Kishan Singh v. State of Rajasthan — 1993 DIGILAW 367 (RAJ)

Honble SAXENA, J.—This Special Appeal has been directed against the order dated 2.03.1993 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 2372/1992, whereby petitioners writ petition challenging his transfer order dated 16.4.1992 (Anncx.6) was dismissed. (2). The appellant, who is a Ranger Grade-I (Gazetted), was transferred by the Principal Chief Conservator of Forests (in short PCCF), Rajasthan, Jaipur (respondent No. 2) by office order dated 24lh March, 1991 (Annex.5) from the post of Range Officer, National Desert Park, Jaisalmer to the post of Range Officer, Forest Range, Balesar, District Jodhpur. Thereafter the PCCF vide office order dated 16.4.1992 (Anncx.6) in the public interest transferred the appellant as Range Officer, Barmer in National Desert Park. The appellant filed a writ petition challenging the impugned transfer order Annexure-6 on the ground that it was without jurisdiction and without authority being in violation of the guide-lines issued by the State Government dated 23.9.1989 (Annex. 1) as no prior approval of the State Government was obtained. The appellant also contended that he was transferred to accommodate Shri Mahendra Singh Rathore (respondent No. 3) under the political pressure of (he then Energy Minister. The learned Single Judge after hearing the parties observed that the impugned transfer order did not suffer from any vice and more so it was purely an administrative matter, which did not warrant any interference. Therefore, the learned Single Judge found the writ petition merit-less and accordingly dismissed the same. Hence, this appeal. (3). We have heard Shri K.N. Joshi, the learned counsel for the appellant and Shri M.S. Singhvi, the learned counsel appearing on behalf of the Caveator respondent No. 3 at the admission stage and perused the relevant record. (4). The first contention of Shri K.N. Joshi is that the order of learned Single Judge is non-speaking and the same has been passed without application of mind and, therefore, it deserves to be quashed. We are not at all impressed by this argument, because the learned Single Judge has specifically observed that he was satisfied that the impugned transfer did not suffer from any vice more so it was purely an administrative matter and that writ petition was merit-less. Hence, it is abundantly apparent that the impugned order is not cryptic but a speaking order, which has been passed with due application of mind. Therefore, the first contention of the appellant fails. (5). Hence, it is abundantly apparent that the impugned order is not cryptic but a speaking order, which has been passed with due application of mind. Therefore, the first contention of the appellant fails. (5). The next contention of Shri K.N. Joshi is that the petitioner was working as Range Officer, Forest Range, Balesar since March, 1991 and had not completed 2 years of service tenure, that as per allocation of duties and responsibilities between the PCCF and CCF vide State Governments letter dated 23.9.1989 (Annex.1), the transfer/posting of Rangers Grade-I, (Gazetted), who have been at one place of posting for over two years period will be done by the PCCF and in case of less than two years period, the PCCF will seek prior approval of the State Government. According to him, the PCCF did not procure the prior approval of the State Government in passing the impugned transfer order. Therefore, the impugned transfer order is unauthorised and without jurisdiction. According to him as per endorsements made in Annexure-6, the impugned transfer was made in compliance of the U.O. note dated 28.2.92 of the Forest and Environment Minister, Rajasthan, Jaipur. This fact amply proves that petitioners transfer was made due to political pressure. He has cited ihe following cases Narpat Singh Rajpurohit vs. State of Rajasthan (1),B.S. Minhas vs. Indian Statistical Institute & Ors. (2), Satya Narayan vs. Stale of Rajaslhan & Ors. (3) and Rajendra Roy vs. Union of India & anr. (4). (6). On the other hand, Shri M.S. Singhvi has strenuously contended that the PCCF is the appointing authority for the Rangers Grade-1, that the alleged guide-line of transfer docs not have any statutory force and as such the same is not enforceable in the court. He has submitted that the power of the PCCF can not be curtailed or fettered by administrative instructions by allocating the duties and responsibilities between the PCCF and CCF. Hence, the impugned transfer order (Annex.6) is not at all without jurisdiction. He has submitted that even the impugned transfer order was ratified by the Stale Government by its order dated 19.5.1992 (Annex.R/3). According to him, the impugned transfer order has been made in public interest, that the appellant has no vested right to remain at a particular place and the allegations of mala fide or political pressure are clearly vague and without foundation. According to him, the impugned transfer order has been made in public interest, that the appellant has no vested right to remain at a particular place and the allegations of mala fide or political pressure are clearly vague and without foundation. He has relied on following cases Ghisu Lal vs. The Union of India (5), S. Ganguly vs. Union of India & Ors. (6) and Mrs. Shilpi Bose & Ors. vs. State of Bihar & Ors. (7). (7). We have given our thoughtful consideration to the rival submissions made before us. Admittedly the appellant and respondent No.3 are Rangers Grade-I (Gazetted) and members of Rajasthan Forest Subordinate Service. Rule 2(a) of the Rajasthan Forest subordinate Service Rules, 1963 lays down that "appointing authority" means the Principal Chief Conservator of Forest/Chief Conservator of Forest and includes a person, who is authorised by him as per Civil Services (Classification, Control and Appeal) Rules, 1958 to make appointments to Forest Subordinate Service posts. There fore, PCCF (respondent No. 2) is the appointing authority of Rangers Grade-I. The appointing authority has the power to transfer the Ranger Grade-I under Rule 20 of the Rajasthan Service Rules, 1951. It is true that the State Government vide its order dated 23.9.1989 (Annex. 