Dr. Mukesh Kumar Vashistha vs State of Rajasthan and Others

Dr. B.S. Chauhan, J.—The instant writ petition has been filed challenging the judgment and order of the Rajasthan Civil Services Appellate Tribunal dated 25.10.2000 (Annx. 1), by which the appeal of the petitioner against the impugned transfer order has been rejected.

The facts and circumstances giving rise to this case are that petitioner stood transferred, vide order dated 22.7.2000, from Bhusawar (District Bharatpur) to Shakkargarh (District Bhilwara) and he filed an appeal against the said order of transfer before the learned Tribunal, which was disposed of vide order dated 31.7.2000, directing the petitioner to file a representation before the Competent Authority and the said representation has been rejected. Thus, the petitioner again approached the leaned Tribunal against the order of rejection of his representation and that appeal has been rejected by the learned Tribunal vide order dated 25.10.2000. Hence this petition.

Mr. Singhal, learned counsel for the petitioner has raised various issues, including the allegation of malafide against respondent No.4, the Medical Officer incharge of Bhusawar Health centre, but in fact the transfer has been made by the Director, Medical & Health Services. There are no allegations against respondent No. 1. Moreso, allegations of malafide against respondent No.4 are not sufficient to be taken note of for entertaining this petition on this ground. The transfer had been made by respondent No.2, against whom there are no allegation of malafide.

It is settled proposition of law that for proving the allegations of malafides, there must be very strong and convincing evidence to establish the same for the reason that there is a presumption in favour of the bonafides of the order unless contradicted by acceptable material. Though the inference of malafides may be drawn by reading in between the lines and taking into account the attending circumstances. The inference, however, must be based on factual matrix which should be based on evidence and not in surmises or conjectures. Moreso, the allegations must be of a very high magnitude, (Vide E.P. Royappa Vs. State of Tamil Nadu and Another, ; Tara Chand Khatri Vs. Municipal Corporation of Delhi and Others, ; Sukhwinder Pal Bipan Kumar and Others Vs. State of Punjab and Others, ; Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and Others, ; M. Sankaranarayanan, IAS Vs. State of Karnataka and others, ; N.K. Singh Vs. Union of India and others, ; State of Uttar Pradesh v. Dr. D.N. Prasad; Arvind Dattatraya Dhande Vs. State of Maharashtra and others, ; Utkal University Vs. Dr. Nrusingha Charan Sarangi and Others, ; Parbodh Sagar Vs. Punjab State Electricity Board and Others, .

In Kiran Gupta and Others Vs. State of U.P. and Others Etc., , the Hon''ble Supreme Court held that "the allegations of malafide may be wild and preposterous to be entertained in the absence of any incontrovertible and irrefragable material to support it and to rebut the presumption of regularity of the official record."

Thus, in view of the above, the submissions made on malafide are not of such a magnitude that the writ court should take note of it and this issue is not worth further consideration.

Transfer is an incident of service and transfer order should never be passed on the ground of duration at a particular place for the simple reason that it is the employer who has to decide as when and on what place the services of an employee are required in administrative exigency. The Tribunal or the Court should not interfere with the transfer order unless the transfer order is shown either passed in flagrant violation of the statutory Rules or had been passed on malafide grounds. The issue of malafides may be considered by the Court or the Tribunal only in case the person against whom malafides are alleged has been impleaded by name as a party and he has been given the opportunity to rebut the allegations of malafides. (Vide State of Bihar and Another Vs. P.P. Sharma, IAS and Another, ; All India State Bank Officers Federation and Ors. V. Union of lndia and Ors. JT 1996 (8) 550; Dr.J.N.Banabalikar V. Municipal Corporation of Delhi & Anr., AIR 1996 SC 326)

The transfer policy framed by the State Government does not have any statutory character and the terms and conditions incorporated in the transfer policy are not enforceable in Court of law as held by the Hon''ble Supreme Court in Bank of India Vs. Jagjit Singh Mehta, ; Union of India and Others Vs. S.L. Abbas, ; Mrs. Shilpi Bose and others Vs. State of Bihar and others, ; and State of Punjab and others Vs. Joginder Singh Dhatt, .

The personal inconveniences caused to any employee by transfer order can be considered only by the employer and not by the Court or the Tribunal.

In State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, the Apex Court deprecated the practice of showing sympathy by the Courts and Tribunals, in interfering with the transfer orders on the ground of personal inconvenience caused to the employee. In case the transfer order causes certain inconveniences the only remedy available to the employee is to make a representation before the employer and employer should consider the same keeping the administrative exigency in mind. However, at the same time employer should "not brush aside the personal inconveniences of its employee being personal in nature.

If the case of the petitioner is examined in the light of the aforesaid proposition of law, undoubtedly, an employee cannot be made a shuttle-cock as It is neither desirable nor does it serve any purpose of the employee or the employer. An employee should be given a reasonable time to serve at a particular place unless his services are required in administrative exigency at some other place. Petitioner has claimed that during the period of five years service, he had been transferred seven time. Inspite of the fact that the employer has a right to transfer and re-transfer an employee, the transfer should be made only in the requirement of administration. The issue of personal inconvenience of the employee should also be considered considering the interest of administration as of paramount importance.

In the instant case, the orders have been passed twice by the learned Tribunal in a very cryptic manner and the representation of the petitioner has also been rejected on the ground that the transfer had been made for administrative reasons, without disclosing as what are those reasons. If petitioner is at a fault, the Department should not hesitate in dealing with him in accordance with law. They should initiate enquiry and conclude it expeditiously if he is at fault and if the allegations are of serious nature, he can be put under suspension also. But without disclosing anything, the petitioner should not be dealt with in such a casual and cavilliar manner by the mighty employer.

As the grounds taken in the petition are personal in nature, I am not inclined to interfere with the impugned order The competent authority is requested to re-consider the case and pass an appropriate order, examining the requirement of administrative exigency, within a period of four weeks from the date of filing the certified copy of this, judgment/order with a fresh representation. Moreso, if the petitioner has not been, paid the dues and he makes such a representation before the Competent Authority, the same should be released forthwith.

The petition is disposed of with the aforesaid observations without issuing notice to the other side.