GOVINDBHAI B. MAKWANA v. REGIONAL DIRECTOR — 1990 DIGILAW 154 (GUJ)

J. N. BHATT, J. ( 1 ) RULE. Service of rule is waived by Mr. P. S. Patel learned Assistant Government Pleader for the respondents. ( 2 ) AT the joint request of the parties and considering the peculiar facts of the case the petition is taken up today for final hearing. ( 3 ) BY this petition the petitioner has challenged the order of his transfer from Baroda to Sinore passed on 17-10-1990. The petitioner is a Class III servant and he is working as a driver with the respondents-authorities. The petitioner joined the services as a driver on 5-4-1967. He was driving ambulance van of Jamnabai Hospital at Baroda from the inception of his service. The transfer order is challenged on the ground of mala fides. It is also contended that the petitioner being a Scheduled Caste employee is being harassed by the respondents. It is further urged by the petitioner that at times he was asked to resign from the post. Later on the petitioner came to be transferred from Baroda to Santrampur in Panchmahals District. ( 4 ) THE petitioner had challenged his transfer from Baroda to Santrampur by filing Regular Civil Suit No. 1604 of 1989 in the Civil Court at Baroda. The petitioner prayed for appropriate reliefs in the civil suit. Application was also filed for interlocutory injunction. However the learned Civil Judge rejected the said application. Thereafter Miscellaneous Civil Appeal No. 312 of 1989 was filed against the said interlocutory order passed by the learned Civil Judge before the District Court at Baroda. The petitioner failed in the said appeal also. He therefore preferred a revision before this Court. The revision also came to be withdrawn. Later on the civil suit filed by the petitioner against the said transfer order was also withdrawn. ( 5 ) SUBSEQUENTLY the present petitioner had moved this Court by filing Special Civil Application No. 5120 of 1990 against the order of his transfer from Baroda to Santrampur. This Court was pleased to reject the said Special Civil Application as it was withdrawn with permission to the petitioner to make representation within one week from his posting nearer to Baroda and the respondents had agreed to consider the same. The order of this Court came to be passed on 10-9-1990. ( 6 ) A representation was made by the petitioner and it was heard by the respondents-authorities. The order of this Court came to be passed on 10-9-1990. ( 6 ) A representation was made by the petitioner and it was heard by the respondents-authorities. Thereafter the transfer order was revised and the petitioner came to be transferred from Santrampur to Leprosy Control Unit at Sinore on 17-10-1990 which is situated in Baroda District itself. ( 7 ) THE petitioner has now challenged the transfer order transferring him to Sinore. He has inter alia contended that Sinore is about 70 kms. away from Baroda and it would be difficult for him to commute from Baroda. The petitioner further contended that his wife is working as Class IV servant in a Hospital at Baroda and therefore she will be compelled to leave the job if the petitioner resumes his duties at Sinore. One more ground on which the transfer order is also challenged by the petitioner is that he has two sons one of them is studying in Commerce College in M. S. University in English Medium and another son is studying in school. At Sinore there is no English Medium School or College. On the aforesaid grounds the respondents-authorities were time and again requested to accommodate him in Baroda or somewhere near Baroda. Several representations are made by the petitioner. However the respondents-authorities did not yield to the request of the petitioner. Hence this petition. ( 8 ) NEEDLESS to mention that the jurisdictional sweep of this Court under Articles 226 of the Constitution of India is circumscribed in a very narrow compass. The Court will be at loath to interfere with the impugned order unless illegality or manifest error or misreading is successfully pointed out or spelt out. The extraordinary discretionary jurisdiction is required to be exercised in favour of the petitioner only when illegality or manifest error resulting into failure of justice is spelt out. ( 9 ) THE petitioner is a driver working in Medical Department of respondent No. 1 since long. There is no dispute about the fact that he is holding a post which is transferable. Transfer is an incidence of service. No doubt at times it entails hardship. But mere hardship in transfer ipso facto is not sufficient to invoke the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India. There is no dispute about the fact that he is holding a post which is transferable. Transfer is an incidence of service. No doubt at times it entails hardship. But mere hardship in transfer ipso facto is not sufficient to invoke the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India. A person who is holding transferable post is