Gujarat High Court
District Superintendent Of Police, ... vs Chhatrasinh Chandrasinh Vadajiya on 8 April, 1986
Equivalent citations: (1986)2GLR1210
JUDGMENT A.S. Qureshi, J.
1. The appellants herein have challenged the order dated 7-1-1986 passed by the learned Civil Judge (S.D.) Baroda, granting ad-interim injunction pending the disposal of the suit or till the plaintiff completes three years at Kareli Police Station, whichever is earlier. The learned trial Judge in his long order has considered various points which were urged before him while granting the interim injunction as prayed for.
2. Mr. S.R. Divetia, the learned A.G.P. has urged that the learned trial Judge was not justified in granting the interim injunction to the present respondent, as according to him, the transfer order was made on the ground of exigency of service or for administrative reasons. According to Mr. Divetia the authority concerned alone has to satisfy itself that such an exigency or administrative reason exists. He submits that it is not open to the court to scrutinise and examine whether such an exigency or such a reason does or does not exist. Mr. Divetia has relied on the judgment of the Supreme Court reported in A.I.R. 1981 S.C. 1577, wherein it is held:
We are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to the exigency of service or due to administrative reason. The courts cannot interfere with such matters.
Mr. Divetia has also relied on a Single Judge judgment of this Court (Coram: S.L. Talati, J.) reported in 1984 G.L.H. 581, wherein it is held "Normally it is for the administration to decide as to who is required to be transferred at what place, whether an officer should have been transferred is a matter which cannot be decided by a court as it cannot decide regarding the administrative exigencies of a Government Department". Mr. Divetia has also relied on a Division Bench judgment of this Court (Coram: P.S. Poti, C.J. and G.T. Nanavati, J.) reported in 1984 G.L.H. 589-590, wherein it is observed:
It is surprising that the Subordinate Civil Courts take matters of transfers lightly and quite often interfere making a casual approach in passing orders staying such transfers. Governmental administration calls for transfers from time to time and it is not for the court to sit in judgment over every transfer. The Governmental machinery must be allowed play at the joints. It is not for this Court exercising jurisdiction under Article 226 of the Constitution, much less for the subordinate courts in civil suits to weigh in golden scales the propriety or otherwise of a transfer as that must necessarily be left to the authority passing the order of transfer.
Mr. Divetia has also relied on a Single Judge judgment of this Court (Coram: A.P. Ravani, J.) reported in XXVI-(1985) G.L.R. 509-511 wherein it is observed:
There may be cases where it may be difficult to show on record as to how the transfer of a particular employee was necessitated. Many a times transfers are required to be made by the executive authorities on account of the fact that there may be allegations of corruption and malpractices. Just as the allegations of mala fides are difficult to be proved, similarly, the allegations of corruption and malpractices are almost impossible to be proved. But at the same time, in the interest of clean public administration and to see that the public at large is relieved from the oppression perpetrated by such type of employees, they are required to be removed to other places and their connections are at least temporarily snapped. Therefore, simply because some grounds of mala fides are made out here or there, or some breach of certain guidelines, or of certain rules is pointed out, it should not be held that there is a case for staying the order of transfer at the stage of initiation of proceedings.
On the aforesaid decision, Mr. Divetia has urged that departmentally, there are good administrative reasons or exigency of service for the impugned transfer of the respondent P.S. i. from Kareli Police Station to Harijan Cell, Baroda (Rural). Mr. Divetia has also urged that the impugned transfer is in the same district of Baroda. According to him there is absolutely no mala fide in making such a transfer.
