Rajasthan High Court - Jaipur
Bhanwar Lal Jhakad vs Raj Civil Services Appellate Tri And Ors on 24 October, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.19025/2013 Bhanwar Lal Jhakad versus Rajasthan Civil Services Appellate Tribunal, Jaipur & ors 24.10.2013 HON'BLE MR. JUSTICE MN BHANDARI Mr Harsh Vardhan Nandwana - for petitioner(s) BY THE COURT:
By this writ petition, challenge is made to the impugned order of transfer dated 30.9.2013 whereby petitioner has been transferred from Merta (Nagaur) to Jodhpur.
The challenge is made precisely on the ground of political interference inasmuch as desire for transfer of respondent No.3- Karma Ram Choudhary was made by the respondent No.4- Smt Manju Devi, State Minister, Women & Child Development Department, who is not concerned to the department to which petitioner belongs. The petitioner challenged the order of transfer before the Rajasthan Civil Services Appellate Tribunal, Jaipur, however, it refused to interfere without taking note of the aforesaid aspect and ignoring the fact that petitioner was transferred few months back to the impugned order i.e. vide order dated 5.7.2012 at annexure-1. Thus transferring him to other place is illegal. Learned counsel has given reference of the judgment in the case of Girraj Sharma versus State of Rajasthan & ors [2002 WLC (Raj) UC 721. The other judgment is in the case of Satya Narayan versus State of Rajasthan & ors [WLR 1992 (S) Raj 317. The administrative law mandates action only by a competent authority and not at the behest of someone else. The impugned order though passed by the competent authority but it is as per desire of the Minister.
I have considered the submissions and perused the record.
The order of transfer can be interfered when it is in violation of the statutory provisions or it suffers from mala fide. Reference of the judgment in the case of Union of India & ors versus SL Abbas [(1993) 4 SCC 357] is relevant apart from the judgment in the case of Rajendra Singh & ors versus State of Uttar Pradesh & ors [(2009) 15 SCC 178). Further reference in the case of State of UP & ors versus Goverdhan Lal [(2004) 11 SCC 402 can be given. It was held that a government servant has no vested right to remain posted at a place of his choice and challenge can be on the ground of mala fide or violation of statutory provisions.
In view of the above, now, present matter is to be adjudicated. The allegation of the petitioner is regarding accommodation of respondent No.3-Karma Ram Choudhary at the behest of the Minister.
The first question comes as to whether it amounts to mala fide against the petitioner. The mala fide means personal bias of the officer resulting in harassment. The case in hand is not of that nature. The Minister has been made party without showing as to what was her bias or ill object against the petitioner and the reasons thereof. The allegation of mala fide thus remains only as a ground.
The question now comes as to whether a desire can be made by the political persons for transfer. Learned counsel referred judgments of the Division Bench of this court for that purpose. In the case of Girraj Sharma (supra) there was specific allegation of mala fide against the respondents. The allegation remained unrebutted hence interference in the order of transfer was made by the court. This court has not propounded ratio on the issue of transfer at the instance of a political person. Hence, judgment aforesaid does not provide any assistance to the issue raised herein.
Another judgment is in the case of Satya Narayan (supra). Therein the issue was directly the same as exist herein. The order of transfer at the instance of the MLA was not held to be sustainable but, earlier judgment of Division Bench of this court in the case of Bhagirath Mal versus State of Rajasthan & ors [RLR 1990 (2) 561 was not referred. Therein, transfer of an employee at the instance of political person was not interfered.
Learned counsel for petitioner made a further reference of the judgment in the case of Rajasthan Council of Diploma Engineers versus State of Rajasthan [RLW 1989(1)231]. The perusal of the judgment does not show a ratio propounded on the issue. Para 9 of the said judgment has been referred specifically but it gives reference of the judgment of the Himachal Pradesh High Court in the case of Ram Krishan versus The District Education Officer, Kulu, Himachal Pradesh [1980 Lab IC 36]. Therein, transfer order was not challenged but grievance was raised by the council in regard to the affairs of the government in the matter of transfer. Therein, individual had not approached the court.
In view of the above, the direct judgment on the issue is of Division Bench of this court in the case of Bhagrath Mal (supra) The relevant para 3, 7, 8, 11, 13, 15 and 16 of the judgment in the case of Bhagirath Mal are quoted hereunder for ready reference and to show that a transfer at the desire of the political person is permissible -
3. Learned Single Judge has held that in case of transfer from one division to another,so far as the employee is transferred,otherwise on his own request,his seniority has to be taken into consideration after taking into account his past continuous service,which counts for seniority in that category,in the old market committee.Thus, the dispute relating to the seniority was decided in favour of the present appellants. However, the learned single judge further held that if the Minister concerned can have no power to transfer in the department under him,who else will have power to transfer him. Orders are passed by the competent authority ultimately on the desire of the Minister. None can take objection,unless mala fides are shown so far as the Minister incharge of the Department is concerned. The transfer order was maintained and the writ petition was disposed of accordingly.
