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2001 DIGILAW 158 (RAJ)

Dr. Mukesh Kumar Vashistha v. State of Rajasthan

2001-02-01

B.S.CHAUHAN

body2001
JUDGMENT 1. - The instant writ petition has been filed challenging the judgment and order of the Rajasthan Civil Services Appellate Tribunal dated 25.10.2000 (Annx.1), by which the appeal of the petitioner against the impugned transfer order has been rejected. 2. The facts and circumstances giving rise to this case are that petitioner stood transferred, vide order dated 22.7.2000, from Bhusawar (District Bharatpur) to Shakkargarh (District Bhilwara) and he filed an appeal against the said order of transfer before the learned Tribunal, which was disposed of vide order dated 31.7.2000, directing the petitioner to file a representation before the Competent Authority and the said representation has been rejected. Thus, the petitioner again approached the learned Tribunal against the order of rejection of his representation and that appeal has been rejected by the learned Tribunal vide order dated 25.10.2000. Hence this petition. 3. Mr. Singhal, learned counsel for the petitioner has raised various issues, including the allegation of mala fide against respondent No. 4, the Medical Officer incharge of Bhusawar Health centre, but in fact the transfer has been made by the Director, Medical & Health Services. There are no allegations against respondent No. 1. Moreso, allegations of malafide against respondent No. 4 are not sufficient to be taken note of for entertaining this petition on this ground. The transfer had been made by respondent No. 2, against whom there are no allegation of malafide. 4. It is settled proposition of law that for proving the allegations of malafides, there must be very strong and convincing evidence to establish the same for the reason that there is a presumption in favour of the bonafides of the order unless contradicted by acceptable material. Though the inference of malafides may be drawn by reading in between the lines and taking into account the attending circumstances. The inference, however, must be based on factual matrix which should be based on evidence and not in surmises or conjectures. Moreso, the allegations must be a very high magnitude (Vide E.P. Royappa v. State of Tamil Nadu, AIR 1974 Supreme Court 555 ; Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC 567 ; M/s Sukhwinder Pal Bipan Kumar v. State of Punjab & Ors., AIR 1982 SC 65 ; Shivajirao Nilangekar Patil v. Dr. Moreso, the allegations must be a very high magnitude (Vide E.P. Royappa v. State of Tamil Nadu, AIR 1974 Supreme Court 555 ; Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC 567 ; M/s Sukhwinder Pal Bipan Kumar v. State of Punjab & Ors., AIR 1982 SC 65 ; Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosain, AIR 1987 SC 294 ; M. Shankaranarayana v. State of Karnataka, AIR 1993 SC 763 ; N.K. Singh v. Union of India, 1995(1) SCT 269 (SC) : 1994(6) SCC 98 ; State of U.P. v. Dr. V.N. Prasad, 1995 (Supp.) 2 SCC 151 ; Arvind Dattatraya Dande v. State of Maharashtra & Ors., 1997(3) SCT 446 (SC) : 1997(6) SCC 169 ; Utkal University v. Dr. Nrusingha Charan Sarangi, 1999(1) SCT 656 (SC) : 1999(2) SCC 193 ; Prabodh Sagar v. Punjab State Electricity Board & Ors., 2000(5) SCC 630 ). 5. In Kiran Gupta & Ors. v. State of U.P & Ors., 2000(4) SCT 695 (SC) : 2000(7) SCC 719 , the Hon'ble Supreme Court held that "the allegations of malafide may be wild and preposterous to be entertained in the absence of any incontrovertible and irrefragable material to support it and to rebut the presumption of regularity of the official record." 6. Thus, in view of the above, the submissions made on malafide are not of such a magnitude that the writ Court should take note of it and this issue is not worth further consideration. 7. Transfer is an incident of service and transfer order should never be passed on the ground of duration at a particular place for the simple reason that it is employer who has to decide as when and on what place the services of an employee are required in administrative exigency. The Tribunal or the Court should not interfere with the transfer order unless the transfer order is showin either passed in flagrant violation of the stautory Rules or had been passed on malafide grounds. The issue of malafides may be considered by the Court or the Tribunal only in case the person against whom malafides are alleged has been impleaded by name as a party and he has been given the opportunity to rebut the allegations of malafides. The issue of malafides may be considered by the Court or the Tribunal only in case the person against whom malafides are alleged has been impleaded by name as a party and he has been given the opportunity to rebut the allegations of malafides. (Vide State of Bihar v. P.P. Sharma, 1991(2) SCT 397 (SC) : 1992 Supp.