R. P. Tewari v. Commissioner, Sales Tax, U. P — 1986 DIGILAW 573 (ALL)

JUDGMENT A.N. Dikshita, J. - The petitioner by means of this petition filed under Article 226 of the Constitution has challenged the order of transfer dated 5.7.86 and has prayed for issue of a writ of certiorari for quashing the same. 2. The facts as are revealing from the petition are; That petitioner on being selected as the Sales Tax Officer, Grade-II by the U.P. Public Service Commission in the year 1977 was initially posted as Sales Tax Officer, Grade-II at Jaunpur and has served the department then at several places to the utmost satisfaction of his superiors. He has thus earned good entries in the service record. The petitioner on becoming of the President of the Sales Tax Officers Grade-II Sangh has been espousing the cause of Sales Tax Officer, Grade-II with the department. In his capacity as President of the Sangh he wrote several letters to the Commissioner, Sales Tax U.P. from Muzaffarnagar where he was posted which has invited the annoyance of the Commissioner, Sales Tax who started bearing a grudge against the petitioner. The petitioner was transferred from Kairana check-post, district Muzaffarnagar to Gopiganj check-post in Varanasi district in July 1985 and by the impugned order has now been transferred to the Naubatpur check-post district Varanasi thus giving rise to the instant petition. Two supplementary affidavits have also been filed by the petitioner. The first supplementary affidavit disclosed that the petitioner was transferred in June 1979 from Jaunpur to Allahabad and from there in June 1980 to Kairana check-post, district Muzaffarnagar. The petitioner some time in March 1982 was assigned the work in connection with the prosecution of the cases pending in the High Court and, thereafter in 1982 was transferred as Assistant Commissioner (Judicial), Muzaffarnagar. He was given another assignment in mobile squad at Muzaffarnagar in July 1983 and after a year he was transferred from the mobile squad to Kairana check-post and then in June 1985 to Gopiganj, district Varanasi. The petitioner in the regular chain of transfer was transferred to Desari Mau Rani in Jhansi region-vide order dated 23.6.86 but on a representation being made to the Sales Tax Commissioner the order transferring him to Jhansi region was rescinded and the petitioner was posted in the Varanasi district though not at Gopiganj check-post but Naubat Ganj check-post. The petitioner in the regular chain of transfer was transferred to Desari Mau Rani in Jhansi region-vide order dated 23.6.86 but on a representation being made to the Sales Tax Commissioner the order transferring him to Jhansi region was rescinded and the petitioner was posted in the Varanasi district though not at Gopiganj check-post but Naubat Ganj check-post. In the other supplementary-affidavit the petitioner has disclosed that the Sangh is registered and is recognised by the State Government. It has further been disclosed that the Sangh had no permanent office at any particular place but wherever the President of the Sangh is posted, the office is opened there. The case of the petitioner in a narrow compass is thus that the petitioner is being harassed at the hands of the Commissioner, Sales Tax U.P. and the impugned order of transfer is the outcome of malice and arbitrariness he has earned the displeasure of the Commissioner, Sales Tax in view of the fact that he had espoused the cause of the Sangh of Sales Tax Officers Grade-II from time to time. The petitioner has come out with a case that the impugned order of transfer at the hands of the Commissioner, Sales Tax is punitive inasmuch as the petitioner is being harassed by transferring him from one place to another from time to time. 3. This writ petition is being disposed of at the admission stage as we consider it not to be a fit case for interference in the extraordinary jurisdiction of this Court by invoking the aid of Article 226 of the Constitution. 4. Learned counsel for the petitioner Sri S.P. Gupta has very strenuously urged that the order dated 5.7.86 transferring the petitioner to Naubatpur check-post deserves to be quashed. Learned counsel for the petitioner has also urged that the impugned order of transfer is the outcome of malice and is arbitrary. He has further urged that the order is punitive. We find no merit in these submissions. The factum of malice or animus is not the least emerging from the record. There is nothing on record to show that the impugned order of transfer, transferring the petitioner to Naubatpur check-post is mala fide or is the result of any ill-will or grudge borne by the Sales Tax Commissioner, U.P. The allegations are too vague and in any case do not reveal any malice or bias. There is nothing on record to show that the impugned order of transfer, transferring the petitioner to Naubatpur check-post is mala fide or is the result of any ill-will or grudge borne by the Sales Tax Commissioner, U.P. The allegations are too vague and in any case do not reveal any malice or bias. In a democratic set up governed by the rule of law unless it is shown categorically and conclusively that the impugned order of transfer is reflective of arbitrariness or the misuse of power it cannot be said that the order of transfer is arbitrary or mala fide. The Government from time to time has given recognition to the various associations and unions of its officers and employees and such an attitude on the part of the Government is indicative of the fact that instead of individual grievances being espoused by its officers or employees the association or the union may seek redressal of the grievances of its constituents or members. It appears to be highly incomprehensible that because the petitioner being the President of the Sangh had written letters espousing the cause of the members of the Sangh thus inviting the wrath and fury or even the displeasure of the Sales Tax Commissioner, U.P. The relations do not get embittered in such situations and more so when the Government itself had permitted such organisation to function for the welfare of its officers and employees. During the tenure of his service the petitioner was posted at Jaunpur, Allahabad, Muzaffarnagar and Varanasi. The attributes of mala fide or bias or arbitrariness against the respondent no.l do not appear to be convincing. Had that been so the respondent no. 1 would not have rescinded the order dated 23.6.80 by which the petitioner had been transferred from Gopiganj check-post district Varanasi to Desari Mau Rani, Jhansi Region. This order dated 23.6.80 on the respresentation of the petitioner was rescinded and modified and the petitioner was allowed to stay at Varanasi though the assignment of a different check-post i.e. from Gopiganj check-post, Varanasi to Naubatpur check-post, Varanasi was given to the petitioner. 