Narendra Kumar vs State of U.P. and Others

Sudhir Agarwal, J.—It is contended that impugned order of transfer has been passed mala fide and at the instance of District President of Ruling Party and my attention is drawn to letter dated 10.10.2012, Annexure 5-A to the writ petition allegedly written by Pradeep Pandey to the District Magistrate, Shahjahanpur requesting for taking action against petitioner. However, neither any person has been impleaded by name against which mala fide is alleged nor any ground has been taken in the writ petition. Hence the said plea cannot be entertained at all.

It is well settled that a person against whom plea of mala fide is taken shall be impleaded no nomine since plea of mala fide is not available against unnatural person. The Apex Court has gone to the extent that in absence of impleadment of a person eo nomine, against whom plea of mala fide is alleged, Court cannot not even entertain the plea of mala fide.

The Apex Court in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, of the judgment, held:--

It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G. N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them.

(Emphasis added)

In Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi and another, of the judgment, it has been held:

Further in the absence of impleadment of the...the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court.

In All India State Bank Officers'' Federation and Others Vs. Union of India (UOI) and Others, , the Hon''ble Apex Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under:

The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot he allowed to raise the allegations of mala fide, which allegations, in fact, are without merit.

(Emphasis added)

In Federation of Railway Officers Association and Others Vs. Union of India (UOI), it has been held:

That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations.

(Emphasis added)

The aforesaid view has been followed by various Division Benches of this Court including Dr. Harikant Mishra, Lecturer/Assistant Professor in Philosophy, Jagadguru Rambhadracharya Handicapped University Vs. State of U.P. and Others, and Salahuddin (In Jail) Vs. State of Uttar Pradesh, .

In view of the above, since the person against whom the plea of mala fide has been levelled is not impleaded, I have no hesitation in declining the contention of the petitioner to assail the impugned order on the ground of mala fide.

So far as order of transfer is concerned, it is not the case of the petitioner that the impugned order of transfer is against statutory rules or has been passed by an authority not competent to do so or is vitiated on account of mala fide. The service of the petitioner are transferable. The transfer being exigency of service, an employee is liable to be transferred from one place to another and normally no case for interference in Court of law is called for unless the case is within categories, as mentioned above.

Recently in The Registrar General High Court of The Registrar General High Court of Judicature at Madras Vs. R. Perachi and Others, , the Court has observed:

...transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma....

The Court also referred to its earlier decision in Airports Authority of India Vs. Rajeev Ratan Pandey and Others, and said:

in a matter of transfer of a Govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.

A transfer is made in administrative exigency, if there is a complaint pending and instead of a regular department enquiry, the authority concerned decided to transfer a person concerned. It would then be a transfer purely on administrative ground and not by way of punishment etc. This approach has been approved by Apex Court in The Registrar General High Court of Judicature at Madras Vs. R. Perachi and Others, , and in para 27 of the judgment the Court observed:

...the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first Respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee.

In Tushar D. Bhatt Vs. State of Gujarat and Another, reiterating well established principle in long chain of authority the Court said:

The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies.

In view of the aforesaid, the writ petition lacks merit. Dismissed.