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2008 DIGILAW 109 (MP)

Shishir Raizada v. Union of India

2008-01-21

A.K.MISHRA, PRAKASH SHRIVASTAVA

body2008
ORDER Shrivastava, J. -- 1. Petitioner, who was working as Principal Systems Analyst (Scientist D), was transferred vide order dated 9.8.2005 from NIC, Seoni District Center to NIC Panna District Center. 2. Challenge to the said transfer order was made by the petitioner before the Tribunal by filing OA No. 296/06, which was dismissed by the Tribunal vide order dated 15.11.2007. The present writ petition has been filed impugning the order of Tribunal amongst others. 3. Counsel for the petitioner has raised the argument that the impugned order of transfer has been passed in the mala fide exercise of power and that the plea of malice can be found in paragraphs 5.3, 5.5 and 5.6 of the writ petition. His further contention is that there was no reply to paragraph 4.15 of OA by the concerned respondent No.4 against whom the mala-fides were alleged in the said paragraph. He has also argued that the petitioner is suffering from mal-absorption syndrome and if he is transferred from Seoni to Panna he may not be able to get the proper treatment. 4. In response to the above counsel for the respondents has pointed out that the order dated 9.8.2005 has been passed as a consequence of petitioner's promotion from Scientist C (Senior Systems Analyst) to Scientist D (Principal Systems Analyst), thus his contention is that the impugned order dated 9.8.2005 is in fact a posting order having been issued consequent to the promotion of the petitioner. 5. So far as the plea of malafide is concerned, apart from making vague allegations in the writ petition the petitioner has failed to place on record any cogent material in support of the said plea. The impugned order dated 9.8.2005 has been passed by the Director (Pers. & Lit.) against whom no malafides have been alleged. Petitioner's reliance on communication of the Collector dated 9.6.2005, Annexure A-4 also does not carry his case any further since there is nothing on record to connect the said communication with the order of transfer. The said plea of the petitioner even otherwise is bereft of merit since the opening Paragraph of the transfer order dated 9.8.2005 itself states that the order was passed consequent to the promotion of the petitioner from the post of Scientist C (Senior Systems Analyst) to Scientist D (Principal Systems Analyst). The said plea of the petitioner even otherwise is bereft of merit since the opening Paragraph of the transfer order dated 9.8.2005 itself states that the order was passed consequent to the promotion of the petitioner from the post of Scientist C (Senior Systems Analyst) to Scientist D (Principal Systems Analyst). A perusal of the impugned order also shows that the same has been passed in public interest and on the existing terms and conditions of the petitioner's appointment. 6. Tribunal while dealing with the plea of malafides has rightly come to the following conclusion in para 10 of its order: "In this regard we have perused the decisions rendered in 2006 (5) Supreme Today 92, P.K. Jha v. State of Jharkhand and (2005) 8 SCC 760, Union of India v. Ashok Kumar, wherein the Hon'ble Supreme Court has clearly held that it is well settled that whenever allegations of malafide has been alleged sufficient and cogent material making out prima facie case must be set out in the pleadings. The plea of malafide advanced on behalf of the applicant is not very much convincing. Merely on the ground that the respondent No.4 has not filed any counter reply denying the allegations contained in the original application would not reach to the conclusion that whatever has been stated therein is gospel truth. The allegations of malafide are not supported by any material document it is true that the person against whom malafide has been alleged has been made a party in the proceedings but at the same time the plea of malafide must be specific. The burden is very heavy on the person who alleges malafide and malafide can be established either by direct evidences or can be deduced from proved facts." 7. It is the settled law that so far as the challenge to the transfer order on the ground of mala fides is concerned, the employee concerned is required to place on record strong and clinching material in support of his plea of malafides. 8. While dealing with the challenge to transfer order on the ground of malafide Supreme Court in the case of State of U.P. and others v. Gobardhan [ (2004) 11 SCC 402 ], has held that: "8. 8. While dealing with the challenge to transfer order on the ground of malafide Supreme Court in the case of State of U.P. and others v. Gobardhan [ (2004) 11 SCC 402 ], has held that: "8. ......even allegations of malafides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures and surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." 9. In State of U.P. and another v. V.N. Prasad [1995 Supp. (2) SCC 151] the Supreme Court has expressed that the presumption is in favour of the bonafides of the order unless contradicted' by acceptable material. Strong and convincing evidence is required to establish the plea of malafides. The view of the Supreme Court in Rajendra Roy v. Union of India [ (1993) 1 SCC 148 ] is that it may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances but for such inference there must be firm foundation of facts pleaded and established. Such interference cannot be drawn on the basis of insinuation and vague suggestion. 10. In the present case, we find that petitioner has failed to place on record strong and convincing material in support of his plea of malafides and the allegations made by him in the writ petition do not inspire confidence. 11. Judgments of Apex Court in the matter of Express Newspaper Pvt. Limited and others v. Union of India and others [ (1986) 1 SCC 133 ] and Naseem Bano (Smt.) v. State of U.P. and others [1993 Supp. (4) SCC 46] cited by the Counsel for the petitioner are of no help to him for the reasons that no material in support of the plea of malafides is on record except for the vague allegations in the writ petition. Thus, we find no merit in the petitioner's challenge to the transfer on the ground of malafides. 12. (4) SCC 46] cited by the Counsel for the petitioner are of no help to him for the reasons that no material in support of the plea of malafides is on record except for the vague allegations in the writ petition. Thus, we find no merit in the petitioner's challenge to the transfer on the ground of malafides. 12. So far as the other ground of challenge relating to ailment of the petitioner is concerned, there is nothing on record to indicate that the petitioner would get better treatment at Seoni or at Panna. Since the order dated 9-8-05 is passed in public interest and on the existing terms and conditions of the appointment of the petitioner, the same is in accordance with law, hence no interference is required. 13. Supreme Court in the matter of B. Varadha Rao v. State of Karnataka and others [ (1986) 4 SCC 131 ] Shipli Bose (Mrs.) and others v. State of Bihar and others [1991 Supp. (2) SCC 659] Union of India and others v. S.L. Abbas [ (1993) 4 SCC 357 ] Chief General Manager (Telecom) N.E. Telecom Circle and another v. Rajendra C.H. Bhattacharjee and others [ (1995) 2 SCC 532 ] and National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan [(200l) 8 SCC 574] has laid down that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service. No Government servant can claim to remain in a particular place or in a particular post unless his appointment itself is to a specified, non- transferable post. It has further been laid down that if the transfer order has been issued by the competent authority which did not violate any mandatory rule, the interference by the Court in such transfer order is not required. Even if a transfer order is passed in violation of executive instructions or orders, the Court ordinarily should not interfere with the order; instead affected party should approach the higher authorities in the depar1ment. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory precisions, the Court cannot interfere with. 14. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory precisions, the Court cannot interfere with. 14. The petitioner's case does not fall in any of the grounds for interference in the transfer matter which have laid down by the Supreme Court in the aforesaid judgments, hence the impugned order passed by the competent authority cannot be interfered with. 15. No other ground of challenge has been raised by the petitioner. For the reasons aforesaid the writ petition is dismissed. However, no order as to costs.