Madhya Pradesh High Court
R.K. Dubey vs M.P. State Agro Industries Development ... on 1 December, 1989
Equivalent citations: (1992)IILLJ182MP, 1990(0)MPLJ669
Author: Faizanuddin
Bench: Faizanuddin
JUDGMENT
RAM PAL SINGH, J
1. By this petition filed under Articles 226 & 227 of the Constitution of India, the petitioner prays for quashing that part of the order Annexure-P2 which relates to the posting of the respondent No. 3 at Bhopal and the transfer of the petitioner to Satna from Bhopal.
2. The respondent No. 1, M.P. State Agro Industries Devlopment Corporation Limited is the 'State' within the meaning of Article 12 ot the Constitution of India. The respondent No. 2 is its Chairman and respondent No. 3 is an employee of the respondent No. 1, like the petitioner. The petitioner joined the service of the respondent No. 1 on April 2, 1975 as an Asstt. Agro Service Engineer after obtaining the B. Tech degree in Agriculture Engineering from Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur. By promotion, now being quite senior in the hierarchy of the respondent No. 1, the petitioner occupies the post of Deputy General Manager w.e.f. July 28, 1980.
3. By Annexure-P2, the petitioner was directed to be transferred as Deputy General Manager from Bhopal to Satna. By this very order Annexure-P2, the respondent No. 3, who was the Manager at the Headquarters of the respondent No. 1, was promoted to the post of Deputy General Manager and posted at Bhopal. The grievance of the petitioner in the petition is that within 14 years of his service, he has been transferred 11 times to different places of M.P. while the latest order of transfer contained in Annexure-P2 has been passed by the respondents 1 and 2 in a mala fide manner. The petitioner contends that the respondent No. 3 who was promoted to the post of Deputy General Manager could have been transferred to Satna in place of the petitioner because he had been constantly posted at Bhopal for the last 10 years - reason being that he is in good books of the Managing Director and the Chairman of the respondent No. 1. The petitioner, on receiving Annexure-P2 the order of his transfer on July 1, 1989, immediately presented a representation against the said order. This representation is Annexure-P3 and copy of another representation is Annexure-P4. The petitioner also prayed for the issuance of an interim writ for staying the operation of the order dated July 1, 1989(Annexure-P2). This Court on July 6, 1989 granted the interim writ and directed that the operation of the transfer order of the petitioner from Bhopal to Satna shall remain stayed.
4. The respondents have controverted the contents of the petition in their return and inter alia refuted the allegation that the transfer order Annexure-P2 was passed favouring respdt. No. 3. According to the respondents, the petitioner, being senior in service, experienced and well-versed in managing affairs, was found to be suitable for being posted for opening the new branch at Satna. They further contended that without any mala fide intention and keeping in view the interest of the respondent No. 1, the petitioner was transferred to Satna. According to this return, the petitioner is a technically qualified officer and has earned, comparatively best qualification and experience in the field work as a Branch Manager. Because the Board of Directors of the respondent No. 1 and the respondent No. 2 on June 26, 1989, proposed to sanction to open three new more regional offices at Satna, Sagar and Rewa, the Deputy General Manager rank officers were required to be sent to these three regional offices. As the opening of the new branch at Satna was a new estalishment and the respondent No. 3 is a less technically experienced person in comparison to the petitioner, that is why the respondent No. 3 was not assigned this job. The respondents further contended in their return that the transfer order Annexure-P2 was passed keeping in view the best interest of the respondent No. 1; and as the petitioner was found to be the fittest person for occupying the job, he was transferred to the new branch at Satna. The respondents denied that the respondent No. 3 is a favoured person.
5 It is admitted by Shri Rajendra Tiwari and Shri Bhargava, learned counsel for the parties, at the bar that the policy of the respondent No. 1 is that the officers should not ordinarily be transferred from one place to another for a period of three years. Therefore, the petitioner further contends that this policy is being breached just in order to accommodate the respondent No. 3. The petitioner further contends that he should not have, therefore, been transferred before the expiry of three years of his posting at Bhopal. The petitioner was transferred from Jabalpur to Bhopal on February 17, 1987. He remained for a period of a year and 4 months at Bhopal when he was transferred by order of the respondent No. 1 and No. 2 (vide Annex-P2) on July 1, 1989 to Satna.
6. In any service when the relationship is that of master and servant, transfer, retirement, promotion etc. are incidents of service. Usually the master has full power to transfer his servant wherever he wants because transfer is ordered looking to the character and quality of work the servant does. Thus, if the master is of the opinion that a particular servant is required at a particular place for a particular duty, the master has a right to transfer such a servant from one place to another. This power of the master is not absolute and should not be exercised capriciously. At the same time, the master should avoid to transfer his servant simply to accommodate the other favoured servant. Furthermore an order of transfer of a servant should be passed in public interest or in the interest of the institution itself where the servant serves. Exigencies of administrative purpose also sometimes pursuade the master to transfer the servant from one place to another. Orders of transfer of a Govt. servant like any other adiministrative or executive orders are passed invariably for administrative purposes or in public interest. Such orders normally are outside the purview of examination by courts of law. But an executive decision or action or an administrative decision is liable to be struck down if it is used mala fide or for a collateral purpose.
