Madhya Pradesh High Court
Dr.Saligram Chouhan vs Principal Secretary The State Of Madhya ... on 31 August, 2010
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 8585 OF 2010 (s)
Dr. Shaligram Chauhan
- V/s -
State of Madhya Pradesh & Others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Mrigendra Singh, learned counsel for the petitioner.
Shri S.S. Bisen, learned Govt. Advocate for respondent Nos .1 & 2.
Shri A.M. Trivedi, learned Senior Advocate with Shri Ashish
Trivedi, learned counsel for respondent Nos.3 & 4.
Shri Om Namdeo, learned counsel for respondent No.5.
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ORDER
(31 / 08 / 2010) Challenging the order annexure P-1 dated 15/06/2010, by which petitioner is transferred from the post of Incharge, Chief Medical and Health Officer Seoni to the post of Specialist in District Hospital Seoni, petitioner has filed this writ petition.
2. It is the case of petitioner that after transferring the petitioner, respondent No.3, Dr.Y.S. Thakur, has been transferred from Dindori to Seoni and the transfer is effected only to grant adjustment to respondent No.3 and malafidely remove the petitioner from the post of Chief Medical and Health Officer, Seoni. Interalia contending that respondent No.4 is a local M.L.A. of Lakhanadon Constituency, in District Seoni, respondent No.5 is representative of M.L.A. and as petitioner has filed complaint against respondent No.5 on the basis of 2 which certain offences has been registered against respondent No.5 and the entire exercise of transferring the petitioner is because of aforesaid interference by respondent Nos.4 & 5, petitioner has filed this writ petition.
3. It is said that petitioner was working as a Specialist in the Civil Hospital Mhow, district Indore, he was transferred to Seoni on 01/08/09 vide annexure P-2 and after joining in Seoni only in August, 2009 he is now transferred within a short period, only because of the malafides of respondent No.3, respondent No.4 & 5 as alleged hereinabove. Accordingly, contending that the transfer impugned is vitiated by malafides, petitioner has filed this writ petition.
4. Shri Mrigendra Singh, learned counsel for the petitioner by taking me through the complaint made by the petitioner against respondent No.5, as contained in annexure P-4, the news item published in newspaper and the transfer affected, tried to emphasize that it is the case where on political consideration, malafidely only to grant adjustment to respondent No.3, the transfer is ordered and, therefore, this Court should interfere in the matter.
5. Shri S.S. Bisen, learned counsel for the State refuted the aforesaid and submitted that petitioner is substantively holding the post of Surgical-Specialist and he is not a duly appointed Chief Medical and Health Officer. It is pointed out by Shri Bisen that petitioner is replaced by respondent No.3, who is a duly appointed Chief Medical and Health Officer and as petitioner is only shifted from the post of Incharge/Chief Medical and Health Officer to the District Hospital Seoni, it is stated that there is no illegality in the matter. So far as malafide attributed to the respondents No.4 & 5 and the adjustment being granted to respondent No.3 is concerned, Shri S.S. Bisen has produced the original file of transfer and points out that the aforesaid contention are 3 the apprehension of petitioner and an administrative decision is taken for posting a regular incumbent on the post of Chief Medical and Health Officer and petitioner is only shifted to another hospital in the same place, Seoni. It is the case of the State Government that the malafide alleged are not established and, therefore, administrative order does not warrant any interference.
6. Respondent No.3 and respondent Nos.4 & 5 have filed separate replies and so far as respondent No.3 is concerned the said respondent has categorically denied interference by his wife in his posting to Seoni. It is pointed out by Shri A.M. Trivedi, learned Senior Advocate appearing for respondent No.3 that he was appointed in the year 1983, he remained posted in the tribal area of district Chhatarpur from 1983 upto 1988, between 1988 to 2004 he remained posted in the Tribal Blocks of Lakhnadon where he worked as Medical Officer, during this period respondent No.4 was not M.L.A. nor holding any post of profit. It is stated that immediately after respondent No.4 was elected as a Member of the Legislative Assembly in January, 2004, respondent No.3 was shifted from Lakhnadaun in February, 2004 after his promotion as a District Health Officer and between February, 2004 to July, 2005 he remained posted in District Dindori as District Health Officer. Thereafter when he was promoted as Chief Medical and Health Officer he continued to remain in Dindori. It is pointed out that right from the year 2004 till passing of the impugned order respondent No.3 has remained in Dindori and after a period of more than 6 years posting in Dindori he is transferred. Contending that transfer is nothing to do with the office held by his wife and he is posted on regular basis on administrative consideration on the substantive post of Chief Medical and Health Officer held by him, accordingly, respondent No.3 resists the claim of the petitioner.