1) has allocated duties and responsibilities between the PCCF and CCF and it has been mentioned that the transfer/posting of Rangers Grade-I (Gazetted), who has been at one place of posting for over two years will be done by the PCCF and that in case of less than two years period, the PCCF will seek prior approval of the State Government. The allocation of duties and responsibilities between the PCCF and CCF is merely an administrative instruction/order and it does not have a statutory force. Therefore, simply because the PCCF did not procure the prior approval from the State Government, it can not be held that PCCF had no jurisdiction to transfer the appellant vide order Annexure-6 or that the impugned order was unauthorised, illegal or without jurisdiction. It is needless to mention that such guide-lines have no statutory force and are not enforceable particularly at the instance of the affected officer. The allocation of duties and responsibilities incorporated in Annexure-1 do not create any vested right in the appellant and he is not entitled to rely on those instructions to challenge the impugned transfer order. (8). It is needless to mention that such guide-lines have no statutory force and are not enforceable particularly at the instance of the affected officer. The allocation of duties and responsibilities incorporated in Annexure-1 do not create any vested right in the appellant and he is not entitled to rely on those instructions to challenge the impugned transfer order. (8). In B.S. Minhas vs. Indian Statistical Institute & Ors. (cited supra), it was held that policies framed by authorities for procedural fairness, even if not having statutory force, are binding and that it should be followed to avoid arbitrariness and in the interest of fair play in making appointments. In that case the policy required publicising the vacancies before appointment. Evidently that was not a case of transfer. Therefore, the facts of that case are clearly distinguishable and the same does not render any assistance to the appellant. (9). In Narpat Singh Rajpurohits case (cited supra) the petitioner, a Ranger Grade-I, was earlier working at Phalodi. However, on account of his family circumstances, on his request, he was transferred vide office order dated 13.9.1989 to Bajju in District, Bikaner, where he joined his duties on 26.9.1989 and was working there. However by another order dated 29.9.1989, the PCCF cancelled his earlier transfer order dated 13.9.1989. The contention of the petitioner was that since he had already joined at Bajju in pursuance of order Ex.1, he could not be transferred unless the permission was sought from the State Government be cause he had not completed two years tenure. It was held by Honble Justice Mr. J.R. Chopra that since the petitioner had already joined his duties at Bajju in pursuance of earlier transfer order dated 13.9.1989, the said order had been executed, therefore, the same could not be cancelled and that a fresh transfer order had to be issued. It was also observed that no transfer could be made during election period and that even if the respondents wanted to transfer the petitioner then such transfer order could be made after election process was over. However, in the head notes edited and published in WLR 1991 (Raj.)-136 (supra), it appears that the contentions raised on behalf of the petitioner have been incorporated. However, in the head notes edited and published in WLR 1991 (Raj.)-136 (supra), it appears that the contentions raised on behalf of the petitioner have been incorporated. In Narpat Singhs case the learned Single Judge has not opined that when the executive instructions/guide- lines laying down certain guide-lines regarding transfer have been issued by the Government, it is not open to the State not to follow those guide-lines or instructions and to act in disregard of such instructions. It was also not decided by the learned Single Judge that any act in disregard of such instructions can be challenged and it would be open to scrutiny by the courts. The learned Single Judge has also not held that since no permission from the State Government was obtained, the impugned transfer was illegal. The learned Single Judge has also not held in that case that premature transfer to accommodate another person should usually be taken as illegal and that maladies do not necessarily mean dishonesty or bad faith and that it means a fraud on power. As a matter of fact these were the contentions raised by the learned counsel for the petitioner on which the learned Single Judge has not given his findings. Therefore, the head notes A,B,D, & E edited in WLR 1991 (S) Rajasthan 136 (supra) have been wrongly reported and those did not bear the approval of the learned Single Judge. In such circumstances, the facts of Narpat Singhs case are clearly distinguishable. (10). In Satya Narayanas case (cited supra), the petitioner was transferred as Patwari Rawla