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1998 DIGILAW 647 (PAT)

Kalp Nath Singh v. State of Bihar

1998-09-09

B.M.LAL, S.K.SINGH

body1998
Order B.M. Lal, J. This appeal under Clause 10 of the Letters Patent of the Patna High Court is directed against the impugned order dated 29.7.98 passed by the Writ Court whereby repelling the submission of the appellant for quashing his transfer order dated 23.9.97 contained in Annexure-1 to the writ petition, by which he has been transferred from Siwan to Jamshedpur, the writ petition is dismissed. 2. The facts leading to this appeal may compendiously be stated thus : Appellant Kalp Nath Singh is a sergeant in the Home Department of 'the State of Bihar and was posted at the relevant time at Siwan, wherefrom he is transferred to Jamshedpur vide order dated 23.9.97 contained in Annexure-1, to the writ petition. 3. The transfer order is assailed, inter alia, on the ground that the appellant is an elected Secretary of the Police association of Siwan branch. He is elected as Secretary of Police association on 16.9.97 and thereafter on 23.9.97 he is transferred from Siwan to Jamshedpur. 4. While referring to Annexure-6 to the writ petition, it is submitted that for an elected Secretary or office bearer of association of the Home Department (Police), it is the Director General of Police, who is competent authority to pass the transfer order. But in the instant case of appellant, the Additional Inspector General (Police), Respondent no. 2, has passed the transfer order transferring the appellant from Siwan to Jamshedpur and, therefore, transfer order is without jurisdiction. 5. It is next contended that neither any administrative reason is assigned nor any opportunity of being heard was afforded to the appellant by the Director General of Police while considering the representation of the appellant for revoking or recalling his transfer order and the representation was rejected. Lastly it is also submitted that the learned Writ Court has not taken into consideration all these grounds including the ground of mala fide raised by the appellant and has dismissed the writ petition. Hence, it is submitted that the impugned order of the learned Writ Court as well as the transfer order contained in Annexure-1 to the writ petition, dated 23.9.97, are fit to be quashed. 6. Hence, it is submitted that the impugned order of the learned Writ Court as well as the transfer order contained in Annexure-1 to the writ petition, dated 23.9.97, are fit to be quashed. 6. The submissions made by the learned" Senior counsel Shri Ganesh Prasad Singh, appearing for the appellant, are to be tested on the touchstone of the settled proposition as to whether the transfer order in question is assailable in writ jurisdiction. 7. Law in this regard is well settled. Transfer is concomitant of service condition and is made in exigency of administration and, therefore, no interference in writ jurisdiction is called for save in cases where order of transfer is passed in colourable exercise of jurisdiction or with mala fide intention or is against statutory provision of law. 8. Learned counsel Sri Ganesh Prasad Singh contended that the impugned order of transfer besides suffering from the vice of mala fide, has been passed in colourable exercise of jurisdiction as well inasmuch as it has not been passed by the authority empowered to transfer the office bearer of the association. 9. Taking into consideration the above submission of the appellant, what we find is that Annexure-6 to the writ petition is a circular issued from the office of the Director General of Police and, therefore, it has no statutory force enforceable in writ jurisdiction in favour of the appellant. At best on this basis the incumbent may represent to the authority concerned, which the appellant in the instant case, has exhausted the remedy and the Director General of Police has dismissed the representation filed by the appellant, as stated above, and in view of the fact that the representation has been disposed of by the Director General of Police, therefore, it be deemed that the transfer order of the appellant is approved by the Director General of Police, may be post facto. Hence, the ground that the transfer order is not made by the Director General of. Police remains no more available to the appellant. 10. As far as affording of opportunity of hearing while considering the appellant's representation is concerned, we do not find that this submission also has any force inasmuch as every order passed on administrative side can not be subjected to the rigours of the principle of natural justice. Police remains no more available to the appellant. 10. As far as affording of opportunity of hearing while considering the appellant's representation is concerned, we do not find that this submission also has any force inasmuch as every order passed on administrative side can not be subjected to the rigours of the principle of natural justice. (See the decision in the case of Union of India and others vs. Ex-Constable Amrik Singh : AIR 1991 S.C. 564 ). Therefore, 'the ground taken by the appellant that no opportunity of hearing was given to the appellant also fails. We may make it clear that administrative• order does not require to contain reasons and so it is not necessary for the authority concerned to record or assign any reason while passing any administrative order, that is, transfer order. 