Sohrab Ali vs State of Assam and Others

A.K. Patnaik, J.—This is an appeal against the judgment dated 7.6.95 of he learned single Judge dismissing Civil Rule No. 2335/95 filed by the appellant.

The facts briefly arc that the Appellant, an officer of the Assam Civil Service, was posted as Project Director, DRDA, Golaghat in the years 1992 to 1994. As such Project Director, DRDA, Golaghat, ho made some purchases of tarpaulin for different development blocks of the value of Rs. 11,28,878.00. The Appellant was thereafter transferred and posted as A.D.C., Nagaon on 18.12.94. Daring his posting as A.D.C., Nagaon, he was suspended by order dated 21.2.95 of the Government of Assam in the Personnel Department in contemplation of disciplinary proceeding for irregular purchase of tarpaulin as Project Director, DRDA, Golaghat. Aggrieved by the order of suspension, the Appellant moved the learned single Judge under Article 226 of the Constitution registered as Civil Rule No. 823/95 and by the judgment dated 3.5.95, this Court quashed the order of suspension. Pursuant to the said judgment dated 3.5.95, the Appellant was reinstated in service and was posted as A.D.C., Kokrajhar by the order of the Government of Assam, Personnel Department (A). The Appellant challenged the aforesaid order dated 3.6.95 posting him as A.D.C. Kokrajhar, in Civil Rule No. 2335/95 filed under Article 226 of the Constitution on the ground that pursuant to the judgment dated 3.5.95 the Appellant stood reinstated as A.D.C. Nagaon where he was posted before suspension and that the posting of the Appellant as A.D.C., Kokrajhar was vitiated by mala fides. Relying on the judgment of the Apex Court in the case of N.K. Singh v. Union of India (1994) 6 SCC 95, the learned single Judge held that the power of the Court to interfere with the order of transfer is limited to cases where it is satisfied that statutory provision was violated or the transfer was made mala fide and that a case of mala fide had not been made out by the pleadings of the Petitioner in the present case and dismissed the Civil Rule by the impugned judgment dated 7.6.95.

Mr. N.M. Lahiri, learned Counsel for the Appellant, urged that on the date of suspension the Appellant was posted as A.D.C., Nagaon and accordingly when this Court quashed the order of suspension dated 21.2.95 in Civil Rule No. 823/95, the Appellant was entitled to continue as A.D.C, Nagaon. We are unable to accept the aforesaid submission of Mr. Lahiri. In the case of Union of India and Others Vs. S.L. Abbas, , on a reading of FR 11 and 15 which was applicable to Government servants working under the Union of India, the Supreme Court held that the order of transfer is an incident of Government service and as to who should be transferred and where is a matter for the proper authority to decide. We find similar provisions made in Fundamental Rules made by the Governor of Assam u/s 241(2)(b) of the Government of India Act, 1935 which are in force and are applicable to Government servants working under Government of Assam. FR 11 of the said Fundamental Rules applicable to Government servants working under the State Government of Assam, provides that the whole time of a Government servant is at the disposal of the Government and he may be employed in any manner required by proper authority and FR 15 of the said Fundamental Rules provides that the State Government may transfer a Government servant from one post, to Anr. . Since the Appellant was a Government servant under the State Government of Assam, under the aforesaid FR 11 and 15, he could be employed in any manner required by the proper authority and he was liable to be transferred from one post to Anr. . Thus, assuming that the Appellant stood reinstated in his post as A.D.C., Nagaon when the order of suspension was quashed on 3.5.95 by this Court, it was fully within the power of the appropriate authority to post him as A.D.C., Kokrajhar on his reinstatement in his service by the impugned order dated 3.6.95.

