Matadin Maurya vs State Of U.P. Through Prin. Secy. ... on 26 September, 2014

[Cites 29, Cited by 2]

Allahabad High Court

Matadin Maurya vs State Of U.P. Through Prin. Secy. ... on 26 September, 2014

(Delivered by Hon'ble B.K. Srivastava-II, J) The brief facts of the case are that initially the petitioner was appointed as Assistant Consolidation Officer in the year 1994 and had worked on the said post since 07.09.1994 to 24.07.1997 at district Banda and thereafter he has been promoted on the post of Consolidation Officer and had worked since 25.07.1997 to 24.07.2004 at district Azamgarh and in District Hamirpur from 05.07.2008 to 20.05.2012 and in district Lucknow from 21.05.2012 to 25.07.2012 and thereafter he has been further promoted on the post of Settlement Officer consolidation and posted at Allahabad since 26.07.2012 till the passing of the transfer order dated 26.06.2014 whereby the petitioner has been transferred from District Allahabad to Lalitpur.

Against the transfer order dated 26.06.2014, the wife of the petitioner, who claims to be an Assistant Teacher in Arya Kanya Intermediate College, Allahabad has made a representation dated 27.06.2014 before the respondent no.1-Principal Secretary, Revenue Department, U.P. Lucknow stating therein that she is also a government servant posted in Allahabad, hence in light of Clause 1-D of the transfer policy, the petitioner is entitled to be transferred at the said place and further that the prescribed period under the policy having not expired, it would be a mid term transfer insofar as it relates to the petitioner. Thereafter the petitioner has filed Writ Petition No. 941 (SB) of 2014 [Matadin Maurya Vs. State of U.P. and others] and the Division Bench of this Court after hearing the learned counsel for the parties on 07.07.2014 has passed the following order:

"We have heard Sri Kumar Ayush, learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1, 2 and 3. Notice need not be issued to the respondent no.4 in view of the order being passed herein.

The petitioner is aggrieved by the order dated 26.06.2014 passed by the Commissioner Consolidation, Uttar Pradesh, Lucknow, respondent no.2 as contained in Annexure-1 to the writ petition.

Learned counsel for the petitioner has submitted that the Transfer Policy dated 04.06.2014 filed as Annexure-5 to the writ petition provides that when the husband and wife both are government servant then as far as possible they should be transferred at the same place. Learned counsel for the petitioner states that the petitioner has been posted as Settlement Officer, Consolidation, Allahabad since past two years and as such in light of the Transfer Policy, the petitioner could not have been transferred prior to expiry of the prescribed period given therein. Learned counsel for the petitioner has referred to Annexure-6 to the writ petition, which is a representation made on 27.06.2014 by the wife of the petitioner, who claims to be an Assistant Teacher in Arya Kanya Intermediate College, Allahabad and therefore, submits that when the wife of the petitioner is also a government servant posted in Allahabad, hence in light of Clause 1-D of the transfer policy, the petitioner is entitled to be transferred at the said place and further that the prescribed period under the policy having not expired, it would be a mid term transfer insofar as the petitioner is concerned.

We find from the record that the transfer policy has provided that as far as possible the husband and wife, if they are both government servant should be posted at the same place and no representation can be made by the Government Servant against his transfer in light of Clause 14 of the said transfer policy. We are aware that the transfer policy is not enforceable in law however, the transfer policy which has been brought out by the Government is for the benefit of the employee and we find no reason as to why the Authority would not consider the grievance of the wife of the petitioner who also claims to be a government servant.

Under such circumstances, we find that the petitioner's wife has already made a representation dated 27.06.2014 filed as Annexure-6 to the writ petition, hence it would be appropriate that the respondent no.2, Consolidation Commissioner, U.P. Lucknow should consider the representation of the petitioner's wife in light of the transfer policy dated 04.06.2014 and particularly consider the entitlement of the petitioner in view of Clause 1-D of the said policy.

The Consolidation Commissioner, U.P. Lucknow should consider the representation by passing a reasoned order preferably within two weeks from the date a certified copy of this order alongwith representation is served upon him. The order so passed, be communicated to the petitioner forthwith.

