Deevan Singh Devra vs State of Rajasthan and Others

Alok Sharma, J—Under challenge is the order dated 11.05.2015, passed by the Rajasthan Civil Service Appellate Tribunal, Jaipur (hereinafter "the Tribunal") dismissing the petitioner''s appeal against his transfer order dated 19.09.2014 whereby he was transferred from the post of SME (Vigilance), Jaipur to Technical Advisor DMG, Udaipur. Quite obviously the transfer order dated 19.09.2014 is also under challenge.

Mr. R.P. Singh, Sr. Advocate appearing with Mr. Shashi Kant Saini, for the petitioner has submitted that even though the petitioner has a residential house at Udaipur where his children are studying and he has no inconvenience with his transfer per se, yet challenge thereto was made before the Tribunal and is now laid before this Court on point of principle as also to protect his reputation. Sr. Counsel submitted that the petitioner was posted out as SME (Vigilance), Jaipur to Udaipur on the behest of the Mining Mafia operating in Makrana, Udaipur and Kota and the transfer was/is neither for reason of administrative exigency nor in public interest. Instead it is vitiated by mala fides. In support of the attack on the transfer a mala fide, reference has been made to the following facts:

Posted as SME (Vigilance), Jaipur under the order dated 04.02.2014, the petitioner states to have started an extraordinary drive and took action against illegal mining. He lodged 16 FIRs against the lease holders and others engaged in such activities and visited many with penalties, of which 60 lakhs were recovered within a period of a few months of the petitioner''s posting as SME (Vigilance), Jaipur. As SME (Vigilance), Jaipur, the petitioner was then specially required to carry out an inquiry on the complaint of one Naushad Ali son of Shri Liyakat Ali after an earlier inquiry by the AME (Vigilance), who had imposed upon the lease holders of ML No. 106/1 and 106/2 a penalty of Rs. 20 lakhs. The petitioner found from his inquiry that the lease holders of ML. No. 106/1 and 106/2 had indulged in massive avoidance of payment of royalty and also in illegal mining over sawai chak (government land) resulting in an overall loss of State revenue to an extent of about 18 crores. The report was submitted on 18.09.2014. A copy thereof had been marked to AME (Vigilance), Makrana prior thereto on 17.09.2014 itself. A FIR was lodged thereupon at Police Station, Makrana. It has been submitted that no sooner the petitioner''s report dated 18.09.2014 was submitted to the Department, on the day following i.e. 19.09.2014, the petitioner was transferred to Udaipur. And the petitioner''s transfer was thus clearly linked to the submission of his report against the lease holders of ML Nos. 106/1 and 106/2 and an obvious blowback on account of the petitioner''s "punctilious performance of his duties resulting into stepping on some toes that were politically sensitive and economically influential."

Aggrieved of the transfer order dated 19.09.2014, the petitioner approached the Tribunal in appeal No. 1032/2014. Therein vide order dated 20.10.2014, the petitioner''s transfer was stayed consequent to which he continued on the post of SME (Vigilance) at Jaipur. And while the petitioner was under protection of the Tribunal''s order dated 20.10.2014, on a starred Assembly question, raised by a MLA, relating to illegal mining activity in the close vicinity of abadi areas in Ramgarh Tehsil, District Alwar, a three member Committee (all ex-officio) including the petitioner was constituted by the Director, Mines and Geology, Udaipur vide order dated 23.2.2015 to physically verify the mining leases in issue, report and facilitate filing of the reply to the starred question in the Assembly. It has been submitted that the Committee carried out physical verification of the mining activities of four of the over forty mining leases targeted between 23.02.2015 and 26.02.2015 and a report in regard thereto submitted on 26.02.2015 finding that all four were operating in contravention of law. It has been submitted that all the four lease holders have powerful connection and had been carrying their illegal mining activities despite the orders to the contrary by NGT and various Courts and even observations of the Hon''ble Apex Court. It has been submitted that no sooner that the report was submitted on 26.02.2015, the petitioner was again targeted with a fresh salvo, removing him from the Committee for inspection and requiring him to look after cases of the Mining Department pending before the Hon''ble Supreme Court and NGT. Simultaneously the charge of SME (Vigilance), Jaipur was handed over to one N.K. Bairwa, substantively only a Mining Engineer in a tearing hurry only to block the petitioner''s missionary zeal against illegal mining and the operating Mafia.

Sr. Counsel submitted that the order dated 26.02.2015 removing the petitioner as a member of the Inspection Committee is further indicative of malice against the petitioner informing his transfer dated 19.09.2014. The order dated 26.02.2015 even though subsequent to the order of transfer dated 19.09.2014 in fact buttresses the petitioner''s case that he was deliberately targeted as SME (Vigilance), Jaipur under the pressure of the mining Mafia in Makrana, Alwar, Kotputli, Sikar and Jhunjhunu and victimized for his pro-active discharge of his duties in public interest.