7. The Division Bench of this court in the case of (2) Shambhu Dayal Kureel Vs. Union Of India (1982 R.L.R181)has held that In public service transfer is an incident of service is often necessary for a proper management and control of administrative machinery. It can therefore,be said that the power of transfer is an essential attribute of the power of the administrative control. Since the transfers are made for reasons of administrative exigencies,the authority incharge of the administration would be best judge of the propriety,necessity or desirability of such transfer. The exercise of administrative discretion in the matter of transfer of an employee from one post to another would not be open to challenge except when the said discretion has been exercised in an arbitrary and unreasonable manner so as to violate the right to equality guaranteed under Arts.14 and 16, if the transfer is made on account of exigencies of administration and is not from a higher post to a lower post. Their Lordships further held that it is for the Government to consider who should be transferred. Retention of persons for more than 20 years at one place and transferring the petitioner after 5 years cannot be said to be discriminatory. Their Lordships further held that when the petitioner makes out a prima facie case for mala fides the respondent Government is bound to place full material before the court to justify its action. The court held that the court can call for the record. The Court further held that it is for the Government servant who is assailing the order to establish malice on the part of the authority who has passed the order,because the burden of establishing mala fides lies on the person who alleges it. The Court further held that the allegation of mala fides are often easily made than proved and the very seriousness of such allegations demands proof of high order of credibility.
Thus, the court rejected the appeal of the employee.
8. In the case of (3) Hari Mohan Dube Vs.State of Rajasthan (1989(1) R.L.R.36), the Division Bench Of this Court held in the said case that the transfer order should not be interfered unless mala fide is proved.
11. Our country is a member of the common wealth and we have borrowed much from the Constitution of the common wealth countries and other countries.In the book,Australian Constitution Law by the Fajgenbaum and Hanks, Chapter -IV,deals with the Ministerial responsibilities. The author has said Even if we can trace a pattern,it would be a gross error to expect rules of political responsibility in Australia to mirror those, regarded as established within the United Kingdom. There are peculiar features in the local political structure, in particular, the lack of a stable two party system and the relationship between Parliamentary and extra-parliamentary branches of political parties. These features must have some influence on the pattern of political behaviour. Minister alone speaks for a civil servant to the House and to his civil servants for the House. The conventional and Ministerial responsibilities have both proleptic and compulsive features of rule.While discussing the political responsibilities and in number of cases it has been expressed that the statement of fact is not a code in politics and Ministerial responsibility, what is more,a statement of fact,it comes from close of being truism. Truism is that the Minister will have to satisfy the parliamentarian and the legislators,as he can remain in office only upto the time of confidence of the Parliamentarians and Legislators. Extra parliamentary parties and Legislators and the parliamentarians dictate the policy to the Government.
Sydney Daily Telegraph published article Under the Caucus system the Government is to have no responsibility ,and is pledged to do as the Caucus orders it,irrespective of its own convictions. This involves a radical change from the methods under which responsible Government has hither to been conducted. Parliament,instead of being an arena of open discussion,will be turned into an office for simply registering decisions arrived in secret enclave. The paper has gone to the extent that Ministry will be an automation without political life or political responsibility.
13. So far as our country is concerned,we have adopted Parliamentary system of Government. There are wings of the state, namely, Legislature, Judiciary and the Executive and all three function on the principle of check and balance. The Legislature has to make the laws and lay down the policies for the governance of the country. Executive is required to carry out these policies in day to day administration of the country. The judiciary has been assigned the role of keeping the executive within the bounds of the constitutional parameters and the laws are enacted by the Legislature. Parliamentarians and Legislators are representatives of the people. They represent the will and wishes of the people,of a particular area to which they represent,in the Parliament or the State Legislature. It is their solemn duty to act as a watch,dog of the interest of the public to which they present. Their duties and responsibilities are immense and righteous and precisely for this reason, during the last 40 years of the working of the Constitution, it has been realised that the members of parliament and the Legislature must see that Government and particularly the executive discharges its functions in the larger public interest. The Parliamentarians and the Legislators will have to develop his constituency and he is responsible for the development of his constituency in particular and to the people of the State and country in general. Ministers are normally chosen from amongst the representatives of the people. The Ministerial responsibility is obviously more than that of parliamentarians or the Legislators. The Minister has to conduct himself in such a manner so as to inspire confidence not only to the people to whom he represents,but also the representatives of the people. Normally,a Minister who loses the confidence of the representatives of the people,he cannot remain in office.
