Allahabad High Court
Tula Ram Shukla vs State Of U.P. Through Secy. Deptt. Of ... on 11 March, 2013
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- SERVICE SINGLE No. - 611 of 2013 Petitioner :- Tula Ram Shukla Respondent :- State Of U.P. Through Secy. Deptt. Of Revenue Lko. & Ors. Petitioner Counsel :- Girish Chandra Verma Respondent Counsel :- C.S.C. Hon'ble Anil Kumar,J.
Heard Sri Girish Chandra Verma, learned counsel for the petitioner, Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel .
By means of present writ petition , petitioner has challenged the impugned order dated 28.1.2013 ( Annexure no.1) passed by opposite party no.2/ District Magistrate, Gonda, thereby transferring the petitioner from Tehsil Karnelganj to Tehsil Tarabganj District Gonda.
Facts as submitted by learned counsel for the petitioner are that the petitioner was initially appointed on the post of Lekhpal in the year 1979 , in the year 1994 he was attached to Lekahpal's Training School as teacher. Thereafter in the said capacity again in the year 2000 he was send to Lekhpal's Training School On 22.2.2008, petitioner was promoted to the post of Registrar Kanoongo. However, the opposite parties did not relieve him and continued him to work as teacher in the Training School. Subsequently , he was relieved on 5.8.2010 to join Tehsil Karnelganj as Registrar Kanoongo. As such he raised a grievance for payment of salary for the post of teacher for the said period in which he worked in Lekhpal Training School but no heed has been paid, hence for redressal of his grievance, he approached this Court by filing Writ Petition No.6410 (SS) of 2010(Tula Ram Shukla Vs. State of U.P. and others) . On 14.9.2010 following orders were passed:-
"Learned Standing Counsel informs that he has already received instructions in the matter.
Learned Standing Counsel further prays for and is granted two weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.
List immediately after expiry of the aforesaid period.
It is open for the petitioner to join on the transferred post subject to further decision of this Court."
Sri G.C.Verma, learned counsel for the petitioner further submits that in view of the said fact opposite parties 4/Sri Ayodhya Prasad Sub Divisional Magistrate, Tehsil - Karnelganj District Gonda and opposite party no.5/Sri Rajesh Kumar,Tehsildar Tehsil Karnelganj District Gonda became biased and prejudiced against the petitioner and in order to satisfy their whims opposite party no.4/Sri Ayodhya Prasad ,Sub Divisional Magistrate, Tehsil - Karnelganj District Gonda passed an order dated 20.6.2012 thereby transferring the petitioner from Tehsil Karnelganj to District Headquarter Gonda and further directed that one Sri Pratap Narain Misra , Registrar Kanoongo shall do the said work of Tehsil Karnelganj, Gonda.
Aggrieved by the said order dated 20.6.2012, petitioner approached this Court by filing writ Petition No. 3575 (SS) of 2012 ( Tula Ram Shukla Vs. State of U.P. and others) . On 29.6.2012 this Court has passed the following orders:-
"Heard Shri N. R. Tripathi, learned counsel for the petitioner, learned State Counsel and perused the record.
Learned counsel for the petitioner submits that order of transfer dated 20.6.2012 has been passed by way of punishment by Up Zila-Adhikari, Karnelganj, District-Gonda, who is not the appointing authority of the petitioner, as such, the same is illegal and arbitrary in� nature as well as in contravention to law laid down by the Hon'ble� the Apex Court in the case of Somesh Tiwari Vs. Union of India and others, 2009 (27) LCD 886.
Learned State Counsel prays for and is granted time to seek instructions till the next date of listing.
List/put up on 9.7.2012 as fresh.
Till then, no coercive measure shall be taken against the petitioner."
