R.P. Singh vs State of Madhya Pradesh and two Others

Admit. Taken for final hearing.

Appellant has challenged the judgment in appeal dated 16-01-2013 passed in writ petition No. 20363/2012 by which learned Single Judge has declined to interfere with the order of transfer. In writ petition the petitioner contended that the impugned order dated 01-12-2012 is illegal, arbitrary and suffers from malice in fact and malice in law since it has been passed inter-alia without any reason and that too within the period of five months from his earlier transfer dated 15-07-2012.

The petitioner was transferred to Sagar on 15-07-2012 and the respondent No. 3 was transferred from Sagar to Ujjain. Within a period of five months the petitioner has been transferred from Sagar to Ujjain and the respondent has been transferred back from Ujjain to Sagar. The transfer order is passed on the administrative grounds.

Learned counsel for the appellant submitted that the learned single Judge failed to notice that the transfer was vitiated by malice in law. We, however, find from the petition that though there are pleadings to the effect that the transfer is so vitiated, there is no pleading as to whether action of a particular individual is vitiated in malice in law. Learned counsel for the appellant submitted that malice in law can be inferred and can be attributed to the actions of the State without reference to the action of an individual. Having considered the matter and particularly having regard to the leading case of Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, , we find that the allegation of malice in law was made with reference to the action of a particular officer. Malice is a quality like goodness which can only be attributed to an individual. Whether the inference drawn is one of malice in fact or the malice in law it cannot be done without reference to the particular act of an individual. The term ''malice'' invariably applies to acts of individuals in criminal law. It is difficult to appreciate the contention that malice or malafide can be attributed to actions of the State. We, therefore, reject the said submission.

As far as other contentions, we find that the learned Single Judge has by a well considered order relied on several decisions of the Supreme Court for rejecting the contention that the impugned transfer is vitiated by malafides or is made in violation of any provision, held:-

I have considered the respective submissions made by learned counsel for the parties and have perused the record produced by learned Additional Advocate General. It is well settled in law that transfer is an incidence of service. Which employee should be posted where is a matter for appropriate authority to decide. Until and unless the transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. [See Union of India and Others Vs. S.L. Abbas, , The Government of A.P. Vs. G. Venkata Ratnam, , State of Haryana and Others Vs. Kashmir Singh and Another etc. etc., ]. Similarly in Public Services Tribunal Bar Association Vs. State of U.P. and Another, , once again dealing with the scope of judicial review in the matter of transfer, Supreme Court reiterated that transfer is an incidence of service and normally should not be interfered with by the Court. If any administrative guidelines regarding transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of their grievance. Transfer made contrary to policy can also not be interfered with. Similar view has been taken in the case of State of U.P. and Others Vs. Gobardhan Lal, .

In the backdrop of aforesaid, well settled legal position, the facts of one case may be seen. Undoubtedly, the petitioner has been transferred within a short span of five months to Ujjain. The order of transfer has neither been passed in violation of any statutory provision nor the same suffers from the vice of malafide. Even assuming that the order of transfer has been passed in violation of the policy of transfer, at best the same confers the right on the employee to approach the higher authorities for redressal of his grievance. Therefore, no interference on this ground can be made. This Court cannot sit in appeal over the decision taken by the employer in the matter of posting an employee. However, the order of transfer was passed on 1.12.2012. A Bench of this Court vide order dated 4.12.2012 had directed the parties to maintain status-quo and had further directed that no coercive action be taken against the petitioner. Taking into account the peculiar facts of the case, I am inclined to dispose of the writ petition with a direction that in case, the petitioner submits a representation to the Competent Authority within a period of two weeks from the date of receipt of certified copy of the order passed today, the Competent Authority shall consider and decide the representation submitted by the petitioner by a speaking order in exercise of powers under Clause 15 of the policy of transfer within a period of two months from the date of receipt of such a representation. Till the representation submitted by the petitioner is decided, no coercive action shall be taken against him.

Learned counsel for the appellant submitted that the file do not show any particular administrative reason which has been given for effecting the transfer. We do not think that merely because a particular reason has not been given in this case, the transfer which is made on administrative grounds as expressly stated in the order can be held to be vitiated.

The respondent No. 3 has filed a return stating that the transfer is not at his behest. The petitioner has not been able to successfully point out that there is anybody who held any grudge against him. In the circumstances we are not inclined to interfere.. In the result, appeal fails and is dismissed. No costs.