7. Keeping the settled principle of law in view, we now proceed to consider whether Annexure-P2 order passed by the repondents 1 and 2 transferring the petitioner from Bhopal to Satna and not transferring the respondent No. 3 from Bhopal, was passed with oblique motive and mala fide or was passed in pulic interest on administrative grounds. We shall have to keep out from consideration the facts which are disputed by the parties. Petitioners and the respondent No 3 both are designated as Deputy General Manager in the heirarchy of the respondent No. 1. Undoubtedly the respondent Nos. 1 & 2, in transferring the petitioner from Bhopal to Satna, have kept in view as to which of the Deputy General Manager out of the two will be more suitable for the job at Satna where new branch is to be opened. According to the respondent No. 1, the experience, talent and efficiency of the petitioner for the proposed job was better than that of the respondent No. 3. But they have failed to consider that the petitioner had been on the move eleven times on transfers in 14 years of his service. The respondents Nos. 1 and 2 have also failed to consider, at the time of passing order Annexure-P2, that the petitioner has not completed his three years of posting at Bhopal. The petitioner, when filed his representation for reconsideration of order Annexure-P2, the respondents 1 and 2 did not pass any order. If the stand of the respondent Nos. 1 and 2 is bona fide, then they could have immediately passed the orders on the representations of the petitioner that the petitioner due to his efficiency, experience and talent was the better suited person for the job at Satna in comparison to the new promotee, respondent No. 3. When a servant places his representations in writing before the master, the master must pass a considered and just order upon it. If the master keeps silence and avoids to perform this just duty promptly, there the doubt is cast upon the impartiality and bona fide of the master. If the employee is rich in experience, talent and efficiency, then it becomes all the more necessary for the master to consider dispassionately his grievances contained in his representations.
8. It is an admitted position that the respondent No. 3 is posted at Bhopal for the last ten years in different capacities, while working with the respondents 1 and 2. The reason for not transferring him from Bhopal to Satna appears to be that he is a recent promotee and will not be suitable like the petitioner, to be posted at Satna. If the respdt. No. 3 lacks in talent, experience and efficiency to perform the duties of a Deputy General Manager, then he should have been boldly posted at Satna so that like the petitioner, he may gain talent, experience and efficiency to perform the new challenges. New promotees will never acquire experience, talent and efficiency if they are kept in cosy coaches under the apron of the mother-master.
9. The petitioner has contended that as he holds the post of Secretary in the Officers' Union, the respondent Nos. 1 and 2 are annoyed with him and that is why as a measure of punishment, he has been unceremoniously shunted from Bhopal to Satna by order Annexure-P2. He has further contended that the respondent No. 3 is in good books of the officials of the respondent No. 1 and that is why the respondent No. 3 has not been sent out of Bhopal for the last ten years. We shall refrain from making any observation with regard to these allegations. But the position stands that the petitioner has been transferred before he could complete his three years' posting at Bhopal. It also becomes clear that the respondents Nos. 1 and 2 have failed to consider the representations filed by the petitioner. It is also apparent that the respondent No. 3 who is also a Deputy General Manager like the peti-tione, has not been transferred out of Bhopal for the last ten years.
10. In Gujarat Electircity Board v. Antmaram Sungomal Poshani, (1989-II-LLJ-470), the apex Court has observed (pp 472-473):
"Whenever a public servant is transferred, he must comply with the order but if there be any genuine difficulty in proceeding on transfer, it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled, the concerned public servant must carry out the order of transfer."
When the petitioner filed his representations against the transfer order Annexure-P2 before the respondents Nos. 1 and 2, the said respondents sat over the representations expecting the petitioner to comply with the order of transfer. When the petitioner perceived that his representations are not being considered, he knocked the doors of this Court for redress and this Court, by passing and interim writ, stayed the operation of order Annexure-P2.
11. This Court is always reluctant to interfere in the matters of transfer of a public servant but if it appears that the order of transfer is lacking in bona fide, then for the sake of justice and fair play, this Court grants the relief. B. Vardha Rao v. State of Karnataka (1986-II-LLJ-516), Shanti Kumari v. Regnl. Dy Director, Health Services, Patna (1981-II-LLJ-312) and Prakash Chandra Saxena v. State of M.P. (1980-II-LLJ-322) referred.
12. Consequently, this petition is allowed to the extent indicated herein below:
(i) It is directed that the respondent Nos. 1 and 2 shall consider the representations filed by the petitioner and pass appropriate orders within a period of four months.
(ii) The petitioner shall be permitted by the respondents Nos. 1 and 2 to complete his three years posting at his present post at Bhopal.
This petition is thus finally disposed of. The parties shall bear their own costs.