Reverting to the Makrana report of 18.09.2014, Sr. Counsel strenuously urged that the political weight and financial influence of the lease holders of ML No. 106/1 and 106/2 in Makrana is evident from the fact that subsequent to the petitioner''s report dated 18.09.2014 with regard to illegal mining in Makrana and revenue loss of Rs. 18 crores, a third Committee headed by an ADM was constituted on 13.10.2014 and required to revisit the matter. Whereupon vide its report dated 27.11.2014 it oddly found no wrong doing at the instance of the lease holders of ML Nos. 106/1 and 106/2 at Makrana. And now a fourth inspection has been ordered on 31.03.2015 into the illegal mining over Sawai Chak land by the lease holders of ML Nos. 106/1 and 106/2 by the Joint Secretary (Mines) with a direction to submit its inquiry report within a period of fifteen days. The said report has not yet been seen the light of the day, submitted Sr. Counsel and the exercise was mere eyewash. Sr. Counsel also pointed out that the oddity of the procedure evident from four inspections of an area where illegal mining over government land has been alleged is a tell-tale sign of the leaseholders in issue found liable by the petitioner in his report dated 18.09.2014 being powerful enough to pull the levers in Government and facilitate the petitioner''s impugned transfer. It was submitted that the lessees in question should have been required in the ordinary course to avail their remedy of appeal/revision under the Rajasthan Minor Mineral Concessions Rules, 1986 (hereinafter "MMCR Rules 1986") against the finding of their complicity in illegal mining as per the petitioner''s report dated 18.09.2014. It was also submitted that in the FIR lodged against the leasee, a negative report was filed and the mining department capitulated in finally having the matter closed.

Mr. Anurag Sharma, learned AAG appearing for the respondents submits that the case set up by the petitioner on the ground of mala fide is wholly baseless and contrary to the record pertaining to the petitioners transfer from SME (Vigilance), Jaipur to Udaipur. It has been submitted that the proposal of the petitioner''s transfer along with 17 others was initiated by the Principal Secretary (Mines) as early as 01.08.2014 and received the assent of the Hon''ble Chief Minister on 31.08.2014 much before the petitioner''s report from his inspection in Makrana on 18.09.2014. The file was received by the Principal Secretary (Mines) from the Chief Minister''s office on 18.09.2014 whereupon the petitioner was transferred. It has been submitted that the date of the report submitted by the petitioner on 18.09.2014 with regard to the illegal mining in Makrana was only coincidental with the petitioner''s transfer the following day-nothing more and yet the coincidence has been cynically used to set up a false and baseless case of mala fides. It has been further submitted that even aside of that, the petitioner''s case based on mala fide has no legs to stand on inasmuch as no person, especially the Principal Secretary (Mines) against whom allegations have been made, as if by second wind, in the additional affidavit filed by the petitioner, has been impleaded as the party, nor any specific allegations with material particulars have been made. It has been submitted that the attempt to prop up the case of mala fides in the transfer order dated 19.09.2014 by referring to the report dated 26.02.2015 submitted by the petitioner as a member of the three members committee headed by the Additional Director of Mines on 26.02.2015 qua four mines inspected at Ramgarh Tehsil, District Alwar is of no event as the said inquiry report is obviously an event subsequent to the petitioner''s transfer. To argue that the order dated 26.02.2015 requiring the petitioner to henceforth look after pending cases of the mining department before various Courts/NGT reflects a pre-existing mala fide is a non-sequitur and a desperate one. It has been further submitted that even the argument with regard to the alleged feathers ruffled by the petitioner as a member of three members Committee is without basis. The Committee was headed by an ADM (higher officer) and it was not the petitioner''s report in his individual capacity. And albeit there was a change in the constitution of the Committee of inspection, with two different Committees of junior officers required to carry out the inspection of the Alwar mines, yet subsequently, the three members Committee was resuscitated and required to carry out inspection which have since been completed for all 48 mines in the Alwar region and the report submitted. Learned AAG pointed out that N.K. Bairwa, a SME on urgent and temporary basis under Rule 23 of the Rajasthan Mines & Geological Service Rules, 1960 (hereinafter "the Rules of 1960") joined as SME (Vigilance), Jaipur on 07.10.2014 before the Tribunal vide order dated 20.10.2014 stayed the petitioner''s transfer dated 19.09.2014. There then obtained two SMEs (Vigilance). Work had to be allocated between them. So it was vide order dated 26.02.2015.