Thereafter opposite party no.4 by order dated 2.7.2012 recalled the order dated 20.6.2012 and the petitioner was assigned to work on the post of Registrar Kanoongo . In the meantime audit was conducted by the audit team and it was found that one Sri Kanhiya Lal was being paid salary in the grade pay of Rs. 4200/- whereas he was entitled to get salary in the grade pay of Rs.2800/-. So, keeping in view of the said fact petitioner prepared a salary bill of Kanahiya Lal in the grade pay of Rs. 2800/-. Due to the said act, opposite parties no. 4 and 5 become prejudiced and biased against the petitioner and started interfering in his work chiefly due to political pressure exercised by the President of Lekpals' Union. So the petitioner raised his grievance by means of representation dated 16.1.2013 ( Annexure no.12) to the District Magistrate, Gonda but no heed has been paid till date.
Sri Verma further submits that due to above said fact opposite parties no. 4 is so much prejudiced and biased against the petitioner, that he had given a statement that necessary departmental inquiry shall be initiated against the petitioner in view of the said facts , he placed reliance on the news item published in the newspaper Amar Ujala dated 26.1.2013 ( Annexure no.13). Accordingly, the petitioner had raised his grievance to opposite party no.2/ District Magistrate, Gonda without taking the same into consideration, by means of impugned order dated 28.1.2013 (Annexure no.1) petitioner has been transferred from Tehsil Karnelganj to Tehsil Tarabganj .
While challenging the impugned order of transfer dated 28.1.2013, the first arguments advanced by the learned counsel for the petitioner is that in the present case opposite party no.4/ Sri Ayodhya Prasad , Sub Divisional Magistrate, Tehsil Karnelganj district Gonda and opposite party no.5/ Sri Rajesh Kumar , Tehsildar Tehsil Karnelganj district Gonda are prejudiced and biased against the petitioner, so with oblique motive and purpose in order to satisfy their whims, time and again taken steps to harass him with a mala fide attitude, as such the said action on the part of opposite parties no. 4 and 5 is an action which comes within a ambit of ' malice of fact'. In this regard, it is also argued that the said action of opposite parties nos. 4 and 5 has been brought to the notice of opposite party no.2 by making a representation but no heed has been paid to the grievances raised by him, so he was compelled to lodge a complaint under Section 156(3) Cr.P.C. against opposite parties no. 4 and 5 in which action has been taken by the appropriate authority.
Further, in order to establish the 'mala fide of fact' against opposite parties no. 4 and 5 , learned counsel for the petitioner has placed reliance on a document/ letter (Annexure no. RA-1 to the rejoinder affidavit) written by one Sri Ram Sabha Misra , Advocate, Tehsil Karnelganj, District Gonda and the affidavits submitted by Ram Sabha Misra, Sri Bhola Nath as well as the report submitted by the Secretary of the Lekhpals' Union Unit, Tehsil Karnelganj District Gonda on 22.1.2013 (Annexure RA-3) and representation given by petitioner dated 27.10.2012 ( Annexure no. RA-4) to the District Magistrate , Gonda and on the basis of said documents/ facts , he argued that in spite of the 'mala fide of fact' established on the part of opposite parties no. 4 and 5 without taking into account the same, transfer order has been passed by opposite party no.2/District Magistrate which amounts to nothing but 'malice in law' so liable to be set aside. In support of his arguments ,learned counsel for the petitioner placed reliance on the judgment of Hon'ble Apex Court in the case of Somesh Tiwari Vs. Union of India and others,2009(27) LCD 886. and the judgment given by this Court in the case of Nabi Ahmad Khan Vs. State of U.P. and others ,1996 (14) LCD 460 in which this Court in para-10 has held as under:-
" I am of the view that the administrative order of transfer dated 1.1.1996 is entitled to be interfered with , as it was passed by way of punishment."
Second arguments which has been advanced by the learned counsel for the petitioner is that by means of impugned order dated 28.1.2013 ( annexure no.1) petitioner has been transferred from Tehsil Karnelganj Tehsil Tarabganj in District Gonda in place of one Sri Girish Chandra Sonker, who is working as Assistant Registrar Kanongo at Tehsil Tarabganj, District Gonda and transferred to Tehsil Karnelganj District Gonda so the impugned order amounts to reversion thus, liable to be set aside.
