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(31 / 08 / 2010) Challenging the order annexure P-1 dated 15/06/2010, by which petitioner is transferred from the post of Incharge, Chief Medical and Health Officer Seoni to the post of Specialist in District Hospital Seoni, petitioner has filed this writ petition.

2. It is the case of petitioner that after transferring the petitioner, respondent No.3, Dr.Y.S. Thakur, has been transferred from Dindori to Seoni and the transfer is effected only to grant adjustment to respondent No.3 and malafidely remove the petitioner from the post of Chief Medical and Health Officer, Seoni. Interalia contending that respondent No.4 is a local M.L.A. of Lakhanadon Constituency, in District Seoni, respondent No.5 is representative of M.L.A. and as petitioner has filed complaint against respondent No.5 on the basis of which certain offences has been registered against respondent No.5 and the entire exercise of transferring the petitioner is because of aforesaid interference by respondent Nos.4 & 5, petitioner has filed this writ petition.

6. Respondent No.3 and respondent Nos.4 & 5 have filed separate replies and so far as respondent No.3 is concerned the said respondent has categorically denied interference by his wife in his posting to Seoni. It is pointed out by Shri A.M. Trivedi, learned Senior Advocate appearing for respondent No.3 that he was appointed in the year 1983, he remained posted in the tribal area of district Chhatarpur from 1983 upto 1988, between 1988 to 2004 he remained posted in the Tribal Blocks of Lakhnadon where he worked as Medical Officer, during this period respondent No.4 was not M.L.A. nor holding any post of profit. It is stated that immediately after respondent No.4 was elected as a Member of the Legislative Assembly in January, 2004, respondent No.3 was shifted from Lakhnadaun in February, 2004 after his promotion as a District Health Officer and between February, 2004 to July, 2005 he remained posted in District Dindori as District Health Officer. Thereafter when he was promoted as Chief Medical and Health Officer he continued to remain in Dindori. It is pointed out that right from the year 2004 till passing of the impugned order respondent No.3 has remained in Dindori and after a period of more than 6 years posting in Dindori he is transferred. Contending that transfer is nothing to do with the office held by his wife and he is posted on regular basis on administrative consideration on the substantive post of Chief Medical and Health Officer held by him, accordingly, respondent No.3 resists the claim of the petitioner.

9. I have heard learned counsel for the parties and perused the record, so also the original file of transfer as produced by Shri S.S. Bisen. On a perusal of original file it is seen that on 14/06/2010 a meeting of officers of the department was held along with Ministers and a proposal of transferring 33 Chief Medical and Health Officers and Specialists were placed for consideration. Proposal was approved by the Director and thereafter the Principal Secretary and Minister of Department approved the proposal and the impugned order has been passed. So far as allegation and complaint made with regard to working of petitioner and the malafide of respondents no.4 & 5 are concerned, a perusal of the original file indicates that no such complaints are available on record and there is nothing to indicate that cognizance of any such complaint is taken and transfer effected. Petitioner has tried to challenge his transfer mainly attributing malafide to respondent No.4 and the adjustment granted to respondent No.3. If the material adduced by the petitioner in this regard are perused, except for filing a complaint made by the petitioner against respondent No.5 vide annexure P-4 and certain news item published in the newspaper, petitioner has not adduced any cogent material or any material to show that the transfer is ordered due to the complaint made by respondent No.4 at the instance of respondent No.5, the documents filed by petitioner along with petition are his grievance and complaint against respondent No.5. However, the role played by respondent No.5 and help extended to respondent No.5 by respondent No.4 in harassing the petitioner is not born out from the record, nor the original file. On the contrary it is seen that petitioner is not a duly appointed Chief Medical and Health Officer, he is holding the lower post of Specialist, whereas respondent No.3 is substantively appointed as Chief Medical and Health Officer. May be that respondent No.4 is an M.L.A. and she is the wife of respondent No.3, but the career graph of respondent No.3 indicates that he has remained posted in district Chindwara from the year 1983 to 1988 thereafter he was in Lakhnadaun District Seoni, where he worked as Medical Officer during period 1988 to 2004 in January, 2004, respondent No.4 was elected as M.L.A. and petitioner was transferred out of Lakhnadon. He was posted to Dindori initially he was holding the post of District Health Officer in Dindori, from which post he was promoted on 01/09/08 as the Chief Medical and Health Officer and after such promotion he continued to remain posted in Dindori. Dindori is indicated to be a Scheduled Tribal area and respondent No.3 has remained in Dindori right from 2004 upto the date of passing of the impugned order. There is nothing available on record on the basis of which it can be held by this Court that the posting of respondent No.3 on the post of Chief Medical and Health Officer, Seoni after having completed a period of more than 6 years posting in Dindori is manipulated by respondent No.4 in any manner whatsoever. The allegation levelled by petitioner in this regard are not substantiated by any cogent evidence or material. On the contrary the records indicate that petitioner who is a specialist is transferred to another hospital in the same place of Seoni and, he is replaced by a duly appointed Chief Medical and Health Officer. Contention of the petitioner the he is senior to respondent No.3 cannot be accepted for the simple reason that respondent No.3 is holding the higher post of Chief Medical and Health Officer and petitioner is holding the lower post of specialist. That being so, it is the case where respondent No.3 who was working in the Dindori for six years is transferred in his substantive capacity on the post hold by him at Dindori and the evidence or material available on record is not sufficient to hold or attribute any malafide in posting petitioner to Dindori. Merely because respondent No.4, happens to be an M.L.A. and husband of respondent No.3 that by itself is not a ground to attribute malafide and hold the same to be established.

14. If the malafide alleged in the present case is viewed in the light of the aforesaid requirement of law, it would be seen that except for making vague allegation on the assumption, as respondent No.4 happens to be an M.L.A. and husband of respondent No.3, petitioner assumes that the transfer is effected on the malice of respondent, however, there is no proof or cogent evidence in support thereof, therefore, it is a case where the malafide alleged is not established.

15. Even though in the return filed by respondents No.4 & 5 certain complaints and documents pertaining to irregularity committed by the petitioner while discharging duty of Incharge Civil Hospital Dindori have been filed, but original record of transfer does not indicate that action is taken on the basis of this report. The report submitted are undertaken after the order of transfer dated 15/06/2010 was issued.