Ravindra Ram v. State Of Bihar — 1995 DIGILAW 629 (PAT)

Judgment A. K. Ganguly, J. 1. At the stage of admission itself this matter, upon exchange of affidavits, was heard in full and is, therefore, disposed of finally by the judgment given below: 2. The subject-matter of challenge in this writ petition is an order of transfer dated 5th October, 1995 passed by the Secretary, Department of Secondary, Primary and Adult education, Government of Bihar, patna (respondent No.2), as contained in Annexure-1, whereby the petitioner, a Regional Deputy Director of Education, Muzaffarpur was sought to be transferred as the deputy Director of Education, Headquarters, Patna. 3. In the writ petition it has been asserted that after completion of his full terms as Deputy Director of Primary Education, the petitioner was transferred as the Regional deputy Director of Education, muzaffarpur by an order contained in memo No.147 dated 30th June, 1995. Such order of transfer was passed in respect of the petitioner on the recommendation of the Establishment Committee and by way of routine measure and it appears that along with the petitioner several other persons were also transferred. 4. Further case of the petitioner, as made out in the writ petition, is that one Bhola Ram from whom the petitioner took charge, pursuant to the order of transfer dated 30th june, 1995, challenged the petitioners order of transfer before this Court vide C. W. J. C. No.4925 of 1995 and ultimately the writ petition filed by the said Bhola Ram was dismissed by this Court and since then the said Bhola Ram started exerting political pressure to oust the petitioner from Muzaffarpur from the post of Regional Deputy Director of education. However, the said Bhola ram has not been made a party to this writ petition. It is also the case of the petitioner that a conspiracy was hatched up in collusion with the diferent M. L. As. to get the petitioner transferred from Muzaffarpur. Those m. L. As. are interested to get the petitioner transferred from Muzaffarpur as he did not act according to the request made by them in respect of transfer of different teachers of secondary Schools. As the petitioner refused to oblige the local M. L. As. and the Ministers, those political figures conspired to secure the transfer of the petitioner from Muzaffarpur. According to the petitioner, thus pressure was exerted upon the education Minister and the Chief minister to get the petitioner transferred. As the petitioner refused to oblige the local M. L. As. and the Ministers, those political figures conspired to secure the transfer of the petitioner from Muzaffarpur. According to the petitioner, thus pressure was exerted upon the education Minister and the Chief minister to get the petitioner transferred. One M. L. A. , namely, Munshi lal Rai wrote a letter to the Minister Incharge on 17.9.1995 and made a request for the transfer of the petitioner by using some objectionable allegations against him and the petitioner alleged that in the background of these facts on 4th October, 1995 the Chief Minister passed an order of transfer of the petitioner and on the said order of the Chief minister the Education Minister is sued a direction on 5th October, 1995 to respondent No.2 to transfer the petitioner without any delay and, thereafter the order of transfer was passed. 5. In the back drop of these facts, the assertion of the petitioner is that there is no administrative reason which calls for the transfer of the petitioner and he has been transferred after completion of just three months of service at Muzaffarpur on political considerations. 6. In order to substantiate the aforesaid case of the petitioner, the petitioner has disclosed in the writ petition several recommendations under Annexure-5 series made by the different M. L. As. and Ministers. 7. In order to bring home the allegations of mala fide against those m. L. As. and Ministers, the petitioner was required to make them parties but in this writ petition those persons for some inexplicable reasons, have not been made parties. 8. It is far too well settled to admit of any debate that he who alleged mala fide is saddled with the heavy burden of proving the same. In order to discharge such an onerous burden three conditions must be fulfilled, namely, (i) the allegations must be clearly and squarely made with sufficient particulars, (ii) those allegations must be supported by a proper affidavit by the person alleging the same and (iii) the persons against whom such allegations are made must be made parties so that they got a chance to refute the same. 9. Various decisions of the supreme Court while dealing with cases where allegations of mala fide were levelled lay down the aforesaid principles. 9. Various decisions of the supreme Court while dealing with cases where allegations of mala fide were levelled lay down the aforesaid principles. Reference in this connection may be made to the decisions of the Apex Court in the case of (i) S. Pratap Singh V/s. State of Punjab reported in A. I. R.1964 S. C. page 72, (ii) Barium Chemicals Ltd. V/s. Company Law Board, reported in A. I. R.1967 S. C. page 295 (paragraph 58), (iii) Kedar Nath Bahl V/s. State of Punjab and others, reported in A. I. R.1979 S. C. page 220 (para 24) (iv)M/s Sukwinder Pal Bipin Kumar and others V/s. State of Punjab, reported in a. I. R.1982 S. C. page 65 (para 12 ). In the case of Express News Papers private Limited and others V/s. Union of India and others reported in AIR 1986 S. C. page 872 the following observations have been made at page 924 : "where mala fides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. " 10. Now if those persons are not made parties, they have no chance to come forward with an answer. Thus the allegations per se cannot be held to be proved. The court, under those circumstances, cannot take cognizance of those allegation. Therefore, in this case, the court can and it does refuse to investigate those allegations of mala fide which are also rather rambling and diffuse in nature and un-supported by an affidavit modelled on the lines of Order XIX of the Code of Civil Procedure as indicated in the case of Sukwinder Bipin Kumar (supra ). 