5. This order dated 23.6.80 on the respresentation of the petitioner was rescinded and modified and the petitioner was allowed to stay at Varanasi though the assignment of a different check-post i.e. from Gopiganj check-post, Varanasi to Naubatpur check-post, Varanasi was given to the petitioner. 5. The State Government or the high echelons of the department have to look to the exigency of service and unless it is categorically established that behind the mask of innocence lay a spirit of sweet revenge or desire to get rid of an inconvenient employee, it cannot be said that the change in assignment in the same district is punitive. Activism is becoming the rule with the officers and the employees of the State Government to protest against the transfers on the ground of mala fides. However, the petitioner has nowhere shown as to how the Sales Tax Commissioner was displeased with him or wanted to harass him or subject him to some punitive action. The date when the petitioner was elected President has also not been disclosed. It is difficult to conceive as to who was the Sales Tax Commissioner who bore grudge or animus against the petitioner. The petitioner has himself failed to disclose to the Court such details. 6. Further it has not been shown as to how the power of transfer has been abusively exercised by the respondent in disregard to the interest or the administration. There is nothing on record even to suggest that the order of transfer is the outcome of an extraneous or irrelevant consideration or of mala fide reasons except that because the petitioner is the President of the Sangh hence has earned the displeasure of the Commission or, Sales Tax. There is not even a whisper as to how the Commissioner Sales Tax has abused the power when the Sales Tax Commissioner on a simple representation has instantly rescinded the order of transfer thus posting the petitioner to district Varanasi where he was posted. Such a decision to recall the order transferring the petitioner from Gopiganj check-post district Varanasi to Desari Mau Rani, Jhansi region clearly betrays the good conscience of the respondent no. 1. 7. It cannot be ignored that the petitioner on his own showing as a good officer may have become indispensable to the department and his services are required for a corrective purpose. 1. 7. It cannot be ignored that the petitioner on his own showing as a good officer may have become indispensable to the department and his services are required for a corrective purpose. It may be on account of the administrative exigencies and looking into the excellent performance of the petitioner that he may have become indispensable and the department in order to finds solution had posted him on such posts as were considered expedient looking to the administrative wisdom and sagacity. 8. We are thus satisfied that the impugned order of transfer, transferring the petitioner to Naubatpur check-post district Varanasi is neither the outcome of mala fides nor an exercise in the abuse of the powers nor it is punitive. 9. It was then urged on behalf of the petitioner that the functioning and the activities of the Sangh would get disrupted on account of the posting of the petitioner at Naubatpur cheek post district Varanasi. Admittedly the office of the Sangh is attached to the President and such office is situate at the place where the President is posted. We are unable to comprehend as to how the functioning of the office of the Sangh would in any way be disrupted when the petitioner is posted in the district of Varanasi where the office is also situate. 10. Learned counsel for the petitioner has strenuously urged that by the impugned order of transfer Articles 14 and 16 as enshrined in the Constitution have been ruthlessly violated. We are unable to be persuaded by such submissions. Article 16 gives effect to the doctrine of equality in the matter of public employment. It guarantees equality of opportunity for all citizens in the matter of employment or appointment to any office. Article 14 provides that any person shall not be denied equality before the law or the equal protection of law. Article 14 is the genus while Article 16 is a species. The principle informing both Articles 14 and 16 is equality and inhibition against discrimination. In the case of E.P. Royappa v. State of Tamil Nadu and another, AIR 1974 SC 555 . It has been held as under: "Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. The principle informing both Articles 14 and 16 is equality and inhibition against discrimination. In the case of E.P. Royappa v. State of Tamil Nadu and another, AIR 1974 SC 555 . It has been held 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 alike 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 Mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16" Relying his submission on the above case learned counsel for the petitioner has urged that the action of the respondents in transferring the petitioner is arbitrary and smacks of mala fide. We are unable to agree that the impugned order of transfer is either arbitrary or the outcome