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Judgment
Ajit Kumar Sinha, J.—The present writ petition has been preferred with a prayer for issuance of an appropriate writ, order or direction particularly a writ in the nature of certiorari for quashing the notification No. 2687 issued vide memo No. 2695 dated 30.6.2008 whereby and whereunder the petitioner has been transferred from Drinking Water & Sanitation Circle, (hereinafter referred to as D.W. & S.C.) Tenughat to D.W.& S.C., Chaibasa within a short span of less than six months from the date of his earlier transfer.
The writ petitioner has also prayed to quash the notification No. 2673 issued vide same memo No. 2695 dated 30.6.2008 vide which the private respondent No. 4 was transferred and posted in place of the petitioner from D.W. & S.C, Patratu to Tenughat.
The facts, in brief, are set out as under:
The petitioner was working as incharge Executive Engineer in D.W. & S.C, Government of Jharkhand, Ranchi. He was earlier transferred from D.W. & S.C, Gumla to D.W. & S.C, Ramgarh in June, 2004. The petitioner vide notification No. 2592 issued vide memo No. 1003 dated 28.6.2007 was transferred from the post of incharge Executive Engineer D.W. & S.C, Ramgarh to the post of Incharge, Technical Advisor to the Superintending Engineer in D.W. & S.C., Medini Nagar and the petitioner accordingly joined at his transferred place. The petitioner was again transferred vide notification No. 5960 issued vide memo No. 5964 dated 31.12.2007 from the post of incharge, Technical Advisor to the Superintending Engineer under D.W. & S.C, Medini Nagar to the post of Incharge, Executive Engineer, D.W. & S.C, Tenughat. Accordingly the petitioner joined the transferred place on 16.1.2008. The petitioner, thereafter has been transferred vide the impugned notification No. 2695 dated 30.06.2008 which is under challenge. This transfer order is part of a chain of several transfers.
The main contention raised by the petitioner is that the transfer was illegal because the name of the petitioner has been included in the impugned notification under challenge without the recommendation of the Establishment Committee and the same was in violation to the policy decision and the resolution dated 25.10.80 framed in accordance with the rules of Executive business which are framed in exercise of power conferred under Article 161 of the Constitution of India. The second contention raised by the petitioner is that frequent transfer is deemed to be malafide and liable to be declared as illegal, arbitrary and deserves to be quashed.
The petitioner has referred to and relied upon Man Singh v. State of Bihar and Ors. reported in 1982 BBCJ 392 wherein a Division Bench of Patna High Court ruled that though the guidelines framed by the State is directory in nature yet the same should be substantially followed. The Division Bench in paragraph-9 held that though these instructions are not rules under Article 309 of the Constitution of India, the State Government can issue executive instructions to supplement the rules.
It has further been argued that the case of the petitioner is squarely and fully covered by the order dated 27.2.07 passed in writ petition (S) No. 42 of 2007 as reported in 2007 (2) ILJR 267. It has also been argued that L.P.A. No. 114 of 2007 preferred against the Single Bench Order also affirmed the order of the Writ Court and the same is reported in 2008 (2) JCR 306 (Jhar.)- The counsel for the petitioner has further referred to a judgment in an identical matter dated 7.5.07 passed in L.P.A. No. 170/07. The aforesaid case has been relied upon by the counsel for the petitioner mainly on the ground that the order of transfer in absence of the recommendation of the Establishment Committee was illegal and was rightly quashed.
The counsel for the petitioner has further referred to and relied upon B. Varadha Rao Vs. State of Karnataka and Others, wherein at Paragraph 5 the Hon''ble Supreme Court has quoted the observation of E.P. Royappa Vs. State of Tamil Nadu and Another,
It is an accepted principle that in public service transfer is an Incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government Is the best judge to decide how to distribute and utilize the services of Its employees. However this power must be exercised honestly, bona fide and reasonable. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive It would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies or service but for other purpose, that is to accommodate'' another person for undisclosed reasons. It is the basic principle of rule or law and good administration, that even administrative actions should be just and fair.
The petitioner has also contended that as per the Resolution dated 25th October, 1980 vide Clause 14-B it is specifically provided that the proposals for transfer posting has to be routed through the Establishment Committee and to be finally approved by the Departmental Minister.