47. Even though respondent No.3, respondent Nos.4 & 5 have brought on record various documents showing complaint filed against the petitioner, enquiry ordered and the illegality committed, for the present, I am of the considered view that these questions need not be gone into in this writ petition, they will be referred to if required at later stage.
8. By filing a rejoinder and certain additional documents Shri Mrigendra Singh has tried to emphasize that petitioner has been transferred not only because of complaint of respondent No.4 an M.L.A. and wife of respondent No.3, but another M.L.A. of Barghat and a M.L.A. from district Ratlam have also made a complaint and as these complaints are made at the instance of respondent No.4, it is stated that the transfer is malafide. Accordingly, emphasizing that the transfer is effected due to malafide of respondents, petitioner seeks interference into the matter.
9. I have heard learned counsel for the parties and perused the record, so also the original file of transfer as produced by Shri S.S. Bisen. On a perusal of original file it is seen that on 14/06/2010 a meeting of officers of the department was held along with Ministers and a proposal of transferring 33 Chief Medical and Health Officers and Specialists were placed for consideration. Proposal was approved by the Director and thereafter the Principal Secretary and Minister of Department approved the proposal and the impugned order has been passed. So far as allegation and complaint made with regard to working of petitioner and the malafide of respondents no.4 & 5 are concerned, a perusal of the original file indicates that no such complaints are available on record and there is nothing to indicate that cognizance of any such complaint is taken and transfer effected. Petitioner has tried to challenge his transfer mainly attributing malafide to respondent No.4 5 and the adjustment granted to respondent No.3. If the material adduced by the petitioner in this regard are perused, except for filing a complaint made by the petitioner against respondent No.5 vide annexure P-4 and certain news item published in the newspaper, petitioner has not adduced any cogent material or any material to show that the transfer is ordered due to the complaint made by respondent No.4 at the instance of respondent No.5, the documents filed by petitioner along with petition are his grievance and complaint against respondent No.5. However, the role played by respondent No.5 and help extended to respondent No.5 by respondent No.4 in harassing the petitioner is not born out from the record, nor the original file. On the contrary it is seen that petitioner is not a duly appointed Chief Medical and Health Officer, he is holding the lower post of Specialist, whereas respondent No.3 is substantively appointed as Chief Medical and Health Officer. May be that respondent No.4 is an M.L.A. and she is the wife of respondent No.3, but the career graph of respondent No.3 indicates that he has remained posted in district Chindwara from the year 1983 to 1988 thereafter he was in Lakhnadaun District Seoni, where he worked as Medical Officer during period 1988 to 2004 in January, 2004, respondent No.4 was elected as M.L.A. and petitioner was transferred out of Lakhnadon. He was posted to Dindori initially he was holding the post of District Health Officer in Dindori, from which post he was promoted on 01/09/08 as the Chief Medical and Health Officer and after such promotion he continued to remain posted in Dindori. Dindori is indicated to be a Scheduled Tribal area and respondent No.3 has remained in Dindori right from 2004 upto the date of passing of the impugned order. There is nothing available on record on the basis of which it can be held by this Court that the posting of respondent No.3 on the post of Chief Medical and Health Officer, Seoni after having completed a period of more than 6 years posting in Dindori is 6 manipulated by respondent No.4 in any manner whatsoever. The allegation levelled by petitioner in this regard are not substantiated by any cogent evidence or material. On the contrary the records indicate that petitioner who is a specialist is transferred to another hospital in the same place of Seoni and, he is replaced by a duly appointed Chief Medical and Health Officer. Contention of the petitioner the he is senior to respondent No.3 cannot be accepted for the simple reason that respondent No.3 is holding the higher post of Chief Medical and Health Officer and petitioner is holding the lower post of specialist. That being so, it is the case where respondent No.3 who was working in the Dindori for six years is transferred in his substantive capacity on the post hold by him at Dindori and the evidence or material available on record is not sufficient to hold or attribute any malafide in posting petitioner to Dindori. Merely because respondent No.4, happens to be an M.L.A. and husband of respondent No.3 that by itself is not a ground to attribute malafide and hold the same to be established.