The learned AAG also submitted that the lodging of 16 FIRs by the petitioner while working as SME (Vigilance), Jaipur and recovery of penalty amount of Rs. 60 lakhs are not extraordinary events for the reason that targeting illegal mining invoking both the criminal process and penalty provisions under Rule 48 of the MMCR Rules 1986 is a part of job description of SME (Vigilance) and his duty. It has been submitted that the petitioner as SME (Vigilance), Jaipur cannot be allowed to make insinuation with regard to the report submitted by the ADM, a superior officer, on 27.11.2014 on the basis of his inspection finding that no case of illegal mining whatsoever had been made out as allegedly Naushad Ali in Makrana. Be as it may, the Joint Secretary (Mines) was required to submit his report vide order dated 31.03.2015. The said report has been submitted and is presently under consideration of the Government. It has been submitted that in the facts obtaining, the transfer of the petitioner vide order dated 19.09.2014 was wholly routine, a mere consequence of administrative exigency. The Principal Secretary Mining Department is entitled to his view of the efficacy of employees in the mining department and has the right to determine the place of their posting in the exigencies of administration. It has been submitted that the learned Tribunal has considered the case of the petitioner in detail and found it to be merit-less. And the petitioner has also not been able to be make out any case before this Court to discredit the Tribunal''s reasoning. Consequently the writ petition impugning the Tribunal''s order dated 11.05.2015 upholding the petitioner''s transfer order dated 19.09.2014 is baseless, without merit and liable to be dismissed.

Heard and considered.

It has been stated by the Hon''ble Apex Court as also this Court ad nauseam that the transfer is an incident of service and the competent authority is fully empowered to resort thereto qua its employees/subordinates in the exigency of administration and public interest. Exigency of administration is a matter which lies in the assessment of the competent authority determining the question as to where an employee be transferred to be best utilized. The order of transfer is thus plainly an administrative order. The Courts cannot second guess the administrative authority on this count and so realizing have limited by various pronouncements the extent of their interference in matter of transfer to cases of mala fide, contravention of a statutory rule and on occasions to humanitarian grounds where the special facts of a case so warrant. In the case at hand, only mala fides have been alleged as vitiating to petitioner''s transfer order dated 19.09.2014. Are they made out is the question?

In E.P. Royappa Vs. State of Tamil Nadu and Another, AIR 1974 SC 555 : (1974) LabIC 427 : (1974) 1 LLJ 172 : (1974) 4 SCC 3 : (1974) 2 SCR 348 a Constitution Bench of the Hon''ble Apex Court has held that an allegation of mala fide is more easily stated than proved. The burden of proving mala fide lies heavily on the one who alleges it. And the seriousness of allegations demands proof of a high order with substantial credibility. In Svenska Handelsbanken Vs. M/s. Indian Charge Chrome and others, AIR 1994 SC 626 : (1994) 1 BC 215 : (1994) 78 CLT 1 : (1994) 79 CompCas 589 : (1994) 1 CompLJ 145 : (1993) 6 JT 189 : (1993) 4 SCALE 124 : (1994) 1 SCC 502 : (1993) 3 SCR 323 Supp , the Hon''ble Apex Court has held that mere pleadings of mala fide would not suffice and to be of any worth must be supported by material and evidence of high probative worth. In Union of India (UOI) Vs. Chaturbhai M. Patel and Co., AIR 1976 SC 712 : (1976) 1 SCC 747 : (1976) SCC(Cri) 179 : (1976) 2 SCR 902 : (1976) 8 UJ 120 the Hon''ble Apex Court has held that even where the circumstances in a given case may be suspicious, however strange the coincidences may be, the circumstances may even be grave and seemingly almost grasping at the allegations of mala fide made, yet suspicion alone cannot take the place of proof for cases of mala fides as much as in case of fraud. In Kedar Nath Bahl Vs. The State of Punjab and Others, AIR 1979 SC 220 : (1978) 4 SCC 336 : (1979) 1 SCR 1089 : (1979) 1 SLJ 105 it has been held by the Hon''ble Apex Court that where allegations of mala fide were quite vague and indefinite without material particulars, there was no obligation on the respondents to even deal with such allegations in the reply. It was held that where malus animus is to be proved indicating that the respondents were actuated either by spite or ill-will against a petitioner or by indirect or improper motives evidence to prove the same has to be not only admissible but of the highest order.