The order impugned shall therefore, be subject to the result of the decision so taken by the Consolidation Commissioner, U.P. Lucknow.

However, in case the petitioner is aggrieved by such order he shall have liberty to avail the remedy available to him in law against such decision taken by the Authority.

The writ petition stands disposed of.

No order is passed as to costs."

Thereafter the wife of the petitioner through her representation dated 11.07.2014 has served the certified copy of the order dated 07.07.2014 in the office of respondent no. 2, which has been received in the office on 16.07.2014. In the said representation the wife of the petitioner has stated that she is working as Assistant Teacher in Arya Kanya Inter College, Mutthiganj, Allahabad. Her daughter and son are studying in class 11th and 8th respectively. Her father-in-law had died and her mother-in-law aged 85 years is living with her. Her mother-in-law often remains ill and she is also the patient of Thyroid, High Blood Pressure and Depression, therefore, keeping in view the devotion, hard working and honesty of her husband, prays that the transfer of her husband from district Lalitpur be cancelled and if possible he may be posted at Varanasi, Kaushambi or Kanpur.

The respondent no.2-Consolidation Commissioner, Uttar Pradesh, Lucknow in compliance of the order of this Hon'ble Court dated 07.07.2014 and keeping in view the transfer policy dated 04.06.2014 and also considering the problem of the wife of the petitioner vide impugned order dated 13.08.2014 the respondent no. 2 disposed of the representation of the wife of the petitioner, whereby he has altered the transfer order dated 26.06.2014 and the petitioner has been given posting at district Kaushambi on the post of Settlement Officer Consolidation in place of district Lalitpur.

Learned counsel for the petitioner submits that the impugned order has been passed as a measure of punishment. Clause 1-D of the transfer policy dated 04.06.2014 has not been complied with as the grievance of the wife of the petitioner that she is working as Assistant Teacher in Arya Kanya Inter College, Mutthiganj, Allahabad has not been considered. Further the respondent no. 2 while passing the impugned order dated 13.08.2014 has not considered the fact that the children of the petitioner are also studying at Allahabad. His further submission is that the respondent no. 2 has clearly ignored Clause 1-D of the transfer policy wherein it has been provided that in case the husband and wife both are government servant then if possible they should be posted at one place.

Learned counsel for the petitioner vehemently argued that the passing of the impugned order transferring the petitioner to district Kaushambi clearly shows the bias attitude of the respondent authorities as in the impugned order the respondent no. 2 has mentioned that the petitioner has weak administrative control over the subordinate staff, careless in performing the duty, failed in achieving the desired target and public interest were shown as the cause for transfer of the petitioner.

Further argument of learned counsel for the petitioner is that the bias and malafide attitude of the respondents are further fortified by the minutes of the meeting dated 29.01.2014 and Sections 23, 27 and 52 of the U.P. Consolidation of Holdings Act, clearly show that the progress of approximately 20 districts was zero and in the said minutes the name of district Allahabad does not find place and as such the impugned order of transfer has been passed as a measure of punishment.

In support of his submissions learned counsel for the petitioner has placed reliance on the judgment of the Apex Court rendered in the case of Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 in which in paras 19 and 20 the Apex Court held that " it is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal". He further submits that from the perusal of the transfer order it appears that the same has been passed in work interest public interest, whereas in fact it is based on complaint and so called enquiry report by way of punishment as is apparent from the consequential order dated 13.08.2014 which is impugned in this writ petition. It is also stated that the impugned order of transfer is totally based on malice in law as is apparent from the impugned order itself.

Learned counsel for the petitioner further placed reliance on the judgment of the Apex Court rendered in the case of Sarvesh Kumar Awasthi Vs. U.P. Jal Nigal and others [2003(11) SCC 740] wherein the Apex Court held as under:

"Laying down the transfer policy for I.A.S. And P.C.S. Officers would be strictly adhered to. In this view of the matter, this petition would not survive and stands disposed of accordingly. If any other officer is having any grievance, it would be open to him to approach the appropriate forum."

He submits that before the Apex Court the Chief Secretary, State of U.P. has given an undertaking and affidavit to frame the transfer policy and to adhere the same and thus the Consolidation Commissioner, U.P. cannot be allowed to pass such a transfer order contrary to what has been stated by the State Government before the Apex Court in Sarvesh Awasthi's case and as such the impugned order is in gross violation of the undertaking given by the State Government and is liable to be set aside.

