Rajasthan High Court - Jaipur
Atul Kumar vs State Of Raj And Ors on 12 September, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 4100 / 2017
Atul Kumar Son of Shri Jaiveer Singh, Aged About 41 Years, H-27,
Buddhsinghpura Yojana, Sanganer, Jaipur
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary Home, Govt. of
Rajasthan, Government Secretariat, Jaipur
2. Inspector General of Police Cum Director Police Tele
Communication, Rajasthan, Jaipur
3. Dy. Superintendent of Police, Police Tele Communication, Jaipur
City, Jaipur
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Ashok Bansal For Respondent(s) : Dr. A.S. Khangarot, Addl.G.C. _____________________________________________________ HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 12/09/2017 Aggrieved by the impugned transfer order 15 th March, 2017;
the petitioner has instituted the instant writ application assailing it to be an outcome of malice in law, on account of institution of writ proceedings by the petitioner.
2. Mr. Ashok Bansal, learned counsel appearing for the petitioner, reiterating the pleaded facts and grounds of the writ application, submits that the impugned order of transfer suffers with the vice of malice in law, as can be gathered from the attendant facts for the petitioner instituted SBCWP Number 263 of 2017: Manish Mathur & Ors. Versus State of Rajasthan & Ors., with reference to claim of the petitioner along with others therein, (2 of 27) [CW-4100/2017] praying for recruitment to the posts of Inspector, 100% by way of promotion stead of 75% by way of promotion and 25% by way of direct recruitment as per the statutory rules. Learned counsel further submits that the matter is under active consideration of the State-respondents in that regard and there is a proposal for amendment in the recruitment rules. However, the State-
respondents proceeded with the process of recruitment on the basis of statutory rules in force, and therefore, the petitioner instituted the writ application aforesaid whereupon notices were issued by this Court on 3rd March, 2017. So soon, the State-
respondents were served with the notices; the impugned order of transfer dated 5th March, 2017, has been made. Thus, malice in law is apparent on the face of record.
3. In response to the notice of the writ application, the State-
respondents have filed their counter affidavit specifically denying the allegations of malice in law and/or fact. Dr. A.S. Khangarot, Addl.G.C., appearing for the State-respondents urged that the writ application number 263 of 2017, has been instituted by the petitioner along with four others, namely, Manish Mathur, Kedar Nath Sharma, Sudhir Choudhary and Harchand Singh Palsania;
hence, the presumptions and assumptions of malice in law, raised by the petitioner while assailing the impugned order of transfer;
are contrary to the materials available on record so also the factual matrix obtaining.
4. Learned counsel would further submit that the transfer of the petitioner has been made in administrative exigencies. Moreover, the petitioner has failed to plead and lay factual foundation so as (3 of 27) [CW-4100/2017] to sustain the allegations of malice in law.
5. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record so also gave my thoughtful consideration to the submissions made at Bar.
6. A glance of the impugned order dated 5th March, 2017, would reveal that the petitioner has been transferred by the competent authority on administrative grounds with immediate effect. The fact that SBCWP Number 263 of 2017, has been instituted by the petitioner along with four others, is also not in dispute.
7. By now, it is well settled law that who should be transferred where is the exclusive prerogative of the employer. In the case of E.P. Royappa (supra), the Supreme Court while dealing with the issue of transfer observed thus:
"86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Article 311 but not to Articles 14 and 16. We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and is mala fide exercise of power. What was the operative reason for such transfer; was it the exigencies of public (4 of 27) [CW-4100/2017] administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for colateral reasons ? These are the questions which call for our Consideration.
87. Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief Secretary is a highly sensitive post. It is a post of great confidence-a lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of-course that does not involve violation of any of his legal or Constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants.
(5 of 27) [CW-4100/2017]
88. Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. It is always a difficult problem for the Government to find suitable' officers for such specialised posts. There are not ordinarily many officers who answer the requirements of such specialised posts and the choice with the Government is very limited and this choice becomes all the more difficult, because some of these posts, though important and having onerous responsibilities, do not carry wide executive powers and officers may not, therefore, generally be willing to be transferred to those posts. The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new posts does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Articles 14 and 16.
