Virendra Kumar Singh vs State of M.P. and Others

Sheel Nagu, J.—Learned counsel for the rival parties are heard on the question of admission.

The appellant has preferred this intra court appeal under Section 2(1) of the Madhya Pradesh Uchch Nyalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the order dt. 19.12.2014 passed by the Single Bench of this court in W.P. No.1530/2014, whereby challenge to the order of transfer dated 03.03.2014 from Gwalior to Rewa has been repelled.

In this intra court appeal learned counsel for the appellant has raised singular ground that the Writ Court while dismissing the petition in question failed to consider and decide the ground of malafide raised in respect of challenge to order of transfer, in its right perspective and in accordance with law.

The factual matrix attending the case are that the appellant being a member of M.P. Administrative Services holding the post of Joint Collector, Tikamgarh was transferred to Gwalior on 14.07.2010. Pursuant thereto the appellant has joined Gwalior on 26.07.2010. Thereafter, the appellant was posted as SDM, Dabra within the District of Gwalior on 29.07.2010 whereafter by another order passed on 12.07.2011, the appellant was posted back to Gwalior as SDM. Thereafter, by order dated 05.09.2012 (Annexure P-4), the services of the appellant were transferred to Kisan Kalyan Awam Krishi Department as Deputy Director Mandi, Gwalior and thereafter the impugned transfer order dated 03.03.2014 (vide Annexure P-1) was passed by the Managing Director of respondent-Board transferring the appellant from Gwalior to Rewa and by the same order one Shri S.K. Kumhre respondent No. 3 who was posted in the office of respondent-Board at Rewa was transferred in the place of appellant at Gwalior.

Before the writ court three grounds were raised by the appellant /petitioner in support of challenge to the impugned. order of transfer.

5.1 The first being the ground that the impugned order of transfer was vitiated by the vice of frequent transfer which was negatived by the Writ Court on the undisputed fact that the appellant /petitioner had though been transferred thrice in the last about four years, but during all these transfers appellant continued to be posted at Gwalior City barring an eleven (11) months stint at Dabra, District Gwalior. In this view of the matter, no fault can be found in regard to findings recorded by the Writ Court while rejecting the ground of frequent transfers.

5.2 The second ground raised was that the transfer order was issued by an incompetent authority. This ground was rightly negatived by the writ Court as it was found from rule position that the Managing Director of the respondents Board who had issued impugned transfer order was competent to do so on the strength of M.P. Rajya Mandi Board Sewa Viniyam, 1998 r/w section 42-D(4) of M.P. Krishi Upaj Mandi Adhiniyam, 1972. This findings of the Managing Director to issue impugned order also cannot be found fault with as the statutory provision (supra) vest the Managing Director with power to transfer employee or officer of the Board at any District within the State of M.P.

5.3 The third ground was regarding malafide. This ground has been negatived by the Writ Court after drawing inspiration from the law laid down by the Apex Court in the case of State of U.P. and Others Vs. Gobardhan Lal, and Airports Authority of India Vs. Rajeev Ratan Pandey and Others, to conclude that since the ground of malafide was not part of the original pleadings in the writ petition and was raised subsequently by way of amendment, the same falls within the category of "after thought". The Writ Court was thus of the opinion that the ground of malafide having been raised during pendency of the petition by way of amendment demonstrate that the appellant / petitioner raised such ground merely to strengthen the petition which otherwise was wanting in legal strength. The Writ Court has also gone into the ground of malafide on merit and has declined interference inter-alia on the ground of non- impleadment of person against whom malafide was alleged.

Learned counsel for the appellant/petitioner has also raised the issue of Managing Director of the respondent-Board acting on the dictate of Chairman of the respondent-Board while issuing impugned order of transfer.

6.1. The note sheets written culminated into the decision to pass the impugned order of transfer are perused.

6.2. True it is that the proposal was moved by the Assistant Director (personnel) of the Board for transfer of the respondent No. 4 from Rewa to Gwalior and the petitioner to be posted from Gwalior to elsewhere which was followed by note sheet signed by the Chairman of the Board approving the transfer of the respondent No. 4 from Rewa to Gwalior and transferring the petitioner to Rewa and as a necessary consequence the Managing Director of the respondent-Board has issued the order of transfer.

6.3. In this background, it is submitted that the Managing Director of the respondent-Board, who is vested with the power of transferring any employee or officer of the Board, has not acted independently, but has toed the line of Chairman of the Board who is stated to be a political functionary.

6.4. In this respect, it is seen from the record that the note sheet ostensibly discloses that the decision was taken at the level of Chairman of the Board, but the fact remains that ultimately the order of transfer was passed by the Managing Director of the respondent-Board who is vested with over all control and supervision of employees and officers of the Board with further authority of transferring any member of the respondent-Board at any place within the State of M.P. While exercising this power of transfer the Managing Director of the respondent-Board acted as an administrative authority and, therefore, was not exigible to the trappings which are otherwise applicable to a quasi judicial authority.

A challenge to transfer passed on the ground of malice to the extent of establishing that the competent authority has passed an order of transfer on the dictate of some other higher authority, can succeed only when the grounds of malafide raised against any particular person are proved to the hilt, which is not the case herein. The appellant/petitioner has failed to establish that the order of transfer was politically motivated.

This Court is of the considered view that the writ court has not committed any error of law and has passed the impugned order on cogent reason on the anvil of settled law in the field of challenge to an order of transfer.

The Writ Court has neither committed any illegality nor material impropriety/irregularity which may indicate that the equitable and discretionary power vested with the Writ Court under Article 226 of Constitution of India has not been rightly exercised.

This Court does not see any reason to interfere with the impugned order passed by the Writ Court which is accordingly upheld and the present writ appeal stands dismissed. No order as to cost.