11. However, in the counter affidavit of the State those allegations have been denied in paragraphs 7 and 8 and it has asserted that the transfer order was not brought about as a result of those allegations or to satisfy the whims of the political leaders as already stated and that the impugned order of transfer has been passed on administrative grounds and in public interest. It has also been rightly stated in paragraph 11 that the allegations of mala fide are not specific and the petitioner has not made those persons parties to this proceeding against whom allegation of mala fide has been levelled. It has also been rightly stated in paragraph 11 that the allegations of mala fide are not specific and the petitioner has not made those persons parties to this proceeding against whom allegation of mala fide has been levelled. In paragraph 17 of the counter-affidavit it has been categorically denied that there is anything on the record to indicate that the petitioner has been transferred because he refused to oblige the M. L. As and Ministers or that the Minister Incharge or the chief Minister was influenced at the instance of the M. L. As. and the Ministers. It has been further said that the State Government has no knowledge of the contents of annexure-5 series. In paragraph 19 of the counter-affidavit certain reasons have been indicated and it has been stated that those are the adminsitrative reasons on the basis of which the petitioner has been transferred. 12. In the reply affidavit also the petitioner reiterated his case in the writ petition and has given reply to paragraph 19 of the counter affidavit stating therein that the alleged administrative reasons indicated in paragraph 19 of the counter-affidavit are non-existent. 13. The other aspect of the case which has been argued before this court is that in passing the order of transfer against the petitioner, the executive Rules of Business have not been followed. It has been stated that under the Executive Rules of business, the matter should be placed before the Chief Minister or the Minister concerned by the departmental head and thereupon the minister concerned may give his approval to the proposal of transfer. In the instant case the said procedure has not been observed. On the other hand it has been alleged that in the instant case the proposal for transfer of the petitioner actually originated from the Chief Minister on a buff sheet. Therefore, the rules relating to such transfer have not been properly observed. 14. This Court is of the opinion that Rules of Executive Business having been framed under Article 166 of the Constitution of India can-riot be held to be mandatory. By a catena of decisions the Supreme court held that the provisions of Article 166 of the Constitution are directory in nature and is a matter of substantial compliance. 14. This Court is of the opinion that Rules of Executive Business having been framed under Article 166 of the Constitution of India can-riot be held to be mandatory. By a catena of decisions the Supreme court held that the provisions of Article 166 of the Constitution are directory in nature and is a matter of substantial compliance. Dealing with such questions the Hon ble supreme Court in the case of the state of U. P. V/s. Om Prakash Gupta reported in AIR 1970 S. C. page 679 observed at paragraph 17, page 684 of the report as follows: "this Court has repeatedly held that the provisions of Article 166 (1) (2) (similar to sub-sections (1) and (2) of section 59 of the Government of India act, 1935), are directory and substantial compliance with those provisions is sufficient-See P. Joseph John V/s. State of travancore-Cochin, 1955 SCR 1011 : A. I. R.1955 S. C.160 and Chitralekha V/s. State of mysore, 1964 : 65 SCR 368 : ( AIR 1964 sc 1823 ). In this case the impugned order was made in the name of the State government, it was signed by the Chief secretary. Therefore, prima facie it is a valid order. " 15. A Division Bench of this court in the case of Mann Singh V/s. State of Bihar reported in 1982 b. B. C. J. , page 392 of course without adverting to the constitutional provisions of Article 166 came to the same conclusion that the rules of Executive Business are not mandatory. This Court is also of the same view. But the learned counsel appearing for the petitioner has drawn the attention of this Court to an un-reported judgment in the case of krishna Mohan Choudhary V/s. The state of Bihar and others, (C. W. J. C. No.2961 of 1993 disposed of on 31.3.1994) wherein it was held that the said decision in the case of mann Singh (supra) is par incuriam. Learned counsel for the petitioner has further drawn the attention of this Court to another order dated 28th August, 1995 passed in L. P. A. No.673 of 1995 (Vijay Kumar Sinha v. The Stale of Bihar and others)whereby a Division Bench of this court referred the question to a larger Bench in order to resolve the dispute whether such rules are mandatory or directory as there is inconsistency between the two Division bench judgments of this Court rendered in the case of Kailash Bihar prasad and others V/s. The State of bihar and others reported in 1992 (1)P. L. J. R. page 209 and the contrary view taken by a Division Bench in the case of Krishna Mohan Chaudhary (supra ). 