(1) SCC 222 ; All India State Bank Officers Federation and Ors. v. Union of India and Ors., 1997(1) SCT 91 (SC) : 1996(8) JT 550 ; Dr. J.N. Banabalikar v. Municipal Corporation of Delhi & Anr., 1995(4) SCT 665 (SC) : AIR 1996 SC 326 . ) 8. The transfer policy framed by the State Government does not have any statutory character and the terms and conditions incorporated in the transfer policy are not enforceable in Court of law as held by the Hon'ble Supreme Court in Bank of India v. Jagjit Singh Mehta, 1992(1) SCT 161 (SC) : AIR 1992 SC 519 ; Union of India v. S.L. Abbas, 1995(4) SCT 455 (SC) : AIR 1993 SC 2444 ; Shilpi Bose v. State of Bihar, 1993(3) SCT 564 (SC) : AIR 1991 SC 532 ; and State of Punjab v. Joginder Singh, 1991(2) SCT 294 (P&H)(DB) : AIR 1993 SC 2486 . 9. The personal inconveniences caused to any employee by transfer order can be considered only by the employer and not by the Court or the Tribunal. 10. In State of Madhya Pradesh v. S.S. Kaurav, 1995(2) SCT 195 (SC) : AIR 1995 SC 1056 , the Apex Court deprecated the practice of showing sympathy by the Courts and Tribunals in interfering with the transfer orders on the ground of personal inconvenience caused to the employee. In case the transfer order causes inconvenience the only remedy available to the employee is to make a representation before the employer and employer should consider the same keeping the administrative exigency in mind. However, at the same time employer should not brush aside the personal inconveniences of its employee being personal in nature. 11. If the case of the petitioner is examined in the light of the aforesaid proposition of law, undoubtedly, an employee cannot be made a shuttle-cock as it is neither desirable nor does it serve any purpose of the employee or the employer. 11. If the case of the petitioner is examined in the light of the aforesaid proposition of law, undoubtedly, an employee cannot be made a shuttle-cock as it is neither desirable nor does it serve any purpose of the employee or the employer. An employee should be given a reasonable time to serve at a particular place unless his servies are required in administrative exigency at some other place. Petitioner has claimed that during the period of five year's service, he had been transferred seven time. Inspite of the fact that the employer has a right to transfer and re-transfer an employee, the transfer should be made only in the requirement of administration. The issue of personal inconvenience of the employee should also be considered considering the interest of administration as of paramount importance. 12. In the instant case, the orders have been passed twice by the learned Tribunal in a very cryptic manner and the represetnation of the petitioner has also been rejected on the ground that the transfer had been made for administrative reasons, without disclosing as what are those reasons. If petitioner is at fault, the Departmnet should not hesitate in dealing with him in accordance with law. They should initiate enquiry and conclude it expeditioulsy if he is at fault and if the allegations are of serious nature, he can be put under suspension also. But without disclosing anything, the petitioner should not be dealt with in such a casual and cavilliar manner by the mighty employer. 13. As the grounds taken in the petition are personal in nature, I am not inclined to interfere with the impugned order. The competent authority is requested to re-consider the case and pass an appropriate order, examining the requirement of administrative exigency, within a period of four weeks from the date of filing the certified copy of this judgment/order with a fresh representation. Moreso, if the petitioner has not been paid the dues and makes such a representation before the Competent Authority, the same should be released forthwith. 14. The petition is disposed of with the aforesaid observations without issuing notice to the other side.Petition disposed of. *******