Mr. Lahiri however assailed the impugned order dated 3.6.95 also on the ground that the transfer of the Appellant from Nagaon to Kokrajhar was vitiated by mala fides. He argued that the Appellant had been placed under suspension for no fault of his inasmuch as the purchase of tarpaulins had been made with the approval of the Chairman, DRDA, Golaghat and since me Appellant moved this Court in Civil Rule No. 823/95 against the order of suspension and this Court quashed the order of suspension the authorities bore a grudge against the Appellant and instead of allowing him to resume his duties as A.D.C. at Nagaon where he was posted before suspension transferred him to Kokrajhar. Mr. Lahiri vehemently contended that the aforesaid background of facts pleaded in the writ petition are sufficient to establish mala fides on the part of the authorities in transferring the Appellant from Nagaon to Kokrajhar. Mr. Lahiri relied on the observation of K. Ramaswamy, J in paragraph 50 of his judgment in the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, to the effect that malafide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. Mr. Lahiri also relied on the decisions of the Supreme Court in the cases of M. Sankaranarayanan, IAS Vs. State of Karnataka and others, and Rajendra Roy Vs. Union of India (UOI) and Another, for the proposition that-it may not always be possible to demonstrate malice in fact with full elaborate particulars and it may be permissible in appropriate cases to draw reasonable inference of mala fides from antecedent facts pleaded and established before the Court.

The allegations of mald fides have been denied by Shri Dibakar Saikia, Joint Secretary to the Government of Assam, Department of Personnel (A) Assam, in the affidavit in opposition filed in the writ appeal on 6.7.95 on behalf of Respondents No. 1 to 3 and it has been stated in paragraph 6 of the said affidavit in opposition that considering requirement of service of more officers for maintenace of law and order at Kokrajhar, the Appellant was posted as A.D.C. Kokrajhar in the public interest. In support of the said statements in the affidavit in opposition filed on behalf of the Respondent Nos. 1 to 3, Mr. B. Banerjee, Govt. Advocate, Assam, also produced before us the records which indicates that the Appellant was posted as A.D.C. Kokrajhar in place of Shri Jiten Borgiary, who was transferred from the said post.

We have perused the authorities cited by Mr. Lahiri. Although in paragraph 50 of his judgment in the case of State of Bihar v. P.P. Sharma (supra) Ramaswamy, J. held that mala fide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose, in paragraph 51 of his judgment he has observed that mere assertion or vague or bald statement is not sufficient to establish mala fide and that mala fide must be demonstrated cither by admitted or proved facts and circumstances obtainable in a given case, Again, in the cases of M. Shankaranarayan and Rajendra Roy (supra) relied on by Mr. Lahiri, the Apex Court clarified that even if it is possible in appropriate cases to draw a reasonable inference of mala fide from the pleadings and antecedent facts and circumstances established before the Court, such inference must be based on a factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the present case, although it has been pleaded by the Appellant that the transfer and posting from Nagaon to Kokrajhar was preceded by established facts such as suspension of the Appellant, his challenge to the order of suspension before this Court as well as quashing of the order of suspension by this Court and his reinstatement in service pursuant to the orders passed by this Court, from these antecedent facts alone it is not possible for us to reasonably infer that the transfer and posting of the Appellant at Kokrajhar was motivated by mala fide on the part of the authorities, particularly when the records produced before us revealed that the Appellant has been posted as A.D.C, Kokrajhar in place of Shri Jiten Borgiari who has been transferred from the said post and in the affidavit-in-opposition sworn by the Joint Secretary of the Department of Personnel (A) of the Govt, of Assam, it had been staled on behalf of the Respondent Nos. 1 to 3 that considering the requirement of some officers for maintainance of law and order situation at Kokrajhar, the Appellant was posted as A.D.C Kokrajhar in the public interest and in the exigencies of public service. From all the materials placed before us, we are of the opinion that the insinuations made by the Appellant in his pleadings are without any factual matrix and are in the realm of conjectures and surmises, and do not establish mala fides on the part of the authorities in posting the Appellant as ADC at Kokrajhar instead of Nagaon.

In the result, therefore, we do not propose to interfere with the impugned order dated 3.6.95 of the State Government in the Personnel Department, posting the Appellant as A.D.C, Kokrajhar as well as the impugned judgment dated 7.6.95 in Civil Rule No. 2335/95 and accordingly dismiss the appeal. But considering the facts and circumstances of the case, the parties shall bear their own costs.