Madhya Pradesh High Court
Dr.Satyendra Kumar Sharma vs The State Of Madhya Pradesh on 6 September, 2012
1Dr. Satyendra Kumar Sharma Vs. State
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P. No. 10871/2012
DR. SATYENDRA KUMAR SHARMA
VS.
THE STATE OF M.P. & OTHERS
Present: Hon'ble Shri Justice Rajendra Menon.
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Shri K. C. Ghildyal, learned counsel for the
petitioner.
Shri Rajesh Tiwari, learned Govt. Adv. for the
respondents No.1 and 2.
Shri Girish Shrivastava, learned counsel for
respondent No.3.
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Whether approved for reporting: Yes/ No
ORDER
( 06-9-2012 ) Dispute in this writ petition pertains to posting of an Incharge Principal in Government Post Graduate College, Satna. Petitioner Dr. Satyendra Kumar Sharma substantively holds a post of Principal, Degree College but working in the Govt. PG College, Satna and is now by the impugned order dated 13.7.2012 is transferred as 2Dr. Satyendra Kumar Sharma Vs. State Principal, Government Degree College, Nagaud. Likewise respondent No.3 Dr. Harsh Vardhan Shrivastava who also substantively holds the post of Principal of Degree College and is posted in Government Degree College, Nagaud, District Satna is transferred in place of the petitioner. It may be taken note of that wife of respondent No.3 is also a Principal and she is posted as Principal, Government Indira Girls Degree College, Satna. She is substantively holding the post of Professor and is Incharge Principal of the said Girls College at Satna.
2. Be it as it may be, vide order dated 13.7.2012 the State Government passed various orders of transfer posting Teachers and Principals from one institute to another. In this administrative exercise which was undertaken more than 32 persons have been transferred from one place to another as is evident from Annexure P/ 3 dated 13.7.2012. Petitioner has been transferred to the post of Principal of Government Degree College, Nagoud and he is being replaced by respondent No.3. Challenge to this transfer is made mainly on two grounds. The first ground is of malafide and it is tried to be substantiated by contending that the brother of respondent No.3 is an I.A.S. Officer in the State service and using his influence, respondent No.3 has managed a posting in the present institute. Inter alia contending that the posting of respondent No.3 in place of the petitioner is not warranted on the basis of any administrative requirement as is 3Dr. Satyendra Kumar Sharma Vs. State evident from the material available on record, it is argued that respondent No.3 is being accommodated by shifting the petitioner even though the administrative necessity does not so warrant. Accordingly allegations of malafide are attributed by contending that respondent No.3 is related to certain administrative officer and posting of respondent No.3 in place of the petitioner even though not warranted on administrative consideration, is on extraneous consideration and therefore, in view of the law laid down by the Supreme Court in the case of B. Varadha Rao Vs. State of Karnataka and others - (1986) 4 SCC 131 and observations made in para 5 thereof, transfer is unsustainable. The second ground canvassed is that in the return filed, the State Government has come out with a case that petitioner has remained at Satna for more than 29 years and he has been shifted on administrative consideration. Shri K. C. Ghildyal, learned counsel for the petitioner submits that if that be so, respondent No.3 has also remained in Satna for more than 31 years and therefore, on the ground of parity the said justification on behalf of the State Government cannot be accepted. Accordingly, contending that if the transfer file which is directed to be produced by this Court and has been produced by the State Government is perused, it would be seen that there is no request or demand made by respondent No.3 or his wife for their posting at Satna. Therefore, the posting is tainted with malafide on the grounds indicated herein 4Dr. Satyendra Kumar Sharma Vs. State above. On the aforesaid grounds, Shri K. C. Ghildyal, learned counsel for the petitioner prays for interference.
