the Tribunal that the transfer of Veerana is mala fide, is not

supported by any evidence and it is, therefore, perverse and defective in law. There is no doubt that the Banks are entitled to decide on a

consideration of the necessities of banking business whether the transfer of an employee should be made to a particular branch. There is also no

doubt that the management of the Bank is in the best position to judge how to distribute its employees between the different branches. We are,

therefore, of opinion that Industrial Tribunals should be very careful before they interfere with the orders made by the Banks in discharge of their

managerial function. It is true that if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for his trade

union activities, the Industrial Tribunals should interfere and set aside such an order of transfer, because the mala fide exercise of power is not

considered to be the legal exercise of the power given by law. But the finding of mala fide should be reached by Industrial Tribunals only if there is

sufficient and proper evidence in support of the finding. Such a finding should not be reached capriciously or on flimsy grounds as the Industrial

Tribunal has done in the present case. This view is borne out by the decision of this Court in Bareilly Electricity Supply Co. Ltd. V. Sirajuddin

(1960) 1 Lab. LJ 556 (SC).

(Underlining supplied)

Having minutely gone through the contents of the judgment, we are at a loss to understand the aid which the judgment would provide to the

appellant. Ironically it proves fatal for the cause the appellant agitates.

We may also mention here that the learned counsel for the appellant in order to support the plea of mala fide also sought to cite an incident

which allegedly took place on 26.02.2016. According to the learned counsel, during the pendency of the writ petition, respondent No. 2 broke

open the locks of the room at DIET, Srinagar, which was in the use of Jammu and Kashmir Teachers Forum as their office for decades, and

ransacked the same. It is alleged that this was done to demean the appellant and other office bearers of the Union in order to punish them. It may

be mentioned here that as per the particulars given in the impugned judgment the first writ petition, SWP No. 167/2016, was filed by the appellant

on 04.02.2016 and the second writ petition, SWP No. 199/2016, was filed by him on 08.02.2016. Final arguments in both the writ petitions were

heard on 23.02.2016 and 25.02.2016. These particulars have meticulously been given in the impugned judgment. The aforesaid alleged incident

therefore admittedly relates to a date which falls much after the appellant had filed the two writ petitions, and in fact after the writ petitions had

finally been heard and judgment had been reserved. In such a situation the respondents would not be able to retort to any such allegations in their

reply affidavit. The contention that the failure of the respondents to respond to this assertion establishes mala fide, must therefore fail. Further, we

are of the view that it is farfetched to even assume that there could be any connection between the exercise of power by respondents to repatriate

and transfer the teachers/Incharge Masters/Masters/Lecturers, including the appellant from non-teaching positions and post them in different

Schools.

The next argument raised on behalf of the appellant was that the Writ Court in the impugned judgment has stated that the newspaper reports

are not evidence of the contents thereof and that the reports are to be proved in the manner provided by law. According to the learned counsel, it

is well settled that in a writ petition, the petition, counter affidavit and rejoinder affidavit not only constitute pleadings of the case, but also partake

the character of evidence. It was submitted that the appellant in paragraph 9 of the writ petition having made a specific averment about the

newspaper reports and the said pleading being supported by an affidavit, therefore in law the writ petition, the affidavit filed in support thereof and

the newspaper cuttings constituted pleadings as well as proof of the pleadings referred to in the petition. According to the learned counsel, reading

the writ petition, newspaper reports and the affidavit of the appellant along with Section 81 of the Evidence Act, it was clear that the plea of mala

fide raised by the appellant against the respondents stood established. The argument raised is not supported by any law or judgment. If it were so

that the writ petition and the newspaper report would establish the plea of mala fide, then there would be no need to seek reply from the

respondents. Even otherwise, going by the law laid down by the Hon'ble Supreme Court, what has been held by the learned Single Judge is the

correct position of law. We may in this connection refer to the decision of the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd. v. BPL

Mobile Cellular Ltd., (2008) 13 SCC 597 where in paragraph 36 of the judgment, their Lordships relied upon an earlier decision in Revinder

Kumar Sharma v. State of Assam, (1999) 7 SCC 435 on the point. The relevant portion of the judgment in Revinder Kumar Sharma v.