Last arguments advanced by learned counsel for the petitioner is that once Writ Petition No. 6410(SS) of 2010 filed by the petitioner against the order dated 5.8.2010 ( Annexure no.3) for redressal of his grievance is pending and in the said matter an order has been passed on 14.9.2010, the relevant portion on which the reliance has been placed " It is open for the petitioner to join on the transferred post subject to further decision of this Court." then in that circumstances the action on the part of opposite party no.2 to pass impugned order of transfer without taking permission from the Court before doing so, is nothing but amounts to an action which is in contravention to the order dated 14.9.2010 passed by this Court in Writ Petition No. 6410 of 2010 as such the impugned order of transfer dated 28.1.2013 ( Annexure no.1) passed by opposite party no.2 liable to be set aside and the present writ petition may be allowed.
Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel,in rebuttal, submits that opposite party no.2/ District Magistrate, Gonda, who is appointing authority of the petitioner, after taking into consideration the complaint made against him by opposite parties no. 4 and 5 with whom he has misbehaved and used abusive language, in the administrative exigency of service and in the interest of department has passed the impugned order transferring the petitioner . Thus, he submits that the arguments which advanced by learned counsel for the petitioner that there is malice in law on the part of opposite party no.2 in passing the impugned order , is totally incorrect and wrong rather the steps taken by opposite party no.2 transferring the petitioner is in accordance with law. In support of his submission, he placed reliance on the law as laid down by Hon'ble the Supreme Court in the case of Rantagiri Gas and Power Private Limited Vs. RDS Projects Limited and others ( 2013) 1 SCC 525 paragraph 38 quoted as under:-
"We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at time strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision making process is viewed with suspicion the integrity of the entire process shall be jeopardized. Officers taking views in the decision making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fides reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions. We have, therefore, no hesitation in holding that the findings\ recorded by the High Court to the effect that the process of annulment of the tender process or the rejection of the tender submitted by RDS was vitiated by mala fides is unsustainable and is hereby set aside. Question no. 2 is accordingly answered in the negative."
Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel further submits that if the 'malice in law' is being imputed against any person then he should made a party by name in order to rebut the said fact and in the present case petitioner has alleged the malice in law against opposite party no.2/ District Magistrate, Gonda who has passed the impugned order of transfer but has not impleaded him as party by name, so the arguments advanced by the learned counsel for the petition that there is malice in law on the party of opposite party no.2 while passing the impugned order is wholly incorrect and unwarranted, liable to be rejected on the said ground. In support of his arguments, he placed reliance on the judgments of Hon'ble Apex Court in the case of Rantagiri Gas and Power Private Limited(Supra) and State of A.P. and others Vs. Goverdhanlal Pitti (2003) 4 SCC 739.
Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel also submits that opposite party no.4, Ayodhya Prasad has joined on the post of Sub Divisional Magistrate Tehsil Karnelganj District Gonda in the month of November, 2012, so the argument advanced by learned counsel for the petitioner in respect to mala fide action/ malice of fact on his part as a result of which the action has been taken against the petitioner and accordingly he was compelled to file Writ Petition nos.6410 (SS) of 2010 (Tula Ram Shukla Vs. State of U.P. and others) and Writ Petition No. 3575(SS) of 2012 (Tula Ram Shukla Vs. State of U.P. and others) is totally incorrect and is a wrong fact , so from the pleadings/ documents on record, the ground which has been taken by the petitioner that the impugned order of transfer is an outcome of 'malice in fact' on the part of opposite parties no.4 and 5, he cannot derive any benefit.