16. As the question is pending consideration before a larger Bench, this Court does not express any final view on the matter but having regard to the express provision of Article 166 (3) of the Constitution which empowers the Governor to make rules for the more convenient transaction of the business of the Government of the State and for the allocation among the Minister of the said business, this Court is prima facie of the view that the rules framed in exercise of such Constitutional provision cannot be held to be mandatory. But since that question has been referred to a larger Bench, this Court refrains from making any final pronouncement on the same aspect. 17. However, this Court does not accept that there was any serious violation of those rules of Executive business in this case or on the basis of such violation the petitioner is entitled to succeed in this writ petition. 18. The Hon ble Supreme Court in a number of cases have held that in absence of a clear case of mala fide and violation of statutory provision, the High Court has no jurisdiction to interfere with an order of transfer : Union of India V/s. S. L. Abbas, AIR 1993 S. C.2444. In the instant case it is not in dispute that the order of transfer has been issued by the competent authority and the transfer order has been passed in respect of a post which is transferable from one place to another. The allegations of mala fide as noted above have not been proved and there is no question of any mandatory violation of any statutory rules. The allegations of mala fide as noted above have not been proved and there is no question of any mandatory violation of any statutory rules. In the aforesaid background, this court is unable to interfere with the impugned order of transfer. 19. During the course of submission, learned counsel appearing for the petitioner wanted the Court to call for the record relating to the transfer of the petitioner. Pursuant to such submission, this Court called for the records of the case and the records were produced by the learned advocate-General for the perusal of the Court and the records were also allowed to be perused by the learned counsel for the petitioner. It appears that all the contents of the records have already been annexed by the petitioner either in the writ petition or in the rejoinder affidavit and so from the production of records no new material was brought before the court. 20. Learned counsel for the petitioner with reference to the file has submitted that these records were not in the file when the order of transfer was passed by the Chief minister but these records have been subsequently placed. He further stated that the file was never placed before the Chief Minister at the time of issuing the order of transfer. 21. These submissions have been made from the Bar without any pleading. Therefore, there is no material before this Court to accept the contention raised by the petitioners counsel which are merely made on the basis of oral submission. It is well settled that before inferring mala fide or malice against persons in authority, the Court must be circumspect and slow in drawing such inference and such inference can be brought about only on the basis of incontrovertible materials. Here in the absence of any material, the Court cannot on the basis of oral submission made by the learned counsel for the petitioner come to any such finding. 22. It is well known that transfer is one of the un-avoidable hassles of public service and an order of transfer might cause hardship and inconvenience but those must be accepted by the person who has been entrusted with the onerous duty which he has to discharge as a government servant. Therefore, the hardships and the difficulties involved in an order of transfer cannot and do not make out any case for interference by this Court. 23. Therefore, the hardships and the difficulties involved in an order of transfer cannot and do not make out any case for interference by this Court. 23. Before parting with the records, one thing is clear to this court that the petitioner has been transferred on 5th October, 1995 from a place where he joined in the month of July, 1995. This is rather un-usual. Normally when a person is transferred to a place, he is not to be disturbed within such a short time except for compelling reasons. However, in the instant case in paragraph 19 of the counter-affidavit some reasons have been disclosed. The court cannot, as it is well settled, go into the sufficiency or adequacy of those reasons and substitute its opinion for the one taken by the administrative authority. 24. Even if it is assumed that those reasons call for an order of transfer but whether such transfer made should be within a period of 3 to 4 months is a matter which is to be left to the discretion of the administrative authorities and that is a domain in which the Court does not normally enter. Even then the Court observes that in order to maintain purity in public administration and to instil a sense of confidence amongst the government servant, frequency in matters of transfer should be avoided as far as practicable. Keeping these observations in mind the representation which the petitioner made on 10th October, 1995 should be disposed of by the appropriate authorities within a period of two weeks from the date of receipt/production of a copy of this judgment by a speaking order. 25. For the reasons aforesaid, this Court is unable to interfere with the impugned order of transfer, save and except giving the order for disposal of representation. This writ petition is accordingly dismissed. There will be no order as to cost. Petition dismissed.