It is also submitted by the learned counsel for the petitioner that the State Government keeping in view the decision of the Apex Court rendered in the case of Sarvesh Awashti (Supra) has issued the transfer policy dated 04.06.2014 and further the State Government/Consolidation Commissioner passed the impugned order as a measure of punishment totally ignoring the transfer policy and as such the impugned order is a punitive transfer and the same deserves to be set aside and quashed.

Learned counsel has further placed reliance on the judgment of the Apex Court rendered in the case of Arvind Dattatraya Dhande vs. State of Maharashtra and others decided on 10.07.1997 in which the Apex Court has quashed the transfer order which was passed on the basis of some complaint holding that the transfer order is not in public interest but is a case of victimization of a honest officer at the behest of the aggrieved complainant.

Learned Standing Counsel on the basis of counter affidavit has submitted that the petitioner while posted as Settlement Officer Consolidation, Allahabad in the financial year 2013-14 has failed to achieve the annual target of 7320 acre as provided under Section 23 of the Act, 15147 Gata as provided under Section 27 of the Act and further annual target of 13 villages as provided under Section 52 of the Act. Further the progress in consolidation work of the petitioner remained very slow and most unsatisfactory and due to this very reason and the complaints made by Sri Santosh Yadav, a villager before the higher authorities regarding village Naika in district Allahabad and also keeping in view the enquiry report of the two members committee dated 24.06.2014 vide order dated 26.06.2014 he has been transferred from district Allahabad to Lalitpur.

Further submission of learned Standing Counsel is that the transfer of the petitioner has been made in public interest and also in the interest of the Government work as such it cannot be said that the transfer of the petitioner has been made as a measure of punishment. It is also submitted that the wife of the petitioner Smt. Nivedita in her representation claimed the benefit of Clause 1-D of the transfer policy of the year 20014-15 wherein it has been provided that in case the husband and wife both are Government Servant, if possible, they should be posted at one place.

Thereafter the petitioner has preferred Writ Petition No. 941 (SB) of 2014 [Matadin Maurya Vs. State of U.P. and others] wherein this Hon'ble Court vide order dated 07.07.2014 while disposing of the writ petition directed the Consolidation Commissioner U.P. Lucknow should consider the representation by passing a reasoned order preferably within two weeks and the order so passed be communicated to the petitioner forthwith.

The certified copy of the order dated 07.07.2014 has been served on the respondent no. 2-Consolidation Commissioner, U.P. Lucknow through representation dated 11.07.2014 made by the wife of the petitioner wherein she claimed the transfer of her husband at district Allahabad and if it is not possible he may be transferred to districts Kaushambi, Varanasi and Kanpur where the posts are lying vacant.

It is also submitted that in compliance of the order of this Hon'ble Court dated 07.07.2014 and also keeping in view the option exercised by the wife of the petitioner, the respondent no.2-Consolidation Commissioner, U.P. Lucknow vide order dated 13.08.2014 altered the transfer order dated 26.06.2014 whereby the petitioner has been transferred to district Kaushambi instead of district Lalitpur which is 50 Kms away from district Allahabad where the wife of the petitioner is teaching in Arya Kanya Inter College, Mutthiganj, Allahabad and residing along with her old mother-in-law and children. In pursuance of the transfer order dated 13.08.2014, the petitioner has been relieved on 01.09.2014 to join in District Kaushambi on the post.

Again the petitioner has filed the present writ petition praying for quashing of the orders dated 26.06.2014 and 13.08.2014 passed by Consolidation Commissioner, U.P. Lucknow and further prayer is that not to transfer the petitioner from the post of Settlement Office Consolidation Allahabad to some other place.

Learned Standing Counsel submits that since the earlier transfer order dated 26.06.2014 has already been altered in compliance of the order of this Hon'ble Court dated 07.07.2014 and vide order dated 13.08.2014 the petitioner has been given posting at district Kaushambi as claimed by the wife of the petitioner, therefore, the instant writ petition lacks merit and is liable to be dismissed. He further submits that the request of the wife of the petitioner has been acceded too and as such it does not suffer from any infirmity. The order dated 13.08.2014 has not been passed by way of punishment.