of bad faith. As shown above the Sales Tax Commissioner, respondent no. 1 immediately on a mere innocent represent action modified the order of transfer of the petitioner and allowed him to continue in the Varanasi district though on a different check-post. The transfer of the petitioner from the Gopiganj check-post to Naubatpur check-post may be on account of administrative exigencies and once the power vests with the respondent no. 1 to order for the transfer of the petitioner then it cannot be said that such an order is reflective of some animus against the petitioner has failed to satisfy us that such an order of transfer involves any violation of any of his legal rights much less a constitutional right. The displacement of the petitioner may cause some inconvenience but that by itself would not give him any right to hold the post at the Gopiganj check-post. Learned counsel for the petitioner then placed reliance on the case of P. Pushpakaran v. Chairman, Coir Board, 1979 SLR 309 . The displacement of the petitioner may cause some inconvenience but that by itself would not give him any right to hold the post at the Gopiganj check-post. Learned counsel for the petitioner then placed reliance on the case of P. Pushpakaran v. Chairman, Coir Board, 1979 SLR 309 . This authority is of no assistance to the petitioner. The impugned order of transfer is neither punitive nor by way of any punishment to get rid of any inconvenient employee. The view as propounded in the case of P. Pushpakaran v. Chairman, Coir Board (supra) is thus of no avail to the petitioner as the facts therein are at variance with the controversy as alleged before us. While relying in the case of P. Pushpakaran v. Chairman Coir Board (supra) the petitioner has failed to satisfy us as to how the impugned order of transfer would be deemed to be that of punishment or of a sweet revenge. Merely because the petitioner was espousing the cause of the officers of his service which attracted the displeasure of respondent no. 1 appears to be inconvincing as shown above. Learned counsel for the petitioner then placed reliance on the case of P. Damodaran v. State of Kerala, 1982 (1) S.L.R. 563. This citation is again of no avail to the petitioner. It has been found in the case of P. Damodaran v. State of Kerala (supra) that a person's act is mala fide if he exercises powers perversely, unauthorisedly, improperly or unreasonably. Such a situation has not been shown to have happened in the instant case while ordering the transfer of the petitioner from one check-post to another in the same district. There is nothing to show that the respondent no. 1 acted with extraneous consider rations or by any irrelevant one. It is very difficult in the circumstances to tear the veil of deceptive innocuousness to find out the real object of transfer. The action of the respondent no. 1 cannot be attributed to be a colourable exercise of powers much less an abuse of power based upon the considerations which may be termed as extraneous or irrelevant. Transfer may often enjoying vicissitudes of service and howsoever unsavoury or inconvenient it may be a public servant cannot be permitted to assert his right to stay at a particular place. 11. Transfer may often enjoying vicissitudes of service and howsoever unsavoury or inconvenient it may be a public servant cannot be permitted to assert his right to stay at a particular place. 11. The transfer of an employee may be on various reasons, may be due to exigency of service or due to administrative reasons or may be in public interest. It is very difficult to find out the exact reason which prompted the State Government to order for such a transfer. In the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna and others, AIR 1981 SC 1577 the Supreme Court held as under: "Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Courts cannot interfere in such matters." 12. Disenchantment to the orders of transfer is attaining alarming proportions and militant exercise so much so that the working of the department may get paralysed. An officer cannot claim that he has a right to be posted at a particular place. This Court under Article 226 of the Constitution would not allow the display of such chauvinistic tendencies which tend only to frustrate the working of the department. The officers or the employees of the Government cannot be permitted to canvass that every order of transfer has to be rescinded. The distressing trend to browbeat the orders of transfer do not require any protection. Such an interference by this Court in the matter of transfer is neither required nor justified. 13. If an employee is transferred from one post to another or from one district to another in public interest, it may not be on administrative ground but required by the exigency of the situation or necessity, it cannot be termed as an order with some extraneous considerations. The order of transfer dated 23.6.1983 (Annexure-5 to the writ petition) was passed in public interest. The modification of such an order by the order dated 5.7.86 whereby the petitioner was allowed to stay at Varanasi though at a different check-post clearly shows that the respondent no.l acted with bona fide intention. 14. In case of Shanti Kumari v. Regional Dy. Director (supra) the Supreme Court has observed that in such circumstances an employee may represent to the higher authorities for the redressal of his grievance. 14. In case of Shanti Kumari v. Regional Dy. Director (supra) the Supreme Court has observed that in such circumstances an employee may represent to the higher authorities for the redressal of his grievance. In case the petitioner approaches the higher authorities with a representation, it is hoped it would be considered on merits. In view of these circumstances and the admitted facts on record we are clearly of the view that this is not a fit case for interference while exercising our extra-ordinary jurisdiction under Article 226 of the Constitution.