11. Lastly it is contended that the transfer order of the appellant is actuated with mala fide intention. This ground also has no force. Learned Writ Court has elaborately considered this ground and reached the conclusion that the ground of mala fide taken by the appellant is an after-thought the same having not been taken from the very inception in the writ petition; but has been raised• subsequently on the date of hearing of the writ petition. The reason assigned by the Writ Court, in our opinion, does not require any interference. 12. In transfer of Government employees it is well settled that a Court or Tribunal can not be used or they exercise jurisdiction as an appellate forum to decide the transfer issue, which is made on administrative ground. That is why it is said that wheels of administration should be allowed to run smoothly and the Court or Tribunal is ordinarily not expected to interdict the working of administrative system of the State. In such cases of transfer it is always for the administration to take appropriate decision and such decision shall stand unless it is vitiated if transfer is made in colourable exercise of jurisdiction, mala fide or passed on extraneous consideration for which specific pleadings and cogent evidence are required to be brought on the record. 13. Thus in the absence of specific pleadings or factual background, simpliciter by using words-colourable exercise of jurisdiction, mala fide or extraneous consideration, without laying down any foundation, the same can not be investigated in writ jurisdiction. 13. Thus in the absence of specific pleadings or factual background, simpliciter by using words-colourable exercise of jurisdiction, mala fide or extraneous consideration, without laying down any foundation, the same can not be investigated in writ jurisdiction. So is the case here in the instant case. Nothing has been brought on the record to substantiate the ground of mala fide and colourable exercise of jurisdiction and that is why the Writ Court has repelled the submission. 14. It is surprising that the transfer order has been passed on 23.9.97 and the same is challenged by the appellant after lapse of a period of near about a year in writ jurisdiction and yet the appellant being an employee of the most disciplined department i.e. Police Department has not yet joined the transferee place of posting at Jamshedpur. 15. The officers in the Police Department are expected to maintain discipline at all levels as it is not that discipline is confined to Army personnel alone but in the Police Department as well, which is also a part and parcel of Army, the functions and duties of the Police Department more or less being analogous to Army. The only difference is that Army maintains security of the nation from external aggression whereas the Police Department maintains internal security as also law and order situation in the State. Therefore, such disobedience or laxity on the part of officials in the Police Department is highly deprecable. 16. The facts speak in themselves that how the appellant is avoiding his transfer since last one year. In this regard our Apex Court has observed that in the absence of any stay of transfer order, a public servant has no justification to avoid or evade transfer order merely on the ground of having made a representation or on the ground of his difficulty in moving from one place to other. If he fails to proceed on transfer in compliance of the transfer order he will expose himself to the disciplinary action under the relevant rules. (See the decision in the case of Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani : AIR 1989 S.C. 1433 ). 17. If he fails to proceed on transfer in compliance of the transfer order he will expose himself to the disciplinary action under the relevant rules. (See the decision in the case of Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani : AIR 1989 S.C. 1433 ). 17. Thus, under the circumstances, the Police Department of the State of Bihar is at liberty to take disciplinary action against such erring officer, who has no respect for the order passed by the superior authority, if by now no action has been taken against the appellant. 18. The facts as appearing from the record disclose a sordid state of affairs that how a high rank officer in the Police Department is avoiding his transfer order since last one year. Therefore, we are constrained to observe that the Writ Court should be slow in interfereing with the transfer order in such belated approach against transfer order. The writ jurisdiction is to enforce the rule of law and it is not for safeguarding or protecting the interest of law breaker or law evader. 19. Thus, from the discussions made above, this appeal fails and is dismissed. A copy of this order be sent to the Director General of Police, Bihar, Patna, for necessary action. S.K.Singh, J. - I agree.