State of Assam as quoted by the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd. v. BPL Mobile Cellular Ltd (supra) is extracted

below:

Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and

conveyed the necessary information to one and all including Respondents 2 and 3. But the presumption of genuineness attached under Section 81

to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay (Laxmi Raj

Shetty v. State of T.N.) (AIR 1988 SC 1274).

It may also be relevant and appropriate to mention here that in Laxmi Raj Shetty v. State of T. N. (supra), the Supreme Court had laid

down as under:

Judicial notice cannot be taken of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence. A

report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, by

which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report

cannot be treated as proof of facts reported therein. It is now well-settled that a statement of fact contained in a newspaper is merely hearsay and,

therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact

reported.

In view of the above settled position of law, the argument of the learned counsel deserves to be rejected and is so rejected.

The learned counsel for the appellant submitted that the appellant had proceeded on one month's medical leave with effect from 16.01.2016

and on 02.02.2016 he was on such leave. The leave was extended by the appellant for two more months with effect from 17.02.2016. It was

therefore not open to the respondents to repatriate the appellant from SSA and post him as I/C Headmaster at Ogmuna, Baramulla. It was

contended that the Government had no jurisdiction to relieve the writ petitioner from the post of Consultant in SSA, Srinagar, while he was on

leave. Learned counsel, referring to Articles 39 and 126 of the Jammu and Kashmir Civil Sendee Regulations, which relate to the handing over and

taking over of the charge and how an officer on medical leave may be required to produce a medical certificate of fitness signed by the Medical

Officer. Mr. Mohammad Iqbal Dar, learned counsel for the respondents in this connection submitted that the appellant did not annex the leave

applications with his writ petition. This is an afterthought on his part and that appellant cannot be allowed to take any additional factual plea in the

appeal. We agree with the argument advanced by Mr. Dar; the appellant cannot be allowed to take such a plea for the first time in appeal, when

the same has not been taken up before the learned Writ Court. Apart from that, this plea itself gives rise to an anomalous scenario being self

contradictory. It may be recalled that in order to support and establish mala fide on the part of the respondents, especially on the part of

respondent No. 2, it has been his case that when Mohammad Amin Khan, Master (District President of Teachers Forum, Kupwara), and Mohd.

Afzal, Master (Provincial President, J&K Teachers' Forum), were transferred by orders dated 16.01.2016 and 27.01.2016, respectively, he

approached respondent No. 1 and made a representation against such pick and choose method that annoyed respondent No. 2 which promoted

him to issue his transfer order. At the same time it is now pleaded that the appellant was on medical leave from 16.01.2016. The two assertive

statements made by the appellant are irreconcilable. The Court would not rely on such contradictory statements.

We may also mention here that the learned counsel for the appellant also cited and produced certain judgments concerning possession of

immovable property. We are not going into the controversy that is sought to be raised thereby in this Letters Patent Appeal, essentially filed against

the impugned judgment passed by the learned Single Judge.

Mr. Mohammad Iqbal Dar, learned Additional Advocate General, appearing counsel for the respondents, also produced copies of numerous

judgments along with his written submissions. Most of these judgments have already been noted and discussed by the learned Writ Court in the

impugned judgment. Therefore we hesitate to overburden this judgment copiously with citations and references.

Having minutely gone through the impugned judgment, we are of the view that the learned Writ Court, has dealt with the matter in accordance

with the law settled by the Hon'ble Supreme Court, particularly the one governing transfers. Therefore we do not see any infirmity in the reasoning

recorded by the learned Writ Court in the impugned judgment.

Consequently, no ground is made out to warrant interference with the impugned judgment on any count whatsoever.

Both the appeals are accordingly dismissed along with connected MPs. The assurance extended by Mr. Mohammad Iqbal Dar, learned AAG,

on behalf of the respondents recited in the order dated 14th March, 2016 is discharged.

No order as to costs.