Ashwani Kumar Sharma vs Dr. Y.S. Parmar University And Others

Jyotsna Rewal Dua, J

On his promotion as Superintendent on regular basis, petitioner was transferred from the Department of Seed Science and Technology, University of Horticulture and Forestry (UHF), Nauni, District Solan, H.P. to Regional Horticulture Research & Training Station, Bajaura, District Kullu, H.P. vide order dated 26.08.2020. Aggrieved against his transfer, instant writ petition has been preferred.

Impugned order dated 26.08.2020 has been challenged on following counts :-

(i) The order has been issued with malafide intentions on part of respondent No. 2. A Physical Verification Committee, of which petitioner as a Senior Assistant, was the Chairman, had detected a shortcoming of Rs. 1,08,425/-. Respondent No. 2, then working as Director/Co-ordinator of the Regional Centre, was held responsible for this shortcoming and had deposited the amount in Comptroller's account in 2019. In July, 2019, respondent No. 2 became the Vice Chancellor of the respondent University. Adopting revengeful approach, he removed the petitioner from Physical Verification Committee in October, 2019. Further, on 22.10.2019, he transferred the petitioner from the Office of Comptroller to the Department of Seed, Science and Technology. It has also been alleged that the petitioner's wife, working as Technical Assistant Grade-I (Computer) in the respondent University, being senior most, had applied for allotment of Type-III accommodation. The House Allotment Committee in its meeting held on 27.01.2020 recommended her case for allotment of Type-III accommodation. However, respondent No. 2 acting with vindictive attitude did not approve the recommendations only to harass the petitioner.

(ii) The respondent University issued two separate transfer orders on 26.08.2020. Under one order, eight incumbents were promoted as Superintendents and were retained in the University. Vide another order of even date, four incumbents, including the petitioner, were promoted as Superintendents and have been posted outside the University of Horticulture and Forestry (UHF), Nauni. Petitioner on his promotion as Superintendent has been transferred to Regional Horticulture Research & Training Station, Bajaura. It has been alleged that juniors to the petitioner have been retained in the University of Horticulture and Forestry (UHF), Nauni, whereas petitioner has been transferred out of the University.

In their reply, respondents No. 1 and 2 denied transferring the petitioner due to any malafide intention. It has been stated that petitioner had carried out his work as Chairman of Physical Verification Committee alongwith other members. In lieu of report of this Committee, respondent No. 2, in his capacity as the then Director/Co-ordinator of the Regional Centre, had deposited an amount of Rs. 1,08,425/ -. Only on account of this fact, it cannot be assumed by the petitioner that his transfer has been ordered on account of any alleged revengeful attitude.

It has been submitted that existing incumbent- respondent No. 3, who was working as Superintendent at Regional Horticulture Research & Training Station, Bajaura, was promoted to the post of Section Officer on 25.08.2020 and, as such, was posted in the Department of Seed Science and Technology, University of Horticulture and Forestry (UHF), Nauni, District Solan against the post of Section Officer as the post of Section Officer is not available at Regional Horticulture Research & Training Station, Bajaura, District Kullu. Therefore, in view of administrative exigency and urgency of the work at Regional Horticulture Research & Training Station, Bajaura, District Kullu, H.P., petitioner on promotion to the post of Superintendent, was transferred to the vacant post of Superintendent at Bajaura. Respondent No. 3 has already joined as Section Officer at Nauni and the resultant vacancy demands that the petitioner joins there in the interest of University work.

This Court in CWP No. 511 of 2020, titled as Sheela Suryavanshi Vs. State of H.P. and others while dealing with the issue of malafide transfers has held as under :-

"5. In Black's Law Dictionary 'malafide' is said to be an intentional doing of a wrong act without just cause or excuse, it is done with an intention to inflict an injury or under such circumstances that the law will imply an evil motive to the act.

The Hon'ble Supreme Court has considered the question of malafide in case of transfer and the following principles are laid down in the case of B. Varadha Rao vs. State of Karnataka & Others, AIR 1986 SC 1955:

"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, bonafide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous consideration or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as in 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."

Similarly in the case of Mrs. Shilpi Bose and Others vs. State of Bihar & Others, AIR 1991 SC 532, it is observed by the Supreme Court as under:-

"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 Administrations which would not be conductive to public interest. The administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders".

Thereafter, in the Case of Rajendra Roy vs. Union of India and another, AIR 1993 SC 1236, the principle is laid down in the following manner:-

"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 malafide 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."

Thus, on malafide, it can be said that the principal test of a due and proper exercise of the power is to ask the question: Was the transfer made for real administrative exigency? In finding the answer the Court might have to pierce the veil of the transfer order and see what was the operative reason for the transfer. If the findings reveal a nexus with administrative necessity, the exercise of the power will be upheld. If however, the operative reason has no such nexus then the transfer will be vulnerable. In the latter case it will be a malafide use of power and will take within its sweep all situations where the nexus and administrative exigencies is absent. It needs to be emphasised that in the present context malafide is not limited to the personal malice of the authority making the transfer. Malafide has two components i.e. malice in law and malice in fact.

It may be stated here that if the transfers are made in order to adjust particular persons with no reasonable basis, such type of transfers can be termed as malafide one and would normally be liable to be quashed."

It is not in dispute that the petitioner has served for more than 31 years in the main Campus of the University at Nauni, District Solan, H.P. It is on his promotion that he was transferred to Regional Horticulture Research & Training Station, Bajaura, District Kullu, H.P. The transfer has been ordered against a post, which became vacant on account of promotion and transfer of existing incumbent/respondent No. 3. In case, the petitioner is not desirous of his transfer to Regional Horticulture Research & Training Station, Bajaura, District Kullu, H.P. as Superintendent, it is always upto him to forego his promotion as is the stand taken in the reply. Merely because the petitioner, as a part of Physical Verification Committee, had detected shortcomings of Rs.1,08,425/-, which amount was eventually deposited by respondent No. 2 in his capacity as the then Director/Co-ordinator of Regional Centre, will not ipso facto imply that all further actions/orders of respondent No. 2, who is now the Vice Chancellor of the University, in case they somehow adversely affect the petitioner, have to be presumed to have been passed only for malafide reasons or that the respondent No. 2 is trying to settle his personal grudges against the petitioner. As per uncontroverted submissions in the reply, petitioner's wife had refused to get Set No. 8, Type-III accommodation during her turn. Even otherwise, in case petitioner's wife was legally entitled to Type-III accommodation, allegedly recommended in her favour by the House Allotment Committee, then it is for her to take legal recourse in that regard. Petitioner is himself trying to give malafide colour to the impugned transfer order. Respondent No. 2 being the Vice Chancellor of the University is empowered to transfer its employees. It is for the employer to judge which employee is to be posted and where according to his capability to bring efficiency and effectiveness in the organization.

For the foregoing reasons, we find no merit in the present writ petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.