In specific reply to paragraph-13 of the writ petition, learned Standing Counsel refers to supplementary counter affidavit and submits that the progress in consolidation work have been reviewed at the directorate level and in all such districts where the progress in disposal of the consolidation matters was found slow and unsatisfactory, the officers of such districts are warned to speed up consolidation work. In the financial year 2013-14 consolidation work was revised and in all such districts where the job under Sections 23, 27 and 52 of the Act, were found nil or zero, show cause notices were issued to them and charge-sheet have also been submitted before the State Government against such officer.

In so far as the matter pertaining to the cancellation of the transfer orders of certain alleged officers is concerned, keeping in view the D.O. letter dated 21.07.2014 of the District Magistrate, Ballia, the transfer of Sri Radhey Shyam Singh, Settlement Officer Consolidation has been cancelled. The transfer order of Sri B.N. Upadhyay has been cancelled since he is handicapped and also considering the D.O. letter of District Magistrate Ghazipur. The transfer of Sri Gynesh Tripathi has been cancelled keeping in view his family circumstances. The transfer of Sri Ram Kumar has been cancelled on the basis of letter dated 17.07.2014 of District Magistrate, Muzaffar Nagar as his retirement is due within two years which is less than two years.

We have heard Sri K.S. Pawar, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

From the perusal of the records, it is evidently clear that the petitioner while posted as Settlement Officer Consolidation, Allahabad in the financial year 2013-14 has failed to achieve the annual target of 7320 acre as provided under Section 23 of the Act, 15147 Gata as provided under Section 27 of the Act and further annual target of 13 villages as provided under Section 52 of the Act. Further the progress in consolidation work of the petitioner remained very slow and most unsatisfactory and due to this very reason and the complaints made by Sri Santosh Yadav, a villager before the higher authorities regarding village Naika in district Allahabad and also keeping in view the enquiry report of the two members committee dated 24.06.2014 resulting into passing of the order dated 26.06.2014 wheeby the petitioner has been transferred from district Allahabad to Lalitpur.

In the said report it has been clearly mentioned that pursuant to the undated complaint made by Sri Santosh Yadav the work of the consolidation authorities posted at district Allahabad has been enquired and found that they have assessed the ceiling land and the same have been included in the land of other tenure holders and further the land of the scheduled castes and scheduled tribes have been sold to other tenure holders of the gram sabha concerned without taking permission from the District Magistrate and this has been done only with a view to give undue advantage to Bhoo Mafias and further keeping in view all these things the transfer of the petitioner has been made to district Lalitpur.

Against the said transfer the petitioner's wife made representation for cancellation of the transfer order and thereafter petitioner preferred Writ Petition No. 941 (SB) of 2014 claiming the benefit of Clause 1-D of the transfer policy. The Division Bench of this Court vide order dated 07.07.2014 while disposing of the writ petition directed the Consolidation Commissioner U.P. Lucknow to consider the representation by passing a reasoned order preferably within two weeks and the order so passed be communicated to the petitioner forthwith.

The wife of the petitioner served a certified copy of the order dated 07.07.2014 on the respondent no. 2-Consolidation Commissioner, U.P. Lucknow through her representation dated 11.07.2014 wherein she claimed that her husband should remain posted at district Allahabad and if it is not possible he may be transferred to districts Kaushambi, Varanasi or Kanpur where the posts are lying vacant.

In compliance of the order of this Court dated 07.07.2014 and also keeping in view the option exercised by the wife of the petitioner, the respondent no.2-Consolidation Commissioner, U.P. Lucknow vide order dated 13.08.2014 altered the transfer order dated 26.06.2014 whereby the petitioner has been transferred to district Kaushambi instead of district Lalitpur which is 50 Kms away from district Allahabad where the wife of the petitioner is teaching as Assistant Teacher in Arya Kanya Inter College, Mutthiganj, Allahabad and residing along with her old mother-in-law and children. The present writ petition has been filed for quashing of the transfer orders dated 26.06.2014 and 13.08.2014 with further prayer not to transfer the petitioner except Allahabad to some other place.