B Circle Tehsil Gharsana on his request by order dated 15.7.1991 and in pursuance thereof the had taken over the charge on 7.08.1991. He had also shifted his family and got his children admitted in the school there. However, by another order dated 31.08.1991, the earlier transfer order dated 15.7.1991 was cancelled and he was transferred to 30 PSA Tehsil Raisinghnagar. The subsequent transfer order was challenged oft the ground that it was against the transfer policy, that no government servant, should be transferred before completion of two years and that the said order was passed with malafides in order to accommodate another Patwari Kishana Ram. The petitioners writ petition was dismissed by the Single Bench of this Court. The subsequent transfer order was challenged oft the ground that it was against the transfer policy, that no government servant, should be transferred before completion of two years and that the said order was passed with malafides in order to accommodate another Patwari Kishana Ram. The petitioners writ petition was dismissed by the Single Bench of this Court. The petitioner filed a Special Appeal, where he also submitted an additional affidavit along with the copy of U.O. note dated 20.07.1991 of the Revenue Minister. The said document was admitted that it was clear from the said U.O. note that the petitioner-appellant was displaced in order to accommodate Kishna Ram and that the transfer order passed at the in stance of the Minister, who was not competent to transfer, was bad. In the instant case, the petitioner has not filed the alleged U.O. Note of the Minister for Forest and Environment Department. The petitioner has admittedly been working as Range Officer, Balesar since March, 1991 in pursuance of transfer order Annex. 5. However, by the impugned order dated. 16.4.1992 (Annex.6), he was transferred from Balesar to Barmer. The, learned Single Bench had stayed the operation of the impugned transfer order dated 16.4.1992 vide its order dated 28.4.1992, which was vacated on 2.3.1993. However, the Division Bench of this Court vide its order dated. 17.3.1993 has suspended the operation of the impugned transfer order. Therefore, the petitioner is still continuing at Balesar for a period of more than two years now. On the other hand in Satya Narayans case, the petitioners transfer order was cancelled within one month at the instance of the Minister. The D.B. in that case has no where held that the guide- lines for transfer give any vested right to a government servant and that those are enforceable in the court. It has also not been held that the transfer order without seeking prior approval of the State Government, in case of a government servant, who has not completed two years tenure, is without jurisdiction. In the instant case no U.O. note of the Minister has been filed. The impugned order has been passed by the PCCF, who is the competent authority to transfer a Ranger Grade-I (Gazetted). The State Government has already ratified the impugned transfer order by its order dated 19.5.1992 (Annex. R/3). In the instant case no U.O. note of the Minister has been filed. The impugned order has been passed by the PCCF, who is the competent authority to transfer a Ranger Grade-I (Gazetted). The State Government has already ratified the impugned transfer order by its order dated 19.5.1992 (Annex. R/3). In such circumstances, the facts of Satya Narayans case are poles apart with the facts of the case in hand. Petitioner has also not adduced even a fringe of evidence to show that the impugned transfer has been made due to political pressure exercised by the then Energy Minister. (11). In Rajendra Roys case (cited supra), the petitioner, who was Inspector of Exhibition DAVP New Delhi, was transferred on the same post at Calcutta. He challenged the said transfer order on the ground that it was not passed for administrative reasons or in the public interest, but the same was passed mala fide in order to get rid of him because the respondent No.2 had a personal score against him and had manipulated the impugned transfer order. It was held by the Apex Court that though the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down unless such order is passed mala fide Or in violation of the Rules of service and guidelines for transfer without any proper justification. It was further held that the court and the Tribunal should not interfere with the order of transfer is because in a transferring post the order of transfer is a normal consequence and personal difficulties are matters for considerations of the department. It was further observed that it may not be always possible to establish malice in fact in a straight cut manner and that in an appropriate case, it may be possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts & circumstances. But for such inference there must be firm foundation of facts pleaded and established and that such inference can not be drawn on the basis of insinuation and vague suggestions. We respectfully agree with the aforementioned principle. In the case in hand; no specific allegation of mala fide or any oblique purpose has been pleaded and proved. But for such inference there must be firm foundation of facts pleaded and established and that such inference can not be drawn on the basis of insinuation and vague suggestions. We respectfully agree with the aforementioned principle. In the case in hand; no specific allegation of mala fide or any oblique purpose has been pleaded and proved. There is not an iota of evidence even to prima facie establish that impugned