3. Shri Rajesh Tiwari, learned Government Advocate refutes the aforesaid and submits that the State Government has filed the reply and also produced the transfer file. In the return it has been submitted that petitioner has remained at Satna for more than 29 years. They have filed the service profile of the petitioner in support thereof. As far as respondent No.3 is concerned, it is stated by the Government that in the year 2008 he was transferred from Satna to Nagoud, when he has remained for more than 4 years and therefore, his request was considered and he has been brought back to Satna to accommodate the husband and wife in the same place as per policy of the State Government. It is stated by Shri Rajesh Tiwari that in doing so, State Government has not violated any statutory rules or provisions and as malafide alleged are nothing but assumption of the petitioner, it is submitted that no case is made out for interference. Placing reliance on the judgment rendered by the Supreme Court in the case of Mrs. Shilpi Bost and others Vs. State of Bihar and others - AIR 1991 SC 532 Shri Rajesh Tiwari, learned counsel tried to emphasize that merely because respondent No.3 is granted some accommodation taking note of various factors as are indicated herein above, the same cannot be a ground for interference into an administrative action 5Dr. Satyendra Kumar Sharma Vs. State particularly in the absence of malafide being made out or statutory rules or regulations being shown to be violated.
4. Shri Girish Shrivastava, learned counsel appearing for respondent No.3 refutes the contention made on behalf of the petitioner and supported the stand of the State Government and emphasized that in transferring the petitioner and posting respondent No.3 in place of the petitioner, no illegality has been committed warranting interference into the matter.
5. I have heard learned counsel for the parties and perused the record. I have also gone through the file which has been produced by Shri Rajesh Tiwari.
6. It is a case where both the petitioner and respondent No.3 who are holding the substantive post of Principal of a Degree College are fighting for being shifted 20 to 25 kms away from their present place of posting. Be it as it may, when a grievance is made, matter has to be looked into in the light of settled legal principles. Transfer is an administrative act and a writ Court exercising jurisdiction under Article 226 of the Constitution is not normally required to interfere into such orders of administrative transfer until and unless malafides in the matter and breach of statutory provisions are established. In the present case no statutory rules or regulations are shown to be violated. Case of the petitioner is that acts of malafide are available as respondent No.3 is being 6Dr. Satyendra Kumar Sharma Vs. State posted in his place only to grant him accommodation. For the said purpose it is stated that the transfer is influenced by extraneous consideration as some relative of respondent No.3, who is holding a administrative post i.e. I.A.S. Officer, has influenced the transfer.
7. Malafides have to be established on the basis of cogent evidence and material as may be available on record and merely on the basis of some vague or unsupported material a Writ Court cannot draw a conclusion about existence of malafide. In this regard the matter has been considered in a case of transfer by this Court in the case of Pareekshit Singh (Dr.) Vs. State of M.P. & Others reported in I.L.R. [2008] M.P.2849 and principles necessary for establishing a malafide are explained in the following manner :-
"18- As far as the second ground is concerned, petitioner attributes malafide and contends that transfer order is passed by the State Government because of the influence, which respondent No.4 has in the working of the State Government. A statement is made to this effect merely on the basis of some post said to have been held by respondent No.4 in some organization, which is said to be the patron organization of a particular ruling party that is in power in the State of Madhya Pradesh. Except for making the aforesaid 7Dr. Satyendra Kumar Sharma Vs. State allegation, the material available on record are not sufficient to record a positive finding with regard to the allegations made in connection with the influence of respondent No.4 in the matter of transferring the petitioner.
...
24- When the allegation of malafides are made and when the prayer is to interfere with a particular action of the State Government on the ground of malafides, the allegations of malafide have to be established and proved to such an extent that this Court can record a positive finding to the effect that malafides as pleaded are established in the given set of circumstances. In the present case, if the allegation of malafides are analysed in the backdrop of the principles laid down for holding malafides to be established, it would be seen that the grounds raised in this petition are not such on the basis of which it can be said that the grounds of malafide raised are found to be correct. Infact on the basis of the material available on record, this Court can only record a finding that petitioner has made serious allegations of malafide, but has not adduced cogent material to hold the malafides to be established.
25- The legal meaning of 'malice' and the grounds for holding an action of the State to be 8Dr. Satyendra Kumar Sharma Vs. State malafide is considered by the Supreme Court in the case of State of AP and Others Vs. Goverdhanlal Pitti [(2003) 4 SCC 739]. In the said case, malafides were attributed to the State in the matter of acquiring of land. The question of malafides is considered by the Supreme Court in paras 12, 13 and 14, in the following manner:
"(12) 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. (See Words and Phrases legally defined in Third Edition. London Butterworths 1989).