The main contention raised by the petitioner is that frequent transfers have been held to be illegal, deemed to be malafide and deserves to be quashed.
On behalf of the State Sri Modi appears and contends that this writ petition deserves to be dismissed on the ground that no malafide has been alleged nor the person concerned against whom malafide has been argued is impleaded which is necessary. It has also referred to and relied upon a Division Bench Judgment of Patna High Court reported in 1992 (1) PUR 209 wherein according to him it has been held that the Minister incharge was duly empowered and in that case also the name of the transferred candidate was not included by the Establishment Committee and the Minister included that name and sent It back and it was upheld being legal and valid by the Hon''ble High Court. It was also held that the recommendation of the Establishment Committee Is directory and not mandatory and accordingly the transfer orders were not disturbed by the Hon''ble High Court.
The counsel for the State further submits that it is a chain transfer involving many people and thus there was no question of arbitrariness and or malafide and he further submits that the guidelines/resolution has been duly complied with and followed. He has also submitted that the resolution dated 25th October, 1980 Is directory and not mandatory.
The counsel for the respondent further submits that at no point of time the petitioner challenged the first and second transfer which suited to him and thus no malafide or arbitrariness can be alleged with regard to the allegation of frequent transfer. It has also been stated that the entire transfer and posting have been acted upon and even the petitioner handed over the charge of the post and respondent No. 4 who has been transferred and posted in his place pursuant to the notification dated 30.6.2008, has started discharging his duty. However, by concealing the material facts on 12.8.2008 the writ petitioner got an interim order of stay and it was in this background that an application for vacating the exparte interim stay was filed but since the writ petition itself has been taken up for final disposal, the same is not being pressed.
Learned Senior counsel Sri Suhail Anwar, appearing on behalf of the Private Respondent No.4 submits that his case is a genuine, bonafide case and as per the main notification dated 13.6.2008 he was duly transferred and posted in place of the petitioner and he had, accordingly, joined and was discharging his duty bonafidely. It has further been submitted on behalf of private respondent No.4 that there is no fault of his and at least his transfer and posting was in accordance with the rules and regulations since it was fully endorsed and approved by the Establishment Committee and finally by the Minister and thus no arbitrariness, error or illegality can be shown as regards the respondent No.4 case is concerned and thus he is entitled to join on his transferred post.
I have considered the pleadings and the rival contentions raised on behalf of the petitioner, respondent State and the private respondent. The law with regard to transfer and posting has been well settled time and again by the Hon�ble Supreme Court as well as the High Court. In a recent judgment reported in Mohd. Masood Ahmad Vs. State of U.P. and Others, after considering a series of judgments on transfer the Hon�ble Supreme Court held as under:
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India, National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allaha bad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
In the aforesaid case also it was alleged that the transfer was made at the instance of M.L.A. and the appellant therein was transferred due to a pending complaint against him. The Hon�ble Supreme Court after considering the facts and circumstances and the law held that even if the allegation of the appellant is agreed that he was transferred on the recommendation of an M.L.A. that by itself would not vitiate the transfer order. It was also held that if there was any complaint against official, the State Government was certainly within its jurisdiction to transfer such an employee. The present case is squarely covered from the aforesaid judgment referred and the facts stated therein. In the present case also there were serious charges and complaint against the petitioner and for such case it has been specifically held that the transfer order based on complaint was justified and the State Government was empowered to transfer such person. It also held that the recommendation by the M.L.A. for transfer cannot be a ground to hold it illegal.
The respondents in their counter affidavit have specifically submitted that the name of the petitioner was included for transfer from Tenughat to Chaibasa since there was serious charges/allegations leveled against him as he had, without the written approval of competent authority permitted execution of extra work under the scheme of Ramgarh Cantonement Board and paid bills to the tune of Rs. 7 lakhs and odd. It is also admitted that the said extra work was never approved by the competent authority and the Government had to release Rs. 7,70,632/- in favour of the contractor for which a show cause notice has already been issued vide memo No. 746 dated 19.2.2008 and inspite of reminder the petitioner has not filed reply to the show cause.