3. Mr. Y.N. Oza, the learned Counsel for the respondent has urged that the interim relief granted by the learned trial Judge is fully justified in the facts and circumstances of the case. According to him, the impugned transfer is not on account of any exigency or for any administrative reason. In his view, the transfer is wholly mala fide. The transfer, according to him, is for the ulterior purpose to accommodate another P.S.I., J.D. Katara at the instance of Mohansinh Rathva, who is M.P. for Pavi-Jetpur. According to Mr. Oza, he has made this specific allegation of mala fide which is not denied by the present appellants in their written statement filed before the trial court. He therefore submits that the specific allegation being not denied, should be accepted as correct at least for the purpose of prima facie case and on that basis the respondent is entitled to the interim relief, which is granted to him by the trial court. Mr. Oza has further argued that the fact that the respondent was transferred four times within a period of two years, is prima facie sufficient to infer mala fides. Another argument advanced by Mr. Oza is that the impugned transfer is in contravention of the rules and guidelines laid down by the Government itself in respect of the transfer of its employees. According to him the Government guidelines show that an officer would not ordinarily be transferred from a place for a period of three years and normally such transfers would take place in the months of April or May, but not during the middle of the academic year because such transfers would adversely affect the education of the children. He therefore urged that the impugned order of transfer is untenable being in contravention of the Government's own rules and guidelines.
4. It is a well settled principle of law that ordinarily the court would not interfere in matters of transfers very lightly because it affects the administration of the State or a public body adversely. But the court would undoubtedly interfere where there is a clear case of mala fide or contravention of some Rules, Regulations or guidelines laid down by the State. In this case, the transfer of the officer concerned is stated to be for the administrative reason and in the exigency of service. As laid down by the Supreme Court in A.I.R. 1981 S.C. 1577 (supra) it is not open to the court to examine the ground of exigency of service or administrative reason. Therefore the impugned order of transfer has to be upheld unless it is shown to be mala fide or contrary to the Rules or Regulations. Mr. Oza has alleged that the impugned transfer order was with an ulterior motive to accommodate another Sub-Inspector at the instance of an M.L.A. who is named by him. At this stage, it is not possible to say that there is any substance in this allegation because there is no material before the court to arrive at such a conclusion. It will be open to the parties to lead evidence at the hearing of the suit and establish this fact. Mr. Oza has relied on the case reported in 1985 (2) S.L.J. 260 for his submission that the allegation which he has made in his application for interim relief is not denied by the appellants. Mr. Divetia has pointed out that there is a general denial of all allegations which would include the specific allegation of favouring a P.S.I. at the instance of an M.L.A. Although it would have been better if the appellants had specifically denied this allegation, but it would not be proper to hold that in absence of specific denial, the general denial should be ignored and it should be accepted as an admitted fact merely because of specific non denial. The case referred to by Mr. Oza is not applicable to the facts of this case because here there is a general denial which would also cover a specific allegation. Mr. Oza has urged that mala fides could also be inferred from the fact that the respondent was transferred earlier within a period of two years on three occasions. He therefore submits that the frequent transfers should itself be accepted as mala fide. This submission of Mr. Oza also cannot be accepted because the administrative exigency may require transfers which may appear to be frequent. The reliance placed by Mr. Oza on the rules laid down by the State that ordinarily an officer should not be transferred for a period of three years from a place and that as far as possible the transfer should not be made during the year, is also not tenable because these rules are also subject to the exigency of service and for administrative reason an employees may have to be transferred within a period of less than three years from a place and there may be a few transfers over a period of over three years.
5. Although it is true that the State must abide by its own Rules, Circulars and guidelines in respect of transfers and similar other matters but those Rules are not be taken as if they must be strictly adhered to in all circumstances. Such rules are of general application and are to be followed in the normal circumstances. In special circumstances, those rules cannot be pleaded as creating absolute right in a Government servant who can successfully challenge the transfer on the ground that the transfer is contrary to such rules or guidelines. In this case the court felt necessary to call upon the learned A.G.P. to produce the relevant file of the respondent which was produced before the court. On perusal of which, it seems that prima facie there are good and sufficient grounds for the impugned transfer. Hence, at this stage, it would not be proper for this Court to interfere with this transfer order. However, it is clarified that it is open to the parties to lead evidence at the hearing of the suit and establish facts which support their respective contentions. Any observation made herein would not be taken to have decided any question finally. At this stage, this Court is only concerned with the prima facie case and this Court has to come to a conclusion that prima facie there is no ground to interfere with the impugned order of transfer. Hence this appeal of the State will have to be allowed and the judgment and order passed by the lower court will have to be set aside.
In the result, the appeal succeeds. The impugned judgment and order of the lower court is set aside. In the circumstances of the case there shall no order as to costs.