(13) WHERE malice is attributed to the State, it can never be a ease of personal ill- will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in its authoritative work on Administrative Law ( Eighth Edition at page 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seek to 'acquire land' 'for a purpose not authorised by the Act'. The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other'.
9Dr. Satyendra Kumar Sharma Vs. State (14) THE legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings."
8. If the case in hand and allegations of malafide are analyzed in the backdrop of the aforesaid requirement of law it would be seen that the allegations of malafide are not established. Petitioner assumes the existence of malafide because some relative of respondent No.3 is holding a administrative post and therefore, it is said that he has been granted posting in Satna by use of influence of his brother. There is no supporting material to hold that the aforesaid assumption of the petitioner is correct nor is the material available on record sufficient enough to hold that petitioner's assertion is based on facts which are evident from the material available on record. That apart, if the aforesaid allegations are analyzed in the backdrop of the material available in the file produced by Shri Rajesh Tiwari, it would be seen that the transfer exercise had commenced some time in the month of June 2012. More than 20 applications from various Principals through 10Dr. Satyendra Kumar Sharma Vs. State out the State were taken up for consideration as they had made request for their transfer or posting from one place to another. While these applications were being considered the Secretary of the Department sought for other proposals for transfer of the employees. It was indicated in the note sheet that respondent No.3 is also posted at Nagoud. He has remained there since 2008. His wife is a Professor in Satna and his case for posting in Satna may be considered. This aspect was taken note of and in the promotion exercise when more than 32 transfers were ordered, the respondent No.3 was also transferred in place of the petitioner. There is nothing in the file to indicate that the transfer of respondent No.3 was influenced by the interference of any other authority. It seems to be undertaken only as a routine transfer exercise when the cases of all employees who have completed more than three years service in a particular place was being reviewed. The Supreme Court in the case of Mrs. Shilpi Bose (supra) had occasion to consider the question as to whether the transfer of employee on request or to accommodate him in a particular place amounts to malafide and similar contention have been negatived and in para 4 the Supreme Court has dealt with the matter in the following manner :-
"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless 11Dr. Satyendra Kumar Sharma Vs. State the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."
Once the law on the question clearly shows that the transfer at the instance of an employee even for the purpose of granting him accommodation on his request cannot be termed as malafide, then in the absence of material available on record to show existence of extraneous consideration interference cannot be made. In the facts and circumstances of the present case, I am of the considered view that grounds of malafide alleged are not established. Respondent No.3 has been posted 12Dr. Satyendra Kumar Sharma Vs. State in Satna because his wife is also working in Satna, that also after he was posted out of Satna for about four years and while doing so it was taken note that petitioner has remained in Satna for more than 29 years and is therefore, shifted to Nagoud about 25 kms away, I find no reason to interfere into such an administrative decision as the decision seems to be fair enough and taken on administrative consideration and in the absence of malafide being made out, interference is not called for.
9. Shri K. C. Ghildyal, learned counsel for the petitioner submits that petitioner's wife is also working at Satna and therefore, the same treatment should be given to him. If that be so, it is for the petitioner to bring to the notice of the Competent authority of the State Government to consider the request of the petitioner on the aforesaid ground and pass appropriate orders in this regard passed on administrative consideration and in accordance to policy of the State Government.
10. Accordingly considering the fact that respondent No.3 after he had remained at Nagoud for about four years and further considering the fact that his posting has been done to accommodate husband and wife together then in the absence of malafide being established, it is not a fit case where interference can be made by this Court, particularly when the petitioner is only shifted 25 kms away from the present place of posting. Accordingly, in the absence of any legal ground made out 13Dr. Satyendra Kumar Sharma Vs. State for interfering with the order of transfer, this petition is disposed of granting liberty to the petitioner to represent to the competent authority in case he has any grievance or personal inconveniences in carrying out the order of transfer.
11. In view of the order of status quo granted by this Court as petitioner has not been relieved, he may now be permitted to join at the transferred place.
12. Original file returned back to Shri Rajesh Tiwari, learned Govt. Adv.
13. Petition stands disposed of with the aforesaid.
(Rajendra Menon) Judge Mrs.m i shra