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Madhya Pradesh High Court · body

2014 DIGILAW 1693 (MP)

Virendra Kumar Singh v. State of M. P.

2014-12-19

ROHIT ARYA

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JUDGMENT : Rohit Arya, J. 1. By this petition under Article 226 of the Constitution of India challenge is made to the impugned order dated 3/3/2014 transferring the petitioner from Gwalior to Rewa. 2. Facts necessary for disposal of the case are to the effect that petitioner while serving as Joint Collector, Tikamgarh vide order (Annexure P/2) dated 14/7/2010 was transferred to Gwalior, where he submitted joining on 26/7/2010. Thereafter, vide order (Annexure P/3) dated 29/7/2010, he was given posting as SDM, Dabra within District Gwalior. Thereafter, vide another order dated 12/7/2011, he was against posted at Gwalior itself as SDM. Vide order (Annexure P/4) dated 5/9/2012, petitioners services were transferred as Deputy Director, Agriculture Marketing Board, Gwalior i.e. within the Gwalior district itself. Thereafter by the impugned order (Annexure P/1) dated 3/3/2014, petitioner has been transferred on the same post to Rewa. 3. Aforementioned sequence of events of facts reveal that petitioner after being transferred vide order dated 14/7/2010 (Annexure P/2) as Joint Collector, Gwalior continued to be at Gwalior up to passing of impugned order dated 3/3/2014, and in fact in parent petitioner continued to be in parent department up to 5/9/2012, therefore, merely the petitioner was required to work within the District Gwalior on different post, it cannot be said that the petitioner was subjected to frequent transfers. On 5/9/2012, petitioner's services were transferred to Agriculture Marketing Board, Gwalior and thus, he continued at Gwalior on different assignments. Therefore, petitioner cannot be said to have been subjected to frequent transfers as alleged. Hence, the first contention of petitioner that he has been subjected to frequent transfer, in the opinion of this Court is without any substance. In fact after 14/7/2010 for the first time petitioner has been transferred out of District Gwalior after almost four years vide impugned order dated 3/3/2014 to District Rewa. 4. Second contention relates to challenge for want of authority and jurisdiction of the Managing Director in the light of Rule 101 of Madhya Pradesh Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ki Gathan Ki Riti Tatha Anya Vishay) Niyam, 1980, (for short “Rules of 1980”) to issue impugned transfer order. The aforesaid Rules were framed by the State Government in exercise of powers under sub-sections (1) and (2) of Section 79of the M.P. Krishi Upaj Mandi Adhiniyam, 1972. Rule 101 of Rules of 1980 reads as under:- “101. The aforesaid Rules were framed by the State Government in exercise of powers under sub-sections (1) and (2) of Section 79of the M.P. Krishi Upaj Mandi Adhiniyam, 1972. Rule 101 of Rules of 1980 reads as under:- “101. Posting and transfers.-A member of the service shall be liable to transfer to any part of the State of Madhya Pradesh and postings and transfers shall be made by the Government (Appointing Authority) on the recommendations of the Director/Appointing Authority or in accordance with the provisions of the Act.” The relevant enabling clause (xxiv) of sub-section (2) of Section 79 reads as under: “79. Power to make rules.-(1) The State Government may, after previous publication, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice tot he generality of the foregoing power, such rules may provide for- (i) to (xxiii) xxx xxx xxx (xxiv) recruitment, qualification, appointment, promotion, scale of pay, leave allowance, acting allowance, loans, pension, gratuity, annuity, compassionate fund, provident fund, dismissal, removal, conduct, departmental punishment appeals and other service conditions of the members of the State Marketing Services.” 5. However, later on by amendment dated 27/12/2001,the aforesaid clause has been deleted. As such, those rules have no existence after the deletion of enabling provisions in the Rules. Hence, the challenge made to the transfer order on the aforesaid ground is found to be devoid of substance. As a matter of fact, in exercise of powers under Section 81-A read with Section 26(2) of the M.P. Krishi Upaj Mandi Adhiniyam, 1972, the Agriculture Marketing board has framed the regulations known as Rajya Mandi Board Sewa Viniyam, 1998 applicable w.e.f. 13/7/1998, clause 25 whereof deals with posting and transfer which reads as under:- 6. The post of Deputy Director is part of State Mandi Board as is evident from Schedule -I appended with Clause 5 and 6 of the Viniyam, 1998, and therefore, in view of provisions contained under Clause 25 , Managing Director, Respondent No. 2 was fully competent to transfer the petitioner from the post of Deputy Director, Agriculture Marketing Board, Gwalior to the post of Deputy Director, Agriculture Marketing Board, Rewa in administrative exigency and in wider public interests. Neither there is any illegality nor irregularity in transferring the petitioner. Neither there is any illegality nor irregularity in transferring the petitioner. There appears to be no illegality in the impugned transfer order once the services of petitioner have been lent to the Agriculture Marketing Board and petitioner's services being under administrative control of Agriculture Marketing Board, as per Clause 25, the Managing Director has authority to use the services of the petitioner on any transferable post as he is in the best position to organize his work force. Under sub-section (4) of Section 42-D of the M.P. Krishi Upaj Mandi Adhiniyam, 1972, the superintendence and control of the officers and employees of the Board vest in the Managing Director. For ready reference, sub-section (4) is quoted hereinbelow:- “(4) The superintendence and control over all the offices and employees of the Board shall vest in the Managing Director.” Hence, in view of aforesaid facts and circumstances, the contention of petitioner that impugned transfer order is illegal for want of authority and jurisdiction cannot be countenanced and the same deserves rejection. 