In Somesh Tiwari (Supra) dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:

"16.Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases, where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

In the case of Sarvesh Kumar Awasthi (Supra), the State Government has given its undertaking and pursuant to the same the State Government has issued transfer policy dated 04.06.2014. Clause 1-D of the said policy provides that in case the husband and wife both are government servant, if possible, they should be posted at one place.

In the case of Arvind Dattatraya Dhande (Supra) the Apex Court has quashed the transfer order which was passed on the basis of some complaint holding that the transfer order is not in public interest but the said proposition is not applicable in the instant case because the transfer of the petitioner has been made as in the financial year 2013-14 the petitioner has failed to achieve the annual target of 7320 acre as provided under Section 23 of the Consolidation of Holdings Act, 15147 Gata as provided under Section 27 of the Act and further annual target of 13 villages as provided under Section 52 of the Act. Further the progress in consolidation work of the petitioner remained very slow and most unsatisfactory and further he has lost his control over the subordinate staff of the consolidation department and hence the impugned order has been passed.

So far as the matter pertaining to the cancellation of the transfer orders of certain alleged officers is concerned, the transfer of Sri Radhey Shyam Singh, Settlement Officer Consolidation has been cancelled keeping in view the D.O. letter dated 21.07.2014 of the District Magistrate, Ballia. The transfer order of Sri B.N. Upadhyay has been cancelled since he is handicapped and also considering the D.O. letter of District Magistrate Ghazipur. The transfer of Sri Gynesh Tripathi has been cancelled keeping in view his family circumstances. The transfer of Sri Ram Kumar has been cancelled on the basis of letter dated 17.07.2014 of District Magistrate, Muzaffar Nagar as his retirement is due within two years which is less than two years but in the present case no such D.O. letter has been issued in favour of the petitioner and his transfer has been made in public interest as he has failed to achieve target in the financial year 2013-14, hence no illegality has been committed by the respondents in passing the impugned orders.

The malice in law is quite a distinct factor to malice of fact. The power which is said to have been exercised on account of mala fide may be vitiated on account of either malice in fact or malice in law. In Shearer Vs. Shields, (1914) AC 808 at Page 813 Viscount Haldane described "malice in law" as under :-

"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." Again in Pilling v. Abergele Urban District Council (1950) 1 KB 636 Lord Goddard, CJ said that where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter."

Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook vs. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 said :

"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."

16. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.

The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8) The Apex Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:

"9.The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :

"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."

In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party 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 ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."

In brief the malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198.

Further in the matter of R.S. Garg Vs. State of U.P. [2006(6) SCC 430], the Hon'ble the Apex Court has observed as under:

" 'Malice' in its legal sense means malice such as may be assumed for a wrongful act done intentionally but without just cause or excuse or for one of reasonable or probable cause. The term 'malice of fact' would come within the purview of the said definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked." (para 26) In Ravi Yashwant Bhoir v. District Collector, Raigad, [AIR 2012 SC 1339],The Hon'ble the Apex court while dealing with the issue of 'Legal Malice' held:

"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." (Para-37) This Hon'ble Court in Writ Petition No. 36211 of 2013 [Const. Armourer Prakasha Nand Tiwari and two others Vs. State of U.P. and four others] in paragraph no. 25 has held as under:

"25. The oft quoted decision on this aspect is Director of School Education, Madras and others Vs. O. Karuppa Thevan and another, 1994 Supp.(2) SCC 666 but the said decision has been considered by a decision of Division Bench of this Court in Special Appeal No.1293 of 2005 (Gulzar Singh Vs. State of U.P. & Ors.) decided on 7.11.2005 and true import thereof has been explained as under:

"The case before the Hon'ble Apex Court pertains to education department and while granting indulgence clearly took into consideration the factum of absence of any urgent exigency of service in the case before it as it apparent from the following:

"We are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent." (Para-2)"

"Even otherwise the Hon'ble Apex Court in the above case observed that the children of an employee are studying should be given due weight. This shows that the matter is to be examined by the employer as to whether the transfer of an employee can be deferred till the end of the current academic session or not and not by the Court. The Court has neither any means nor sufficient material to assess as to whether there is any rule or urgency of administrative exigencies for necessitating immediate transfer or that such transfer can be deferred in a particular case. Therefore, the Hon'ble Sizngle Judge has rightly allowed liberty to the petitioner-appellant to raise this grievance before the authority concerned by making a representation, who will consider and pass a reasoned order thereupon."