89. Now, here the post of Chief Secretary was admittedly a selection post and after careful examination of the merits of the senior most eleven officers of the Tamil Nadu Cadre of the Indian Administrative Service, the second respondent selected the petitioner for the post of Chief Secretary. The petitioner worked as Chief Secretary from 14th November, 1969 up to 6th April, 1971 and evidently during this period he acquitted himself creditably. It (6 of 27) [CW-4100/2017] was not the case of either of the respondents that the petitioner was not found equal to the task or that his work was not satisfactory. In fact the affidavit in reply filed on behalf of the first respondent clearly indicates that the petitioner discharged the duties of his office efficiently and to the satisfaction of every one concerned. Yet the petitioner was transferred first to the post of Deputy Chairman and then to the post of Officer on Special Duty and in his place Sabanayagam, who was admittedly junior to him, was not only promoted but also confirmed. The result of confirmation of Sabanayagam as Chief Secretary was that the petitioner, though senior and proved competent, was permanently excluded from the post of Chief Secretary. This clearly shows, contended the petitioner, that his transfer first to the post of Deputy Chairman and then to the post of Officer on Special Duty was not on account of administrative reasons but solely to displace him from the key post of Chief Secretary. That perhaps might have been legally and Constitutionally unobjectionable, if the post of Deputy Chairman and Officer on Special Duty were of the same status and responsibility as the post of Chief Secretary, but the argument of the petitioner was that neither of these two posts could be regarded as of equal status and responsibility as the post of Chief Secretary because the post of Chief Secretary is always a unique and unrivalled post in the State administration. The transfer of the petitioner from the post of Chief Secretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation of Sabanayagam in the post of Chief Secretary was, therefore, clearly arbitrary and violative of Articles 14 and 16. This contention, plausible though it may seem, cannot be accepted by us, because there is no (7 of 27) [CW-4100/2017] adequate material placed before us to sustain it. The premise on which this contention is founded is that the posts of Deputy Chairman and Officer on Special Duty were not of the same status and responsibility as the post of Chief Secretary, but we cannot say on the material on record that the validity of the premise has been established by the petitioner. So far as the post of Deputy Chairman is concerned, the petitioner himself accepted that post as being of the same status and responsibility as the post of Chief Secretary and did not raise any objection against it and we need not, therefore, say anything more about it. The only question is as to the post of Officer on Special Duty. We think that this post has not been satisfactorily established by the petitioner to be inferior in status and responsibility to the post of Chief Secretary. This of-course does not mean, and we are not prepared to go as far as the learned Chief Justice in asserting positively that that post was equal in status and responsibility to the post of Chief Secretary. The fact that sales tax accounts for a very large segment of the revenues of the State and it runs into about 120 crores of rupees does not necessarily make the post of Officer on Special Duty equal in status and responsibility to that of the Chief Secretary. What has to be seen for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Merely giving the salary of one post to the other does not make for equivalence. We are, therefore, not prepared to accept the thesis that the post of Officer on Special duty was equal in status and responsibility to the post of Chief Secretary as claimed by the respondents. We entertain serious doubts about it. But equally it is not possible for us to hold it established on the material on record that this post was inferior in status and responsibility to the post of Chief Secretary, (8 of 27) [CW-4100/2017] though prima facie it does appear to be so. We cannot, therefore, say that the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred from the post of Chief Secretary and in his place Sabanayagam, his junior, was promoted and confirmed. The challenge based on Articles 14 and 16 must therefore fail.
90. We may now turn to the ground of challenge based on mala fide exercise of power. The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconvenient and uncompromising acts and notings and contended that the second respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true, constituted gross acts of mal-administration and the charge leveled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of mal-administration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.
91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second (9 of 27) [CW-4100/2017] respondent. It is not within our province to embark on a far flung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trial. The only question before us is whether the action taken by the respondents includes any component of mala fides whether hostility and mains animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.
92. Secondly, we must not also overlook that the burden of establishing mala fides in very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extra-ordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the (10 of 27) [CW-4100/2017] greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may land themselves to misconstruction and suspicion as to the bona fide of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up-these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand point that we must assess that merits of the allegations of mala fides made by the petitioner against the second respondent.