liable to be transferred in public interest and/or on administrative exigencies and the Court should be very slow in interfering with the transfer orders unless and until mala fides are successfully proved or pointed out. In the present case mala fides are alleged but not proved. Mere allegation of mala fide is not sufficient. There must be something concrete on record to show that the impugned transfer is the outcome of influence of mala fides. It is easy to raise plea of mala fides but it must be seriously shown so as to enable the Court to exercise extraordinary discretionary powers under Articles 226/227 of the Constitution of India. In the present case no mala fide is successfully shown. It is not the respondent-authority which has to initially or first show that the impugned order of transfer was passed in public interest or on administrative exigencies. However in the present case as it is apparent from the affidavit in reply the transfer of the petitioner was effected and ordered in the public interest and on administrative exigencies. Not only that it is passed to accommodate the petitioner. ( 10 ) IN fact it appears from the record that the petitioner was working as a driver and was driving the ambulance van of Jamnabai Hospital at Baroda. He came to be transferred from the said place as the ambulance van belonging to the said hospital was condemned and the petitioner was rendered surplus. Therefore in order to accommodate the petitioner being a surplus driver he was transferred to Santrampur in Panchmahals District. That order came to be challenged in civil suit as aforesaid which ultimately culminated into a grand failure. Consequently the petitioner moved this Court by filing Special Civil Application No. 5120 of 1990 which came to be rejected as withdrawn on 10-9-1990. That order came to be challenged in civil suit as aforesaid which ultimately culminated into a grand failure. Consequently the petitioner moved this Court by filing Special Civil Application No. 5120 of 1990 which came to be rejected as withdrawn on 10-9-1990. While disposing of the said petition this Court had directed that in the event of the petitioner making a representation to the respondents-authorities to post him at a place nearer to Baroda than Santrampur within one week the respondents shall consider the same within three weeks thereafter. Pursuant to this direction the petitioner preferred a representation before the respondents-authorities and the respondents-authorities considered it and revised the earlier transfer order and instead of Santrampur which is about 150 kms. away from Baroda the petitioner came to be transferred to Sinore in Baroda District itself which is about 55 kms. from Baroda. Thus the respondents-authorities brought the petitioner nearer and closer to Baroda by passing the impugned order of transfer. The aforesaid facts undoubtedly run counter to the allegation of mala fides. Therefore the contention that the impugned order is vitiated on the ground of mala fide cannot be sustained. ( 11 ) THE contention that the petitioner would be put to hardship on account of the impugned transfer order as he has two sons and a serving wife at Baroda also does not constitute a valid and legal ground to invalidate the transfer order. As discussed hereinbefore hardship is inherent in transfer which is an incidence of employment. That by itself would not be sufficient to quash the transfer order. In fact it is for the master to decide who should serve where how and when. Considering the administrative exigencies and public interest the master is at liberty to transfer servants and workers in the background of the overall interest of the management and the institution. He has discretion in the realm of transfer. The only inhibition is that such transfer should not be coloured or should not suffer from vice of mala fides. Therefore unless and until mala fides and that too unimpeachable mala fides apparent on the face of the record are successfully pointed out the Court should not interfere with the transfer orders. He has discretion in the realm of transfer. The only inhibition is that such transfer should not be coloured or should not suffer from vice of mala fides. Therefore unless and until mala fides and that too unimpeachable mala fides apparent on the face of the record are successfully pointed out the Court should not interfere with the transfer orders. Therefore the second contention that the children of the petitioner would suffer or wife would suffer and family life will be affected would not be sufficient to quash the transfer order and that too in a petition under Articles 226/227 of the Constitution. Therefore second contention is also totally meritless and deserves to be rejected. ( 12 ) LASTLY learned Counsel for the petitioner has vehemently contended that the impugned order is bad and void on the ground that the petitioner is posted at Sinore hospital which is under Health Department. In