The Hon'ble Apex Court in the case of M. Sumithra (Dr.) V. Bangalore University Jnana Bharathi [2006(109) FLR 592] has held that-it is immaterial whether it was done in good faith or bad faith-If exercise of such power actuated by extraneous considerations-same constitutes malice in law.

Before we advert to the submissions made by the learned counsel for petitioner, it will be necessary in the interest of justice to take note of the fact and law regarding the scope and ambit of interference in writ jurisdiction under Article 226 of the Constitution of India, while assailing an order of transfer.

The Hon'ble Apex Court in the case of E.P. Royappa V. State of Tamil Nadu [1974 (2) SCR 348] has observed as under:

"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilize 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 consideration or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala 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 services but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law that good administration, that even administrative actions should be just and fair.

Further Hon'ble Apex Court in the above cited case has held regarding violation of Articles 14 and 16 of the Constitution of India, which reads as under:

"Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable a like to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and that is hit by Article 14 and 16. Malafide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the later comprehends the former. Both are inhibited by Article 14 and 16.

In the case of Varadha Rao Vs. State of Karnataka and Others [1986(4) SCC 131], the Court has made following proposition, which reads as under:

"transfer of a government servant who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service. No government servant can claim to remain in a particular place or in a particular post unless, his appointment itself is to a specified, non-transferable post. Therefore , a transfer order per se made in the exigencies of service does not result in alteration of any of the conditions of service, express or implied, to the disadvantage of the concerned government servant. However, a transfer order which is malafide and not made in public interest but made for collateral purposes, with oblique motives and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void."

In the matter of State of U.P. and Other Vs. Gobardhan Lal [AIR 2004 Supreme Court 2165], the Hon'ble the Apex Court has observed that, " A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunal as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Court 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 consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer"

The Hon'ble Apex Court in the case of Major General J.K. Bansal vs Union Of India And Others [AIR 2005 SC 3341] in paragraph nos. 9, 10 and 11 has held as under:

"9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing 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.........."

10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under: - "Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management."

In light of the arguments advanced by both the parties and keeping in view the pleadings placed on record, it appears that initially the petitioner was transferred from district Allahabad to Lalitpur vide order dated 26.06.2014 against which Writ Petition No. 941 (SB) of 2014 [Matadin Maurya Vs. State of U.P. and others] was preferred and this Court vide order dated 07.07.2014 disposed of the writ petition directing the respondent no. 2-Commissioner Consolidation, U.P. Lucknow to consider and decide the representation of petitioner's wife dated 27.06.2014 in light of clause 1-D of the transfer policy.

The main contention of learned counsel for the petitioner is that the transfer order is punitive in nature and the representation was not disposed of by the competent authority in light of order issued by this Court which is contemptuous.

In reply learned Standing Counsel submits that the transfer order is not punitive in nature. Moreover, as per the choice of the petitioner's wife the petitioner was transferred from district Lalitpur to Kaushahmi modifying the earlier transfer order dated 26.06.2014 and therefore, no cause of action arise and the filing of the subsequent writ petition is an abuse of the process of the Court and law both.

A perusal of case law cited by both the sides indicate that the transfer policy of the Government is that a government servant should be appointed on a particular post and his services are transferable from one place to another as the transfer is an incidence of service. No government servant can claim to remain posted at a particular place or any particular post unless his appointment is specified as non-transferable post. 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.

It is well settled that transfer does not im-pinch the status of an employee. It is within the domain of the employer to determine to which place his services are required or could be utilized. Transfer order can only be interfered with if it is in contravention of any statutory rules or based on malafide considerations or has been passed by the authority not competent to transfer.

We are of the view that violation of administrative guidelines contained in the transfer policy does not give any right to an employee to assail its validity in court of law nor would the court interfere on such grounds.