93. Now extensive arguments were addressed before us by counsel on both sides and we were taken through a mass of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent, heavy as it is, has been discharged by the petitioner. The allegations of mala fides have been dealt with fully in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those allegations once again in this judgment, as we are substantially in agreement (11 of 27) [CW-4100/2017] with what the learned Chief Justice has said. But we cannot help mentioning that there are certain disturbing features which cause us anxiety. We may take by way of example the imputation in regard to the Cooum River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Cooum Improvement Project as he apprehended that there were certain mal-practices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated 25th February, 1970 shows, informed the second respondent that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of credibility since the head of the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government order in that behalf should therefore be obtained and communicated to him. The petitioner made an endorsement on this letter on the very next day with a remark that the Public (Secret/Confidential) Department should deal with it immediately. The Public (Secret/Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to make a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on 3rd March, 1970. It appears, however, that this note remained unattended until the middle of September 1970. On (12 of 27) [CW-4100/2017] 12th September, 1970 the Minister for Works made an endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was approved by the second respondent on 20th September, 1970. The file containing the note together with the endorsements of the Minister for works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum to be addressed by the petitioner to the Director of Vigilance. It is common ground that no memorandum in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry, need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order cancelling the inquiry. That is a matter of controversy between the parties and as pointed out above it does not fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Cooum Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, if it was with him. The petitioner immediately replied to this letter on 8th August, 1971 pointing out that he distinctly remembered that the second respondent had subsequently ordered that no inquiry need be made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had (13 of 27) [CW-4100/2017] subsequently ordered that no inquiry need be made, Sabanayagam did not write back challenging the correctness of this statement. The file pertaining to this matter was all throughout in the possession of the Government and even after the petitioner pointed out that it was not with him, curiously enough, it could not be traced until the filing of the petition. In fact, the absence of the file could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in up- holding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well.
94. We accordingly dismiss the petition with no order as to costs."
8. In the case of Rajendra Singh & Ors. (supra), the Supreme Court held thus:
"8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, SCC p.406, para
7).
9. The courts are always reluctant in interfering with (14 of 27) [CW-4100/2017] the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this Court held: (SCC p. 661, para 4) "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights.
Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
10. In N.K. Singh v. Union of India this Court reiterated that: ( SCC p. 103, para 6) "6.....the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.
(15 of 27) [CW-4100/2017]
11. Insofar as the transfer of Writ Petitioner from Ghaziabad-IV to Hapur-II is concerned, the High Court found that the transfer order has not affected his service conditions and pay and other benefits attached to the post which was held by him. As a matter of fact, the High Court did not find any flaw in the transfer of the Writ Petitioner from Ghaziabad-IV to Hapur-II.
12. As regards Respondent No. 5, the High Court considered the matter thus:
"...in our view, it is evident that the Respondent No. 5 also cannot be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the Respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to mala fide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur.
It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of mala fide. In view of admission on the part of the Respondent No. 1 in his Counter Affidavit that (16 of 27) [CW-4100/2017] the Respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the Respondent No. 5 to Ghaziabad cannot be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.
13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as Sub-Registrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in (17 of 27) [CW-4100/2017] comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law.
15. The only question required to be seen was whether transfer of Respondent No. 5 was actuated with mala fides or otherwise in violation of statutory rules. The transfer of Respondent No. 5 was not found to suffer from any of these vices. The High Court went into the competence and suitability of Respondent No. 5 for such posting. It is here that the High Court fell into a grave error. As a matter of fact, the impugned order of the High Court casts stigma in the service of Respondent No. 5 which may also act prejudicial to his interest in the pending appeal against the adverse remarks."
9. In the case of Tushar D. Bhatt (supra), the Supreme Court while dealing with the issue of transfer observed thus:
"16. 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.
17. In the instant case, in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellant's transfer order cannot be termed as mala fide. The appellant was not justified in defying the transfer order and to level allegations against his superiors and remaining unauthorisedly absent from official duties from 11.10.1999 to 27.4.2000 i.e. more than six months. In the interest of discipline of any institution or organization such an approach and attitude of the employees cannot be countenanced.
18. In Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani this Court had an (18 of 27) [CW-4100/2017] occasion to examine the case of almost similar nature. This Court observed as under: ( SCC p. 607, para 4) "4....Transfer from one place to another is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.
19. In Mithilesh Singh v. Union of India and Ors. the settled legal position has been reiterated. The court held that absence from duty without proper intimation is indicated to be a grave offence warranting removal from service.
20. In the instant case, the matter has been thoroughly examined by the learned Single Judge and the Division Bench of the High Court and we have also examined the matter in great detail. On consideration (19 of 27) [CW-4100/2017] of the totality of the facts and circumstances of this case, no interference is called for in the impugned judgment. The appeal being devoid of any merit is accordingly dismissed leaving the parties to bear their costs."
10. In the case of Government of Andhra Pradesh (supra), the Supreme Court held thus:
"6. The Court seems to have been completely taken in by the ipse dixit of the respondent and his tall claims about his own ability and virtually allowed him to choose his own place of posting. The judgment at its beginning recounts the respondent's qualifications that include two Master's degrees, one in Sanskrit and the other in Archaeology, a B. Ed. degree in Sanskrit and the degree of Sahitya Shiromani from Sri Venkateswara University. The judgment then proceeds to observe as follows:
The petitioner as it appears from the pleadings is a highly qualified man. The confidence with which he made assertion in the affidavit dated 13.3.2006 to the effect that `if any other employee has my skill, knowledge, expertise and experience I forego my job' makes this Court examine this matter in depth and not treat the impugned order as a mere order of transfer in the course of administration.