He further submits that after opposite party no.4 joined on the post of Sub Divisional Magistrate, Tehsil Karnelganj District Gonda due to irregular functioning of petitioner, the said authority had warned him not to do so as the same is against the interest of department, however he abused him so a complaint has been made by the said authority to opposite party no.2/ District Magistrate, Gonda/ appointing authority of the petitioner, after taking into consideration the entire facts and material on record, the opposite party no.2 had passed the order of transfer. From the perusal of order dated 28.1.2013 by which petitioner has been transferred, It is evident that the same is neither punitive nor caste any stigma on the petitioner, as argued by his learned counsel rather the same has been passed by opposite party no.2 for smooth functioning and working of the department i.e. on administrative exigency of service. In support of his submission, he placed reliance on the judgment given by Hon'ble Supreme court in the case of Registrar General High Court of Judicature at Madras Vs. R. Perachi and others, AIR 2012 Supreme Court , 232 in which it has been held that :-
The Division Bench thereafter noted that the impugned order of transfer had been passed on an anonymous letter and thereafter on the basis of a report from the District Judge and after ordering of a vigilance enquiry. The Division Bench referred to three judgments of this Court in Ishwar Chand Jain Vs. High Court Punjab and Haryana reported in [1988 (3) SCC 370], K.P. Tiwari Vs. State of M.P. reported in [1994 Suppl. (1) SCC 540] and Ramesh Chander Singh Vs. High Court Allahabad reported in [2007 (4) SCC 247] and also to Centre for Public Interest Litigation Vs. Union of India reported in [2005 (8) SCC 202] and thereafter observed in paragraph 25 and 26 as follows:-
"25. Thus, it has been time and again held by the Honourable Apex Court that it is the duty of the higher judiciary to protect the officers of the lower judiciary from the persons, who make reckless, baseless and unfounded allegations, by way of anonymous petitions. The same reasoning would apply even in the case of staff members. Admittedly, in the case on hand, the impugned action has been initiated pursuant to an anonymous petition received.........."
26. None of these aspects have been taken into consideration before ordering transfer of the petitioner. No doubt, transfer is an incidence of service. But, since in the peculiar facts and circumstances of the case on hand, where the impugned order of transfer has served as a punishment on the petitioner, that too without conducting any enquiry, since it has impaired his chances of promotion besides reducing his cadre to that of the Sheristadar of the Chief Judicial Magistrate's Court from that of the P.A. to the District Judge, which he was enjoying even though as an additional charge, as there are many more seniors in the Ramanathapuram District, now a question would arise as to whether such an order of transfer which worked as a punishment on the petitioner, is sustainable under law."
We have considered the submissions of both the counsel. As far as the action of transfer against the first respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the appellant in his district was undesirable from the point of view of administration. Thus, it involved interdistrict transfer. The respondent no.1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case.
As can be seen from these judgments, they were all rendered in altogether different context. In the present case we are concerned with a Sheristadar who has been transferred on receiving a complaint, although an anonymous one, but against whom a departmental inquiry is pending. He has been transferred to another district though retaining him in the same cadre with the same pay as well as his seniority. Such an action was fully justified and within the authority of the High Court. No observations were made against him, nor was any stigma attached. The reliance on the above three judgments to interfere in such an order clearly shows a non-application of mind by the Division Bench to the problem which the High Court Administration was faced with, and which was being attended in accordance with the relevant rules. In Centre for Public Interest Litigation (supra), the grievance was with respect to the likely appointment of respondent No. 3 to the post of Chief Secretary, Uttar Pradesh when she was facing criminal prosecution. This Court had therefore directed that she be transferred to some other post in the cadre/grade to which she belonged. It was in this context that the Court made a general observation that, postings in sensitive posts should be made in transparent manner so that there is no scope for making grievance, though grievances can be made for ulterior motive with the intention of damaging the reputation of an officer who is likely to be appointed in a sensitive post. These observations have also no application in the present case since all that has happened is that first respondent has been transferred from one district to another in view of a complaint received against him and a pending inquiry. It cannot be said that the action was with a view to deny him any post. In fact the first respondent himself had stated in his Writ Petition to the High Court that there was no malafide exercise in his transfer.
In the case of Rajendra Singh and others Vs. State of Uttar Pradesh and others (2009) 15 SCC 178 in which it has been held as under:-
"A Government Servant has no vested right toremain 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; (2004) 11 SCC 402].
The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) & Ors. v. State of Bihar & Ors., 1991 Supp (2) SCC659 , this Court held :
"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-today 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."