10. In Black's Law Dictionary 'malafide' is said to be an intentional doing of a wrong act without just cause or excuse, it is done with an intention to inflict an injury or under such circumstances that the law will imply an evil motive to the act.
11. Supreme Court has considered the question of malafide in cases of transfer and the following principles are laid down in the case of B. Varadha Rao Vs. State of Karnataka & Others, AIR, 1986 SC 1955 :
"The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bona fide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous considerations or for achieving an alien 7 purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as in 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 of service but for other purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
12. Similarly in the case of Mrs. Shilpi Bose & Others Vs. State of Bihar & Others, AIR 1991 SC, 532, it is observed by the Supreme Court as under :
"In our opinion, the courts should not interfere with a transfer order which are 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 Administrations which would not be conducive to public interest. The administration which would not 8 be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
13. Thereafter in the case of Rajendra Roy vs. Union of India and another, AIR 1993 SC 1236, the principle is laid down in the following manner :
"It may not be always possible to establish malice in fact in a straightcut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. "
14. If the malafide alleged in the present case is viewed in the light of the aforesaid requirement of law, it would be seen that except for making vague allegation on the assumption, as respondent No.4 happens to be an M.L.A. and husband of respondent No.3, petitioner assumes that the transfer is effected on the malice of respondent, however, there is no proof or cogent evidence in support thereof, therefore, it is a case where the malafide alleged is not established.
15. Even though in the return filed by respondents No.4 & 5 certain complaints and documents pertaining to irregularity committed by the petitioner while discharging duty of Incharge Civil Hospital Dindori have been filed, but original record of transfer does not indicate that action is taken on the basis of this report. The report submitted are undertaken after the order of transfer dated 15/06/2010 was issued.
916. Keeping in view the totality of the circumstances and the fact that the malafide alleged against respondent No.4 and adjustment granted to respondent No.3 is not established by cogent evidence, this Court does not deem it appropriate to assume malafide to be established, because respondent No.4, happens to be M.L.A,.and husband of respondent No.3 no such assumption can be drawn in the facts and circumstances of the present case.
17. During the course of hearing another ground canvassed by Shri Mrigendra Singh was to the effect that petitioner is being transferred and posted in District hospital Seoni where the Civil Surgeon posted is junior to petitioner.
18. Placing reliance on the seniority list, as indicated vide annexure P-7, it is the case of petitioner that his name appears at Sr. No.99 of the seniority list and one Dr. K.C. Meshram whose name appears at Sr. No.244 is the Civil Surgeon in District Hospital Seoni and, therefore, petitioner cannot be compelled to work under a junior person. It is for respondents No.1 & 2 to consider this objection of the petitioner and ensure that the petitioner is not required to work under a junior person, nor is the junior person is entitled to supervise the work of petitioner. On the petitioner submitting a representation in this regard it would be for respondents No.1 & 2 to consider the said grievance of petitioner.
19. Petitioner has also raised a ground of frequent transfer, as petitioner is only shifted from one place to another in the same town i.e. Seoni, the case of frequent transfer is not made out. So far as accommodation of respondent No.3 is concerned, this Court does not find any ground to uphold the same, respondent No.3 has remained in Dindori for more than 6 years and he is being posted to Seoni after more than 6 years.
1020. Accordingly, it is not a case where the allegation of malafide or accommodation if any granted to respondent No.3 is established, on the contrary it is a case where in a general promotion exercise in which about 39 officers have been transferred petitioner is also transferred, the same being on the basis of administrative consideration, no interference is warranted.
21. In the present case as petitioner is only transferred from the Incharge post held by him on adhoc basis to District Hospital Seoni and as this Court does not find malafide to be made out, no case is made out for interference into the matter. Accordingly, finding no case made, warranting consideration, the petition is dismissed with liberty to the petitioner to take recourse of departmental remedies available in case he has any grievance.
22. The petition stands dismissed without any order so as to costs.
(RAJENDRA MENON) JUDGE ss*