It further observes as follows:
The petitioner asserted in his affidavit dated 13.3.2006 that he has expertise in deciphering early Rock and Stone and Copper Plates inscriptions in Brahmi, early Telugu and Kannada, Nagari, Tamil and Tamil Grandha. He further asserted that other than the petitioner that no other employee in the entire (20 of 27) [CW-4100/2017] Archaeology Department with the expertise, knowledge or experience in these matter and that his services are required more at the head office.
The Court then purports to remind itself that transfer is an incidence of service and is not to be lightly interfered with. It proceeds to elaborate that this judicial policy is based on two reasons, one the continuance of an employee of the State Government at one particular place for a long time is likely to create undesirable consequences like creation of vested interests and misuse of the power that comes with the employment under the State and the other being the exigencies of the administration requiring the service of a particular person at a particular place. It then proceeds to explain away that the first reason, that is, the undesirability of stay at anyone place for a long time should not apply to the case of the respondent because in Archaeology, in any event one worked in ancient times and dealt with `the dry bones of history'.
7. The Court then went on to hold that the respondent's transfer was also not made in administrative exigencies. For arriving at this finding the Court refers to the catalogues of manuscripts, in different languages that are kept in Hyderabad and in Kakinada and accepts the petitioner's assertion that with his knowledge and ability he is most suited to work at the head office in Hyderabad than in any other place in the State. The Court refers to the respondent's assertion in his affidavit that in the entire Archaeology Department there is no other employee equaling him in expertise, knowledge and experience in these matters and that his services are required more at the head office and points out that in the (21 of 27) [CW-4100/2017] counter affidavit filed by the Director there was no express contradiction of the assertion. It is observed as follows:
She is conspicuously silent about the nature of the work that is required to be carried at the State Museum at Hyderabad and also whether there is any other person who is qualified to carry on the said work.
8. Lastly, the Court finds that in the original proposal for transfer made by the Director the respondent's place of posting was shown as Kurnool. The Court observes that there was no explanation why the respondent was finally transferred to Kakinada in place of Kurnool. On these materials, the Court came to the conclusion that the transfer of the respondent was clearly not bona fide, to say the least.
9. We are surprised to see the High Court castigating the respondent's transfer order as lacking in bona fide on such flimsy and fanciful pleas advanced by the respondent. We are more than satisfied that the High Court's finding regarding lack of bona fide in the matter on the part of the State Government is completely unfounded and untenable. The legal position regarding interference by Courts in the matter of transfer is too well established to be repeated here. The respondent's transfer neither suffers from violation of any statutory rules nor can it be described as mala fide by any stretch of imagination. We are, accordingly, unable to sustain the High Court's order. In the result this appeal is allowed, the order coming under challenge is set aside and the writ petition filed by the respondent in the High Court is dismissed.
10. At the conclusion of the hearing of the case, counsel for the respondent stated that the Government (22 of 27) [CW-4100/2017] had reconsidered the matter. It was willing to bring back the respondent to Hyderabad and an order to that effect was likely to be issued. We have got nothing to say in the matter."
11. Further, in the case of Mukesh Kumar Agrawal (supra), the Supreme Court dealing with the issue of malice observed thus:
"9. It is true that ordinarily a writ petition cannot be dismissed summarily when the allegations made in the writ petition inter alia make out a case that the order and/or action taken therein was wholly without jurisdiction and/or in violation of the principles of natural justice as has been held by this Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. : (1998) 8 SCC 1, but, in our considered opinion, in the present case no such case has been made out.
10. There cannot be any doubt or dispute whatsoever that the authorities of the Weights and Measures Department as also the Food Cell of Office of Additional Commissioner, Food and Civil Supplies, U.P. were entitled to inspect the business premises of the appellant and carry out searches. Indisputably again, possession of higher quantity of diesel oil than that has been shown in the stock book would amount to contravention of the provisions of the licence and/or licensing Order. The appellant in invoking the writ jurisdiction of the High Court Order raised contentions involving disputed questions of fact. Ordinarily, the disputed questions of fact are not determined in a writ petition. We would, however, hasten to add that the same would not mean that the High Court cannot exercise its discretionary writ jurisdiction for determination of disputed questions of fact or only because some dispute had been raised in the writ (23 of 27) [CW-4100/2017] proceedings itself the same would deter the High Court from exercising its jurisdiction. The appellant has raised pure questions of fact for determination in the writ proceedings in respect whereof the Licensing Authority itself was required to go into the materials brought on record by both the parties. It is neither denied nor disputed that the order passed by the Licensing Authority cancelling the licence of a dealer is an appellable one. The Appellate Authority is entitled to go into the questions of both law and fact. The High Court, therefore, in our opinion, cannot be said to have committed any error in refusing to entertain the writ petition. It is, thus, not a case where the ratio laid in Whirlpool (supra) is applicable.