And, in the case of Union of India and others Vs. Janardhan Devanath and another, (2004) 4 SCC 245 in which it has been held as under:-
"That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (AIR 1964 SC 449, para 21, p.456) to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearlywithout substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected bythe transfer prima facie does not arise."
He has further relied upon the judgment of Division Bench of this Court in the case of Dr. Anil Kumar Pradhan Vs. State of U.P. and others, 2010(81) ALR 587 and this Court has held as under:-
"In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred."
Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel further submits that so far as the submission made by learned counsel for the petitioner, that the impugned order of transfer amounts to reversion of the petitioner from the post of Registrar Kanoongo to the post of Assistant Registrar Kanoongo, is totally incorrect and wrong fact as the petitioner will be allowed to work and discharge his duties on the post of Registrar Kanoongo in Tehsil Tarabganj District Gonda where he has been transferred. In this regard he placed reliance on the affidavit filed by one Sri Dinesh Chandra, Tehsildar Karnelganj District Gonda which is on record and not rebutted by the petitioner . Accordingly, he submits that the argument in question raised on behalf of the petitioner that the impugned order of transfer amounts to reversion , is misconceived , liable to be rejected.
Sri Abhinav Narain Trivedi submits that the last arguments advanced by learned c ounsel for the petitioner that the impugned order of transfer dated 28.1.2013 passed by opposite party no.2 is in contravention of the order dated 14.9.2010 passed by this Court in Writ Petition No. 6410 (SS) of 2010 , is wholly misconceived and wrong as there is no legal requirement to take permission from this Court by opposite party no.2 prior to passing of the impugned order, as argued by learned counsel for the petitioner, because it is always open to the opposite party no.2/ appointing authority to pass afresh order on administrative exigency of service and in the interest of department, which has been done in the present case , so the writ petition lacks merit , liable to be dismissed.
Sri G.C. Verma, learned counsel for the petitioner , in rebuttal , submits that so far the arguments advanced by Sri Abinav Narain Trivedi, learned Additional Chief Standing Counsel that opposite party no.4 was posted in the month of November, 2012 as Sub Divisional Magistrate Tehsil Karnelganj District Gonda so the grounds and facts which has been alleged by the petitioner that there is malice of fact on the part of said authority is totally incorrect and wrong arguments which is evident from the perusal of the documents dated 27.12.2012 (CA-2) by which the said authority has made a complaint to opposite party no.2/ District Magistrate, Gonda against the petitioner and taking into consideration the said fact and without taking into consideration the representation made by the petitioner thereafter, opposite party no.2 has passed the impugned order of transfer thus the same is punitive in nature pased by way of punishment without application of mind so the said action on the part of opposite party no.2 is malice in law , liable to be set aside.
Learned counsel for the petitioner further submits that the petitioner made a representation dated 28.12.2012 ( CA-3 ) to opposite party no.2/ District Magistrate, Gonda requesting therein that he may be transferred from Tehsil Karnelganj to any other place like Tehsil Gonda or Tehsil Mankapur or Lekhpal Training School or District Revenue office but without considering the said request, opposite party no.2 by means of impugned order dated 28.1.2013 has transferred the petitioner from Tehsil Karnelganj to Tehsil Tarabganj subsequently opposite party no.5 has also been transferred to Tehsil Tarabganj, so the impugned order passed by opposite party no.2 is bad in law .
I have heard the arguments of learned counsels for parties and gone through the record.
Mala fide exercise of power means use of power for a purpose other that of which the power is conferred upon the authority. Same will be the case when the order is for a purpose other than which finds in the order itself. This ulterior or alien purpose clearly speaks of misuse of power and suggests bad faith.
Lord Lindley in General Assembly of Free Church of Scotland v. Overtown 1904 AC 515, has stressed the need of bona fide use of power by the administrative authority and it is held that there is a condition implied in this as well as in other instruments which create powers, namely that the powers shall be used bona fide for the purpose for which they are conferred. That an act done in bad faith vitiates the act has also been indicated by Warraington, CJ. In State v. Pool Construction 1926 Ch 66. as follows:-
" No public body can be regarded as having statutory authority to act in bad faith or corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."