On allegations of mala fide made in the case at hand, I am of the considered view that they are liable to be dismissed. Mala fide pleaded in the instant case is of fact. The allegation is that the petitioner''s "great work" as SME (Vigilance), Jaipur ruffled feathers of the mining Mafia spread over Makrana, Alwar, Kotputli, Sikar and Jhunjhunu. However the so called mining Mafia has remained un-named and undisclosed in the writ petition and so does its influence over any officer of the Government. None has been named, no connection, direct or in indirect or even by reasonable inference shown. The court has been required instead to draw inferences from the chronology of events, the petitioner''s "outstanding work" and efforts to dampen its impact. The self congratulatory assertion of 16 FIRs and recovery of 60 lakhs of penalty are however of little avail for the reason that the learned AAG appearing for the respondents has rightly pointed out that resorting to the criminal process and penalty proceedings against illegal mining was the substance of the job description of a SME (Vigilance). Nothing extraordinary therefore can be attributed as the learned AAG rightly submitted to the performance of the petitioner while posted SME (Vigilance), Jaipur.

The assertion that the petitioner''s inquiry report dated 18.09.2014 qua the alleged illegal mining by the lease holders of ML No. 106/1 and 106/2 triggered the petitioner''s transfer is also not made out from the fact on record of the case. For one, the FIR lodged at the instance of the petitioner by AME (Vigilance) at Makrana qua the alleged revenue loss of 18 crores rupees resulting from illegal mining in sawai chak land has since been closed with the negative report of the Police following investigation and its acceptance by the mining department itself expressing dis-inclination to file/pursue a protest petition there-against. The petitioner''s allegation of loss of 18 crore of public revenue for reason of illegal mining in Makrana has been negated by a subsequent inquiry of ADM (a superior officer) conducted on 27.11.2014 concluding that no revenue loss was entailed nor any illegal mining done as allegedly by the complainant Naushad Ali. This Court has no reason to believe at this stage, that the report of ADM was incorrect or that the petitioner''s report as submitted by him on 18.09.2014 has to be of necessity the last word. The matter, under the order of the Government in the circumstances obtaining, has been gone into by the Joint Secretary, (Mines) as per the government order dated 31.03.2015 and this Court is informed that a report has been indeed submitted and is under consideration of the State Government.

From the facts on record it is established that the petitioner''s report on Naushad Ali''s complaint being filed on 18.09.2014 and the petitioner being transferred on 19.09.2014 is a sheer co-incidence as the petitioner''s transfer was proposed along with 17 others by the Principal Secretary (Mines) on 01.08.2014 and the file was finally processed upto the Hon''ble Chief Minister till her concurring with the proposal on 31.08.2014. The petitioner was thereupon transferred on 19.09.2014. There is thus no connection between the petitioner''s inquiry report qua the Makrana dispute on the complaint filed by Naushad Ali and his transfer. As far as the petitioner''s report as a member of three members committee submitted on 26.02.2015 is concerned, it was evidently itself a post transfer event and cannot even remotely be set up as a fact for supplying the mala fides invoked by the petitioner. In my considered opinion, the case set up by the petitioner is based on drumming up suspicion and is not of substance; no material of probative worth necessary to trigger a favourable adjudication by courts has been placed on record. This court cannot enter into and traverse the depths of the evil human mind as the petitioner would have it do and base its conclusions on possibilities founded upon an argument of suspicion. On the facts detailed hereinabove, I have no doubt that the Tribunal has rightly held that the petitioner''s transfer could not be said to be vitiated by mala fides but was a routine one along with 17 others in the due course of administration.

I also find no force in the contention of Mr. R.P. Singh, Sr. Advocate that merely by the fact that in respect of the petitioner''s ACRs for the year 2005-2008, the Principal Secretary (Mines) did not agree with the evaluation by the Assessing Officer and the Reviewing Officer it indicates that the proposal for the petitioner''s transfer (along with 17 others) initiated by the Principal Secretary (Mines) on 01.08.2014 was intrinsically vitiated by bias/mala fides. In the case of State of M. P. Vs. Ganekar Motghare, (1989) 1 JT 345 Supp : (1989) 2 SCALE 1187 : (1989) 2 SCC 703 Supp : (1989) 2 SCR 248 Supp : (1990) 1 SLJ 1 , the Hon''ble Apex Court held that where a Deputy Director was compulsorily retired on the recommendations of the Screening Committee, merely because the Director who earlier as head of the Department had adversely evaluated him, it would not indicate bias on that count alone in the consideration of the compulsory retirement of the Deputy Director, by a committee including the Director. It was held that there was nothing wrong with the inclusion of the Director in the Committee and only for the historical reason of his earlier having adversely marked the Deputy Director in the course of his duties, neither bias nor malice could be imputed to the Director. It was similarly held in State of Uttar Pradesh & Anr. Vs. Raj Kishore Bhargava [1992 Supp (2) SCC 92].

For the reasons aforesaid, I am of the considered view that the challenge to his transfer on 19.09.2015 by the petitioner is without merit. The Tribunal''s order dated 11.05.2015 upholding the said transfer is not open 1 to interference by the Court on any ground.

Dismissed.