transfer order has passed due to political interference. Simply because the impugned order was made by the PCCF in compliance of certain U.O. note of the then Minister for Forest and Environment, it can not be assumed by any stretch of imagination that the Minister for Energy & Power Department had influenced the then Forest Minister and that it was a case of political interference of malafide or that the impugned transfer order was made for any oblique purpose or for wrecking vengeance. On the basis of incomplete, vague and pleadings, malafide or political interference can not be presumed. Therefore, Rajendra Roys case also does not come to the rescue of the petitioner. (12). In Ghisu Lals case (cited supra), the petitioner, who was an Air Craftman in the Indian Air Force was transferred in violation of guide-line for transfer, posting and the tenure policy. Relying on various authorities of Supreme Court and various High Courts it was held by this Court that such guide-lines are not enforceable particularly at the instance of the affected officer. (13). In S.Ganguly vs. UOI (cited supra), this Court has held that the Post & Telegraphs Manual was not framed under any Act or Statute and the same was only administrative in nature having no force of law and therefore, the instructions and transfer policy incorporated therein do not confer a right on the Government servant to challenge his transfer and (hat such instructions are not enforceable in law. We fully agree with the reasonings given by the learned Single Bench of this Court in the aforementioned case. (14). In Shanti Kumari vs. Regional Deputy Director, Health Services, Patna Division, Patna & Ors. (8), a nurse in the Health Department was transferred from the place of her home district to another district in violation of government instructions regarding transfers. We fully agree with the reasonings given by the learned Single Bench of this Court in the aforementioned case. (14). In Shanti Kumari vs. Regional Deputy Director, Health Services, Patna Division, Patna & Ors. (8), a nurse in the Health Department was transferred from the place of her home district to another district in violation of government instructions regarding transfers. The Apex Court confirming the order of the Patna High Court held that even if the transfer order was in breach of (he government instructions with regard to transfers in the Health Department, the courts should not interfere in such mailers and directed her to file representation before the authorities in the Department. Therefore, we are of the considered opinion that the administrative instructions issued by the State Government regarding allocation of duties and responsibilities between PCCF & CCF are merely administrative instructions and the guide-line for seeking prior approval of the State Government for the transfer of the Rangers Grade-I (Gazetted), who has not completed two years tenure at one place, is merely administrative in nature and has no statutory force and that such guide-lines are not enforceable in law. Such guide-lines also do not confer any vested right to the appellant to challenge his transfer. Since, PCCF is the appointing authority of Rangers Grade-I (Gazetted), therefore, by no stretch of imagination it can be held that for want of seeking the approval of the State Government, the impugned transfer order Annexure-6 is unauthorised and or without jurisdiction. (15). In Mrs. Shilpi Boses case (cited supra), their lordships of the Supreme Court have clearly held that where a competent authority issues transfer order with a view to accommodate a public servant to avoid hardship, the same can not and should not be interfered with by the court merely because the transfer order was passed on the request of the employee concerned. Their lordships have further emphasized that the courts should not interfere with transfer orders, which are made in public interest and for administrative reasons unless 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 and he is liable to be transferred from one place to other. A government servant holding a transferable post has no vested right to remain posted at one place or the other and he is liable to be transferred from one place to other. The transfer orders issued by the competent authority do not violate any legal right of the government employee. The Apex Court has further held that even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead the affected parly should approach the higher authority to the department. (16). In the instant case in the impugned transfer order (Annex.6) itself it has been clearly mentioned that the transfer has been made in public interest. It may be mentioned here that transfer is a matter of administrative discretion. It is not a condition but incident of service and the administrative guide-lines do not confer any legal or. vested right in a government employee for challenging his transfer. Therefore, we are of the considered opinion that the impugned transfer order (Annex.6) is neither unauthorised nor without jurisdiction nor malafide nor in violation of any statutory/mandatory rule and as such the same does not suffer from any vice. Therefore, we do not find any error apparent or sufficient and valid reason warranting any interference in the impugned order passed by the learned Single Judge. (17). No other point services for consideration nor any other point was pressed before us. (18). In the premise of above discussion, this Special Appeal is devoid of any force and substance and the same is hereby dismissed.