Malice or mala fide is of two types:- (1) express malice or "malice in fact"; and (2) implied or legal malice or "malice in law". Mala fides violating proceedings may be factual or legal.
Malice in fact means when an action is taken out of personal ill-will, enmity, animosity, vengeance or spite, it can be described as "malice in fact", as there is personal mala fide.
Malice in law means when an action is taken or power is exercised without just or reasonable cause or for a purpose foreign to the statute it can be said that there is legal mala fide or "malice in law".
The former is actuated by extraneous considerations whereas the latter arises where a public authority acts deliberately in defiance of law, may be without malicious intention or improper motive (Somesh Tiwari v. Union of India (2009) 2 SCC 592).
The State is under obligation to act fairly without ill will or malice- in facts or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill felling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object mala fide exercise of power does not imply any moral turpitude, exercise of statutory power for purposes foreign to those for which it is in law intended. (Vide Jaichand Lal Sethia vs. the State of West Bengal & Ors. AIR 1967 SC 483; A.D.M. Jabalpur vs. Shiv Kant Shukla, AIR 1976 SC 1207; State of A.P. vs. Goverdhanlal Pitti, AIR 2003 SC 1941).
Further, the issue of "malus animus" was considered in Tara Chand Khatri vs. Municipal Corporation of Delhi & Ors., AIR 1977 SC 567, wherein the Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.
Accordingly, in order to challenge the order of transfer on the ground of mala fide there has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide Kiran Gupta & Ors. Vs. State of U.P. & Ors., (2000) 7 SCC 719 and Netai Bag & Ors. Vs. State of W. B. & Ors., (2000) 8 SCC 262).
In State of Pubjab vs. V. K. Khanna & Ors., AIR 2001 SC 343, the Apex Court examined the issue of bias and mala fide, observing as under:-
"Whereas fairness is synonymous with reasonableness- bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. Once redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, was existing a bias or a mala fide move which results in the miscarriage of justice.............. In almost all legal inquiries, 'intention as distinguished from motive is the all-important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse."
Further, the person against whom personal mala fides or 'malice in fact' and 'malice in law ' is imputed should be impleaded as a party respondent to the proceedings and he should be afforded opportunity to meet with those allegations. In his absence, no enquiry into the correctness or otherwise of the allegations can be made. The reason is very simple. The principles of natural justice require that no person should be condemned unheard. Now if allegations have been made against a person who is not made party to the proceedings and the court proceeds on the basis of those allegations, the person against whom such allegations have been levelled is condemned unheard.
In the case of State of Bihar vs. P. P. Sharma AIR 1991 SC 1260, Hon'ble the Supreme Court held as under:-
"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. ( All India State Bank Officers' Federation v. Union of India (1997) 9 SCC 151 and I. K. Mishra v. Union of India, (1997) 6 SCC 228.)"
In federation of Rly. Officers Association vs. Union if India & Ors., AIR 2003 SC 1344, the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.
It is also the settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations so made cannot be considered. (Vide State of Bihar and anr. Vs. P.P.Sharma, I.A.S. & Anr., AIR 1991 SC 1260; DR. J. N. Banavalikar Vs. Municipal Corporation of Delhi & Anr., 1995 Supp. (4) SCC 89; All India State Bank Officers' Federation & Ors. vs. Union of India & Ors., (1997) 9 SCC 151; and I.K. Mishra vs. Union of India and others, AIR 1997 SC 3740.).
Thus a question of mala fide may be looked into from two different angles. One relates to the mind set of the authority and the other to the actual manner of exercise of the power. On the first part, the inquiry is limited to the search if there is any personal bias, oblique motive or ulterior purpose in the act. The other is an inquiry into the powers of the authority and whether they have been exercised contrary to the requirements. Where apart from the allegations nothing is stated in the petition attributing any personal bias, grudge, oblique motive or ulterior purpose, there is absolutely no need for exercising any inquiry by putting the opposite party on cross-examination to prove his affidavit of denial of the allegation of mala fide.