As far as malice in law is concerned, it has to be shown that it is a deliberate and disregard the right of others and the order in question would attract the principles of malice in law if it was passed on irrelevant grounds.

It appears from the record that initially the transfer order was passed transferring the petitioner from district Allahabad to Lalitpur in public interest and exigencies of work vide order dated 26.06.2014. Subsequently writ petition no. 941 (SB) of 2014 was preferred in which order quoted above was passed. Thereafter the competent authority i.e. Consolidation Commissioner disposed of the representation of the wife of the petitioner altering the transfer of the petitioner from district Lalitpur to Kaushambi which is part of district Allahabad as it was carved out as a separate district from district Allahabad and it is also adjacent to Allahabad. After exchange of pleadings the petitioner has tried to show that the transfer order is punitive in nature as complaints were alleged to be made against the petitioner. The State-respondents have given a very detailed account of the complaints, constitution of committee, transferring various employees and possible initiation of disciplinary enquries as well.

As per petitioner's contention clause 1-D of the transfer policy clearly envisages that the husband and wife should be posted to the same station, if possible. We have already noted that the transfer policy is not enforceable in law. Wife of the petitioner is alleged to be working in Arya Kanya Inter College, Mutthiganj, Allahabad which appears to be an aided institution and the children are also studing in class 8th and 11th . There is nothing on record which can indicate that services of the petitioner's wife is a transferable job; rather for last so may years she is teaching in the same institution.

It also appears from the record that petitioner joined at Allahabad on 26.07.2012 and as such more than two years have already gone. As per petitioner's counsel petitioner has been relieved on 01.09.2014 and therefore in all possibility the respondent no. 5 must have joined at Allahabad and there is nothing on record to indicate that the petitioner has joined at district Kaushambi or not. Admittedly district Lalitpur was far away station but Kaushambi is adjacent district to Allahabad, which is as per the choice opted by the wife of the petitioner i.e. district Varanasi, Kaushambi and Kanpur therefore in the change circumstances no case of malice in fact or malice in law can be presumed. It is not a case that the petitioner has been transferred after his few months of posting at Allahabad. Moreover, altering the posting of district Lalitpur he has been posted to district Kaushambi as per the choice of the petitioner's wife as averred in her representation.

We find nothing on record to show that there was any political interference in the matter of transfer of the petitioner.

In the case of Ajit Kumar Vs. State of U.P.[2004 RD-AH 572] the Division Bench of this Court has observed as under:

"Writ jurisdiction is a discretionary. It is not issued merely because if it is lawful to do so. Once a factual stand is taken, it cannot be changed on any legal proposition whatsoever nor it is permissible for the Court to examine the correctness of the findings of fact unless it is found to be perverse being based on no evidence or contrary to evidence, as the writ Court exercises its supervisory jurisdiction and not of appellate forum. The purpose of the writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner."

In the case of N.K. Singh Vs. Union of India and others [JT 1994(5) SC 298], the Apex Court in paras 24 and 25 held as under:

"24.The private rights of the appellant being unaffected by the transfer, he would have been well advised to leave the matter to those in public life who felt aggrieved by his transfer to fight their own battle in the forum available to them. The appellant belongs to a disciplined force and as a senior officer would be making several transfers himself. Quite likely many of his men, like him, may be genuinely aggrieved by their transfers. If even a few of them follow his example and challenge the transfer in courts, the appellant would be spending his time defending his actions instead of doing the work for which he holds the office. Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill- advised.

25. We do hope that this would be a passing phase in the service career of the appellant and his crusader's zeal would be confined to the sphere of his official activity for improving the image and quality of public service of the police force, in which he holds a high office. By achieving that purpose, he would render much greater public service. These observations are apposite in the present context."

From the above discussions, we are of the view that the order impugned dated 13.08.2014 has been passed by the competent authority after considering the request of petitioner's wife and that too in compliance of the order of Division Bench of this Court passed in Writ Petition No. 941 (SB) of 2014. Accordingly no case for interference is made out and the writ petition is liable to be dismissed. It is accordingly dismissed.

No orders as to cost .

[B.K. Srivastava-II]    [Sanjay Misra]
 

 
Order Date :-   26th September, 2014 
 
Prajapati

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