Mahendra Kumar Dubey vs State of MP and others

Sujoy Paul, Judge

By filing this petition under Article 226 of the Constitution, the petitioner, Assistant Director, Fisheries, is transferred from Shivpuri to Rajgarh. Shri Rajendra Shrivastava, learned counsel for the petitioner, has assailed this order on two grounds - (i) the petitioner is subjected to a frequent transfer (ii) transfer order is arising out of malafide and not based on any administrative exigency. It is stated that the petitioner was transferred by order dated 5.6.2010 from Bhind to Datia, by order dated 3.2.2011 from Datia to Shivpuri and within a short time from Shivpuri to Dhar. By relying on paras 5.6 and 5.7 of the writ petition, it is argued that the respondent No. 3, a local MLA, intended to favour certain persons and at their instance a false complaint was lodged before the Ministry against the petitioner. The complaint was lodged by those persons, against whom the petitioner initiated police complaints for illegal activities. By placing reliance on a document dated 13.1.2012, it is stated that the order is communicated to respondent No. 3, which shows that the order is passed at the behest of respondent No. 3. Shri Rajendra Shrivastava further submits that a qustion was asked in State Assembly and Government replied by Annexure P-9 that certain complaints were made against the petitioner, which were substanceless and were rejected. Learned counsel submits that the Government has not chosen to inform Assembly about any other enquiry or adverse material against the petitioner. He submits that Annexure R-3 dated 26.9.2011 is a preliminary enquiry report, which cannot be a ground for his transfer. Lastly, it is stated that the petitioner is a heart patient and has recently undergone a bypass surgery at Apolo Hospital, Delhi, therefore, it will not be proper to transfer him at this juncture.

Per Contra, Smt. Nidhi Patankar supported the departmental action and referred to Clause 9.15 of the transfer policy (Annexure R/2) to submit that the transfer can be made even on complaints. She relied on Annexure R-3, a preliminary enquiry report, to submit that in administrative exigency it is not proper to keep the petitioner at Shivpuri.

Shri S.B. Mishra, learned senior counsel appearing for respondent No. 3, submits that the allegations of malafide raised by the petitioner are specifically denied. He submits that even otherwise as an elected representative the respondent No. 3 has a right to seek transfer of a person not performing his duties as per the expectation of the people. He relied on Mohd. Masood Ahmad Vs. State of U.P. and Others,

I have heard learned counsel for the parties and perused the record.

So far the ground of frequent transfer is concerned, the frequent transfers are interfered with in cases of low-paid employees of class-3 and class-4. The petitioner is a senior officer and principle of frequent transfer cannot be made applicable in his case. Therefore, I am not inclined to interfere on this ground. The interference in frequent transfers of class-3 and class-4 is made because they are low-paid employees and their shifting may uproot their family. This is clear from the judgment of Supreme Court in B. Varadha Rao Vs. State of Karnataka and Others, Relevant portion of it reads as under:-

But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer.

So far allegation of malice is concerned, the allegation of petitioner from para 5.6 onwards of the petition are specifically denied by the respondents. However, it is an admitted fact that the petitioner is transferred on the basis of complaints and stand of the Government is that transfer can be made even on complaints. Although learned counsel for the petitioner relied on (2003) 11 SCC 740 (Sarvesh Kumar Awasthi vs. U.P. Jal Nigam and others) to submit that such transfers are bad in law, in my considered opinion, the interference was made by Supreme Court in the said case when it was satisfied that the efficient and independent officer was transferred at the instance of politician. In the present case, a preliminary enquiry was conducted against the petitioner. A senior officer of petitioner''s department has conducted the preliminary enquiry and submitted his report, Annexure R-3. A series of allegations were enquired and the said authority gave opinion against the petitioner. The respondents have not chosen to take any disciplinary action against the petitioner as yet but have chosen to transfer the petitioner. Thus, it cannot be said that there is no basis for transfer of the petitioner. In view of this report, the said judgment has no application.

Clause 9.15 of the transfer policy (Annexure R-2) reads as under:

A question came before the Supreme Court whether a person can be transferred only on the basis of allegation/complaint. The Supreme Court in Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, opined as under:-

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

The Division Bench of Supreme Court in Mohd. Masood Ahmad''s case (supra) held as under:-

Even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. It is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, there is no infirmity in the impugned transfer order.

On the basis of aforesaid judgments and clause 9.15 of transfer policy, it is clear that a person can be transferred on the basis of complaint. No stigma is attached to the petitioner. Transfer is not punitive in nature. Merely because the Government has not disclosed about the preliminary enquiry report, Annexure R-3, in the State Assembly, it will not preclude a competent authority to transfer the petitioner. Transfer is a condition of service. The administrative authorities are the best judge to decide as to where an officer is to be posted, as pointed out by Justice Holmes of the US Supreme Court, there must be some free-play of the joints provided to the executive authorities. On the basis of aforesaid analysis, I am unable to hold that the impugned order is either arbitrary or capricious in nature. So far personal grounds are concerned, the petitioner is at liberty to prefer representation before the competent authority and pursue the same. I find no reason to interfere in the present matter. Writ Petition is dismissed. No costs.