Hon'ble the Supreme Court in the case of Ratnagiri Gas and Power private Limited (supra) has considered the malice of law and hold as under:-
Coming then to the question whether the action taken by the appellant-RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind.The conceptual difference between the two has been succinctly stated in the following paragragh by Lord Haldane in Shearer v.Shields (1914) A.C. 808 quoted with approval by this Court Additional District Magistrate, Jabalpur v. Shivkant Shukla(1976) 2 SCC 521 :"410.
".....Between 'malice in fact' and 'malice in law' there is a broaddistinction which is not peculiar to any system of jurisprudence.The person who inflicts a wrong or an injury upon any person incontravention of the law is not allowed to say that he did so withan innocent mind. He is taken to know the flaw and can only actwithin the law. He may, therefore, be guilty of 'malice in law',although., so far as the state of ins mind was concerned heacted ignorantly, and in that sense innocently. 'Malice in fact' isa different thing. It means an actual malicious intention on the part of the person who has done the wrongful act."
Reference may also be made to the decision of this Court in State of AP & Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739 where the difference between malice in fact and malice in law wassummed up in the following words:
"The legal meaning of malice is "ill-will or spite towards aparty and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from il l feeling and spite '. It is a deliberate act in disregard of the rights of others'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989].
Where malice is attributed to the State, it can never be a case o f persona l ill-wil l or spite on the part o f the State. I f at all, it is malice in lega l sense, it can be described as an act which is taken with a oblique or indirect object... "
To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Ors (2012) 2 SCC 407 where this Court observed:
"MALICE IN LAW:
This Court has consistently held that the State is under anobligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case ofpersonal ill-will or spite on the part of the State. "Legal malice"or "malice in law" means something done without lawful excuse.It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry and Anr. v. V. Ramakrishnan and Ors.,2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745)."
Keeping in view the said facts and legal position of law on the point in issue, a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or tribunals when the same is passed for requirements of the situation concerned in the administrative exigency of services and in the interest of the department. This is for the reason that Courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on considerations borne out of conjectures or surmises and except for strong and convincing reasons, accordingly no interference could ordinarily be made with an order of transfer.
In the instant case , petitioner has alleged 'malice in law' on the part of opposite party no.2/ District Magistrate, Gonda transferring him by order dated 28.1.2013 on the basis of some complaint made by him by opposite parties no. 4 and 5 who are post as Sub Divisional Magistrate and Tehsildda at Tehsil Karnelganj District Gonda respectively against whom he has alleged malice of fact on the basis of documents ( Annexure nos . 8 to 11) as well as the news item published in daily newspaper on 26.1.2013 in Amar Ujala and also taking assistance of letter written by Sri Ram Sabha Misra Advocate, Tehsil Karnelganj, District Gonda as well as the affidavit of Bhola Nath and a letter written by the Secretary of the Lekhpal Sangh has got no force, as admittedly in the present case District Magistrate Gonda against whom malice in law has not been impleaded as party by name in writ petition so keeping in view the said fact as well as the position of law stated herein above before attributing the imposing of 'malice in law' the person against whom the said malice has been imposed should be a party in order to give him opportunity to meet those allegations which have been levelled against him by passing an order in his/ her absence no inquiry in this regard would be made otherwise it itself is violative of principles of natural justice and it amounts to condemning a person without opportunity , so keeping in view and taking into consideration that the District Magistrate, Gonda after considering the entire facts and circumstances of the case, in the administrative exigency of service and in the interest of department has passed impugned order of transfer as such the arguments in question advanced by learned counsel for the petitioner challenging the order of transfer on the ground of 'malice in law' on the part of opposite party no.2/ District Magistrate,Gonda, has got no force , hence rejected as per the facts and position of law as stated above [see also Ratnagiri Gas and Power private Limited (supra) as well as Registrar General High Court of Judicature at Madras(supra), Rajendra Singh and others (Supra) and Union of India and others Vs. Janardhan Devanath and another (supra) as well as in view of the judgment passed by this Court in the case of Dr. Anil Kumar Pradhan ( Supra)].