The Hon''ble Supreme Court in State of Punjab and others Vs. Joginder Singh Dhatt, held as under:
We have heard learned Counsel for the parties. This Court has time and'' again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy Vs. Union of India (UOI) and Another, , National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, , State of India v. Anjan Sanyal 2001 (5) SCC 574. The principle of law as laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who Issued the orders, were not competent to pass the orders.
The learned Counsel for the petitioner has heavily relied on B. Varadha Rao Vs. State of Karnataka and Others, and in particular para 5 which is the observation made by the Hon''ble Supreme Court in E.P. Royappa case, 1974(4) SCC 73. However, the Hon''ble Supreme Court finally dismissed the SLP and directed the petitioner therein to join the new place of posting.
Even under Rule 22 (5) of the Rules of Executive Business the recommendation of the Departmental Establishment Committee has to be approved by the Minister incharge and at the time of approval of the recommendation the Minister is competent to include or exclude the names in the list recommended by the Establishment Committee and only after the list is approved by the Minister Incharge it becomes final. Thus, in the instant case the required procedure was followed and only thereafter the notification for transfer was issued. It has been time and again reiterated by the Hon''ble Supreme Court that the transfer from one place to another can always be made on administrative ground and in exigency of work and even the circular/instructions referred to and relied upon is directory in nature and not mandatory no where prohibits it.
The counsel for the respondent rightly argued that they have assigned reasons specifically in the counter affidavit that the transfer order was bonafide and not arbitrary and it was because of the serious complaint and charges against the petitioner and thus the Government was fully empowered to transfer. Be that as it may, the admitted fact remains that there is no pleading with regard to malafide nor the petitioner has impleaded the Minister incharge who had included the name of the petitioner in the transfer list.
In a recent decision reported in M.V. Thimmaiah and Others Vs. Union Public Service Commission and Others, the Hon''ble Supreme Court at Paragraph 19 has held that the allegation of malafide cannot'' be entertained unless the person against whom malafide is alleged has been impleaded as a party. It also opined that the Allegation of malafide is very easy to be levelled and very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision making process. People are prone to make such allegations but the Courts owe its duties to scrutinize the allegation meticulously because the person who is making the allegation of animus does something bonafidely or some times malafidely due to his non-selection. He has a vested interest and unless the allegations are substantiated beyond doubt the Court cannot draw its conclusion and accordingly reject the allegation of malafide.
Even in 1992 (1) PUR 209 the Division Bench of Patna High Court has held that the Minister incharge was well within its power and competence to make such alteration and or modification which are necessary in public interest and in the best interest of administration.
In the case of Man Singh v. State of Bihar and Ors. 1982 B.B.CJ. 392, the Division Bench of the Patna High Court has ruled that though the guidelines framed by the State is directory in nature yet the same shall be substantially followed. Though, it has been held that the transfer even without recommendation of the Establishment Committee cannot be said to be invalid in the circumstances of the said case. Even as per the circular the Establishment Committee is formed in each department with the approval of the departmental Minister and they have the power only to recommend transfer/posting.
In the case of State of U.P. and Others Vs. Gobardhan Lal, , the Supreme Court has held that the transfer of employee is not only an incident inherent in the terms of appointment, but also implicit as an essential condition of service and unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made.
It is relevant to point out that both in 2007 (2) J.L.J.R. 267, which is an order passed by learned Single Judge of this Court, as well as in 2008(2) J.C.R. 306, which is an order passed by a Division Bench of this Court, which have been heavily relied upon by the learned Counsel for the petitioner, it has been consistently held that even deviation from circular/instruction can be made in special circumstances, public interest and for administrative reasons and exigencies of work for which reasons have to be disclosed. In the instant case specific reason has been given in detail with regard to serious charges and complaint against the petitioner, which led to his transfer and the same has not been denied. It will be evident that there was a complaint for serious charges against the petitioner herein which has actually been dealt with in detail in the counter affidavit and a show cause notice was also issued vide memo No. 746 dated 19.2.2008 and thus the Minister incharge (Government), the ultimate final authority, was certainly empowered to transfer the petitioner in the special circumstance which was undoubtedly in public interest and in the best interest of administration and exigencies of work.
Considering the aforesaid facts and circumstances of the case and the settled law, this writ petition is devoid of any merit and is accordingly dismissed without any order as to costs.