15. It is for the representatives of the public to Judge as to whether a particular Officer is suited for a particular work in his area or not. He has a right to ask the Minister for a change of the government servant and posting of some other government servant. The resultant up-rooting of a Government servant from one place cannot ordinarily be said to be a result of bias or mala fide. We cannot accept the contention that a recommendation of the representative of the public,namely,the member of the State Legislature or that of the Parliament or a mere desire of a Minister for position of a particular government servant in a particular area should be treated as vitiated by bias, mala fide or bad faith. In the Parliamentary system of democracy, it cannot, for a moment, be accepted that executive is only the Judge for the needs of the people of a particular area. The executive authorities cannot be placed at a higher pedestal in comparison to public representatives. Therefore, if the representatives of the people or the Minister make any desire for transfer of Government servant, the same cannot ordinarily be interfered with by the court unless it is established that the desire was actuated by the personal bias or malice or for some extraneous consideration. It cannot be laid down as a rule that in every case of transfer on the desire of Minister or the Member of the Legislature or the Parliament, it must be held that the transfer is vitiated by the malice in law. The malice in law cannot be presumed to be existing in such cases. Only when the blatant misuse of power or violation of law is the the court would interfere with the order of transfer. We also do not accept the submissions of the learned counsel for the appellants that the Minister cannot be said to be the representative for the Government. The Minister of a department is ordinarily the highest responsible functionary regarding different matters relating to working of his department. In large number of matters, the decision are taken by the Minister of department. In any case, he is an authority higher than the executive, bureaucratic functionary of the department and, therefore, if the Minister expresses desire or accepts the recommendation of the representatives of the people for transfer of an officer, employee from a particular place or posting of another officer, employee at such place no exception can be taken. This consideration is a 'truism' in the life of the politician and the Ministers. It is the duty of the Minister to see the general development of the state as a whole and development of the country as a whole is carried out particularly the nursing and welfare of those persons by whose confidence he is in the power. If the M.L.A. or the M.P. asks for the transfer of the particular officer or of a particular person and further requests for the appointment of a particular person and further requests for the appointment for a particular person for the better development of his constituency and better nursing of his constituency,no exception can be taken to it. On the contrary, he performs part of his duty for the better development of his constituency.
16. Mere desire of the Minister that a particular person should be posted at a particular person should be posted at a particular place is not a case of bias. A Minister ordinarily does not know the man who is to be posted. He acts on the advice of the public representative for the betterment of the area. It is not a case of bias,but,it is the performance of duty cast on the Minister and to assist the public representative in the discharge of his duties. The Minister can take suo-motu action also. Posting of one may amount up-rooting of the other; up-rooting the other cannot be termed suffering from bias as everything is done for the betterment of the area. None can know better than a public representative as to what are the requirements of the area, how the problems can be solved and what type of assistance the public representative wants for the betterment of the Constituency.
In view of judgment of the Division Bench, the issue can be decided. A reference of the order of the Apex Court in the case of Sarvesh Kumar Awasthi versus UP Jal Nigam & ors [(2003) 11 SCC 740 has been given. It is not a judgment but an interim order passed by the Hon'ble Supreme Court yet reported. It is more so when appeal was later on dismissed. The publisher of the Supreme Court Cases are expected to print only judgments and not the interim orders passed by the courts. It is more so when relying on it, a Division Bench of the Allahabad High Court passed a detailed judgment.
In view of the above, I do not find any illegality if the transfer order is passed at the behest of the Minister or the MLA. It is in view of the Division Bench judgment referred to above.
Now, the question remains as to whether there is violation of Rajasthan Service Rules.
I find that the order herein has been passed by the competent authority and not by the Minister or the MLA. It may be that said order has been passed taking note of the desire but merely for that reason, it cannot be said that order has not been passed by the competent authority. The judgment of the Hon'ble Apex Court in the case of 2011 5 SCC 434 require application of mind by the competent authority. It cannot be said to be missing herein. Thus, on that ground also, I am not inclined to interfere in the order of transfer.
Now comes conduct of the petitioner. The perusal of the writ petition reveals that earlier vide order dated 5.7.2012, petitioner was transferred but it was within Merta City itself. He has now been transferred to Jodhpur. Thus, argument that petitioner has been displaced within 14 months is contrary to the facts as he was earlier transferred and posted in Merta City itself. Learned counsel was asked as to since when petitioner is working in Merta City, he is unable to inform about it. Para 7 of the writ petition tries to focus transfer of the petitioner within a period of 14 months to unsettle a person from one place. It is nothing but an effort to mislead the court thus conduct of the petitioner is also taken note for that purpose.
In view of the discussion made above, while finding no merit in the grounds raised by the petitioner, writ petition so as the stay application are dismissed. Looking to the conduct of the petitioner, he is warned to be careful in future otherwise heavy cost would be imposed on him.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J