11. There cannot furthermore be any doubt or dispute that the court can go into the question where malice of fact is alleged. (See Pratap Singh v. State of Punjab: AIR 1964 SC 72)
12. The High court, however, upon considering the averments made in the writ petition, as noticed hereinbefore, found that the allegations of malice made therein are vague in character. The appellant, thus, was entitled to raise all his contentions including the aforementioned contention before the authorities under the 1981 Order.
We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved. [See Swaran Singh Chand v. Punjab State Electricity Board: 2009 (7) SCALE 622] (24 of 27) [CW-4100/2017]
13. For the aforementioned reasons, the appeal is dismissed with costs. Counsel's fee assessed at Rs. 10,000/-."
12. In the case of Swaran Singh Chand (supra), the Apex Court of the land while dealing with the issue of "malice in law" observed thus:
"17. The learned Counsel appearing on behalf of the respondent would contend that in this case malice has neither been alleged nor been proved. In support of his contention reliance has been placed on Purushottam Kumar Jha v. State of Jharkhand and Ors. MANU/SC/8114/2006 :(2006) 9 SCC 458 wherein Thakker, J. speaking for the Bench, stated the law, thus:
23. It is well settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material particulars, the court is not expected to make "fishing" inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is "very heavy". Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be "made than made out"
and hence it is necessary for the courts to examine it with extreme care, caution and circumspection. It has been rightly described as "the last refuge of a losing litigant". (Vide (25 of 27) [CW-4100/2017] Gulam Mustafa v. State of Maharashtra; Ajit Kumar Nag v. GM (PJ), Indian Oil Corpn. Ltd.)".
13. In the case of Airports Authority of India (supra), the Supreme Court further dealing with the transfer matter observed thus:
"4. Ordinarily, we would not have entertained a matter arising out of an ad-interim order but since it is founded on a plea which apparently is afterthought, we are constrained to interfere with the matter. In prima facie view of the Division Bench, the order of transfer suffers from strong mala-fides but the fact of the matter is that in the entire petition, there is not even whisper of mala-fides against the Authority. The writ petition was filed by the Respondent No. 1 on June 1, 2009 which contains no allegation that the transfer order has been issued maliciously. For the first time in a supplementary affidavit filed on July 3, 2009, the allegations of mala-fides have been made by the Respondent No. 1. Prima facie, we have no doubt that the allegations of mala-fides are afterthought. Moreover, except the bald statement in the supplementary affidavit, there is no convincing and cogent material placed by the Respondent No. 1 in proof thereof.
5. In the case of State of U.P. v. Gobardhan Lal:
(2004) 11 SCC 402, while dealing with a matter of transfer, this Court observed that allegations of mala-
fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is (26 of 27) [CW-4100/2017] heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials. In the present case, as noticed above, at the threshold, no allegations of mala-fides have been pleaded in the writ petition. It is only by way of a supplementary affidavit that allegations of mala-fides have been put forth by the Respondent No. 1 but even such allegations are not supported by any material whatsoever. In a matter such as the present one where plea of mala-fides is not made in the writ petition and the assertion of mala-fides is made for the first time in a supplementary affidavit which too is not supported by any convincing and cogent material, the plea of mala-fides hardly deserved acceptance, prima facie, justifying stay of operation of a transfer order. The High Court has referred to a decision of this Court in the case of Arvind Dattatraya Dhande v. State of Maharashtra and Ors.: (1997) 6 SCC 169 but in what we have said above, that decision cannot be applied to the facts of the present case. In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and 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. In the present case, High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning (27 of 27) [CW-4100/2017] of the appellant.
6. Appeal is, accordingly, allowed. The impugned order dated July 3, 2009 is set aside. No order as to costs."
12. For the reasons and discussions aforesaid, the plea of the petitioner while assailing the impugned order of transfer on the ground of malice in law, cannot be sustained for no factual foundation has been laid by the petitioner to sustain the same and to draw an inference to that effect.
13. In the result, the writ petition fails and is hereby rejected.
14. Interim order granted by this Court dated 25 th March, 2017, stands vacated.
(VEERENDR SINGH SIRADHANA)J. SS/98