that it is contended that the petitioner is a driver under the Medical Department. Therefore that order placing of transferring the petitioner from Baroda to Sinore hospital which is in Health Department is incompetent and without jurisdiction. It is therefore contended that the impugned transfer order is bad and void and the impugned transfer order is again sought to be challenged with this legal missile. Prima facie this legal contention would appear to be subtle but not sustainable in the peculiar facts of the present case. Needless to mention that the extraordinary discretionary reliefs could be given to a person who does equity. The petitioner came to be transferred from Baroda to Santrampur as he was surplus in Jamnabai Hospital at Baroda. His transfer and posting at Santrampur was questioned by filing litigation which culminated into a writ petition which also was rejected. But while rejecting the petition this Court directed the respondents-authorities to consider the representation of the petitioner if made within a stipulated time for posting him nearer to Baroda. His transfer and posting at Santrampur was questioned by filing litigation which culminated into a writ petition which also was rejected. But while rejecting the petition this Court directed the respondents-authorities to consider the representation of the petitioner if made within a stipulated time for posting him nearer to Baroda. Pursuant to that direction the respondent-authority was obliged to consider and decide to bring the petitioner nearer to Baroda and that is the reason why the earlier order of transfer transferring the petitioner from Baroda to Santrampur came to be modified and he came to be transferred and posted at Leprosy Control Unit at Sinore in Baroda District itself Therefore the gesture and attempt on the part of the respondent-authority was to bring the petitioner as close and as near as it was possible at the relevant point of time near Baroda Under these circumstances could it be even conceived for a moment that the impugned transfer order transferring the petitioner to Sinore is unreasonable or invalid? The spontaneous answer would be in the negative. ( 13 ) HOWEVER in this context the learned Counsel for the petitioner has seriously placed reliance on a decision of this Court rendered in Special Civil Application No. 2049 of 1986 on 4-9-1986 Relying on the said decision it is contended that Medical Branch and Health and Family Planning Branch are two different Branches of the Health Department and inter se transfer cannot be made In the said case the petitioner was a Medical Officer working in maternity home which was under Health and Family Planning Branch and he was transferred to Medical Branch In the context of the facts of the said case this Court found that seniority of employees of both the branches being different and inter se transfer being not permissible the transfer order challenged in that petition was quashed. The scenario of facts and circumstances of the present case is altogether different. The aforesaid decision of this Court-is required to be examined in the light of the relevant attendant facts of the present case. 3 ( 14 ) THE petitioner came to be transferred to Sinore Hospital which is under Health Department because the petitioner desired a place and posting nearer to Baroda. The aforesaid decision of this Court-is required to be examined in the light of the relevant attendant facts of the present case. 3 ( 14 ) THE petitioner came to be transferred to Sinore Hospital which is under Health Department because the petitioner desired a place and posting nearer to Baroda. Therefore the impugned order was passed at the request and pursuant to the direction of this Court Under these circumstances the decision relied on by the learned Counsel for the petitioner will be inapplicable to the facts of the present case. ( 15 ) AGAIN it may be mentionerd that whenever there is conflict between interest of the individual and the interest of the administration the former has to give a way. The person who is holding a transferrable post is liable to be transferred from one place to another on administrative exigencies or on public interest. The allegation of mala fides is not established. ( 16 ) THE principles and guidelines to be borne in mind while examining the transfer order are time and again reiterated by this Court. This Court has also considered the recent decision of this Court rendered in Special Civil Application No. 3348 of 1987 rendered on 28-12-1990 and considering the guidelines and principles enumerated by this Court in the said decision and looking to the peculiar facts and circumstances of the present case there is no merit at all in this petition. Hence the petition is required to be rejected. ( 17 ) IN the result this petition is rejected Rule is discharged Looking to the peculiar facts and circumstances of the case there shall be no order as to costs rule discharged. .