The next argument advanced by learned counsel for the petitioner that by means of impugned order dated 28.1.2013 passed by opposite party no.2 petitioner, working as Registrar Kanoongo has been transferred from Tehsil Karnelganj to Tehsil Tarabganj whereas one Sri Girish Chandra Sonkar who has been transferred from Tehsil Tarabganj to Tehsil Karnelganj working as Assistant Registrar Kanoongo is noting but amounts to reversion. From the material on record (i.e. in view of para-5 of the affidavit filed by Dinesh Chandra, Tehsildar, Tehsil Karnelganj, District Gonda which has not been rebutted by the petitioner) it is clearly established that by means of order dated 28.1.2013 , petitioner who has been transferred to Tehsil Tarabganj District Gonda who will discharge the duties and work as Registrar Kanoongo so the arguments advanced by learned counsel for the petitioner that the impugned order is nothing but amounts to reversion , is wholly incorrect and contrary to the facts and circumstances of the case .
The last arguments which has been advanced by learned counsel for the petitioner that earlier petitioner being aggrieved by the order dated 5.8.2010 (Annexure no.3) by which petitioner has been transferred to Tehsil Karnelganj and has been relived from Training School , Gonda when he demanded salary for the post of teacher while working and discharging at Lekpals' Training School so he has challenged the said action by filing Writ Petition No. 6410 (SS) of 2010 ( Tula Ram Shukla Vs. State of U.P. and others ). On 14.9.2010 this Court has passed an order that " It is open for the petitioner to join on the transferred post subject to further direction of this court" thus, without taking permission from this Court , impugned order dated 28.1.2013 has been passed so the same is in contravention of order dated 14.9.2010 passed in Writ Petition No. 6410 (SS) of 2010, are wholly misconceived and incorrect arguments as the said order does not in any manner a legal impediment or bar on the part of opposite party no.2 to pass fresh orders of transfer taking into consideration the administrative exigency of service and in the interest of department, as no government servant has got a vested right to remain posted at a particular place of his own choice nor can be 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 and the scope of judicial review in the matter of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited.
Further, it is not a case of the petitioner that his transfer is contrary to rule or has been passed by the authority who is not competent , so the arguments which advanced by the petitioner that the impugned order passed by opposite party no.2 is in violation of the order dated14.9.2010 passed by this Court in Writ Petition No. 6410 (SS) of 2010( Tula Ram Shukla Vs. State of U.P. and others ) has got no force because the said directions is limited only to the facts and circumstances of the said matter, so the same cannot be a ground or legal embargo in the way of opposite party no.2 to transfer the petitioner by means of order dated 28.1.2013 who is otherwise competent authority to do the same coupled with the fact that the petitioner is holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. As observed by Hon'ble the Apex Court in the case of Gujarat Electricity Board vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433 as under :
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."
In Union of India vs. H. N. Kirtania, AIR 1989 SC 1774, the Apex Court observed as under:-
"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules on ground of mala fide."
In Union of India Vs. S. I. Abbas AIR 1993 SC 2944, the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in vioaltion of the statutory provisions.
In State Bank of India vs. Anjan Sanyal, AIR 2001 SC 1478, the Apex Court held as under:-
"An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order."
In S. C. Saxena Vs. Union of India & Ors., (2006) 9 SCC 583, the Apex Court depricated the practice of approaching the Court by the Government employees against transfer order rather joining the transferred place.
In State of U.P. Vs. Gobardhan Lal, AIR 2004 SC 2165, the Supreme Court held as under:-
"It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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 contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power of violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision (See also State of U.P. vs. Siya Ram, (2004) 7 SCC 405)."
For the forgoing reasons there is neither any illegality nor infirmity in the order dated 28.1.2013 passed by opposite party no.2/ District Magistrate, Gonda thereby transferring the petitioner from Tehsil Karnelganj to Tehsil Tarabganj, District Gonda.
In the result, the writ petition lacks merit and is dismissed.
No order as to costs.
Order Date :- 11.03.2013 dk/