7. The third contention raised by counsel for the petitioner is to the effect that impugned transfer order suffers from vice of mala fides. It is pertinent to point out that no averments of mala fides were made in the petition and no ground of challenge was raised in the petition at the time of filing writ petition. During pendency of the petitioner by way of amendment, grounds of mala fides have been incorporated by adding one Ex-MLA as party respondent. It is alleged that the aforesaid transfer order is politically motivated and outcome of mala fide of one Shri Ranveer Singh Rawat, Ex-MLA of BJP from Karera, District Shivpuri and one Shri Vinod Gupta, Inspector Mandi closed to him looking after his business. It is alleged that he is closed to elected President Smt. Urmila Rawat , Mandi Samiti, Karera, who is wife of Ranveer Singh Rawat and she commanded with the petitioner not to transfer him (Vinod Gupta). On refusal by the petitioner, it was threatened that within one months, the petitioner would be transferred from present place of posting and the petitioner was transferred vide order Annexure P/1. On refusal by the petitioner, it was threatened that within one months, the petitioner would be transferred from present place of posting and the petitioner was transferred vide order Annexure P/1. However, in another paragraphs, it is alleged that Ex-MLA Ranveer Singh Rawat approached the Agriculture Minister through sitting Member of Parliament of BJP, who recommended Shri S.K.Kumhre as Deputy Director, Agriculture Marketing Board, Gwalior and order Annexure P/ 1 has been passed. On the face of sequence of allegations of facts, it is evidence that according to petitioner the elected President of Mandi Samiti, Karera prevailed over her husband, an Ex-MLA for transfer of the petitioner who in turn approached the Agriculture Minister through a Member of Parliament of BJP for issuance of impugned transfer order. Neither Smt. Urmila Rawat is made a party, nor the name of Member of Parliament of BJP is disclosed nor made party though allegations are made. Besides, no material is placed on record to substantiate such self styled and self pleasing fanciful for fetched allegations brought on record by way of amendment. Allegations are absolutely bald in nature and figment of wild imaginative facts. In fact, it is more of frustration than of substance. 8. While dealing with issue of transfer particularly on the ground of alleged mala fides, Hon. supreme Court in the case of State of U.P. Vs. Gobardhan Lal, : (2004) 11 SCC 402 has observed in para 7 and 8 as under:- “7.It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides 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 or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.” 9. By following the same judgment in another case Airport Authority of India Vs. Rajeev Ratan Pandey and others, : (2009) 8 SCC 337 , it has been observed by Hon. Apex Court in para 7 as under:- “7. In the case of State of U.P. v. Gobardhan Lal1, while dealing with a matter of transfer, this Court observed that allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials.” (Emphasis supplied) 10. That apart, on the question of dealing with allegations of mala fides being incorporated in the petition subsequently by way of amendment, Hon. Supreme Court in the aforesaid case of Airport Authority of India (supra) has further held in para 6 and 8 as under:- “6. The writ petition was filed by the Respondent no. 1 on June 1, 2009 which contains no allegation that the transfer order has been issued maliciously. For the first time in a supplementary affidavit filed on July 3, 2009, the allegations of mala-fides have been made by the Respondent No. 1. Prima facie, we have no doubt that the allegations of mala-fides are afterthought. Moreover, except the bald statement in the supplementary affidavit, there is no convincing and cogent material placed by the Respondent No. 1 in proof thereof. 8. In the present case, as noticed above, at the threshold, no allegations of mala-fides have been pleaded in the writ petition. It is only by way of a supplementary affidavit that allegations of mala- fides have been put forth by the Respondent No. 1 but even such allegations are not supported by any material whatsoever. In a matter such as the present one where plea of mala-fides is not made in the writ petition and the assertion of mala-fides is made for the first time in a supplementary affidavit which too is not supported by any convincing and cogent material, the plea of mala-fides hardly deserved acceptance, prima facie, justifying stay of operation of a transfer order.” (Emphasis supplied) 11. In view of the aforesaid authoritative pronouncement of law on issue as regard ambit, scope, extent, limit and dimensions of the jurisdiction of this Court in the matter of transfer, this Court is of the firm view that the impugned transfer order is neither contrary to any statutory rule nor suffers from malice on facts as alleged the allegations are totally unfounded and devoid of substance. Hence, no interference is warranted under Article 226 of the Constitution of India as petitioner has failed to successfully challenge the impugned transfer order. In the opinion of this Court as challenge to the impugned transfer order is found to be unsustainable. There is no further scope to address on posting of respondent No. 4 as the competent authority cannot be denied or deprived its jurisdiction to order transfer in public interest as is found necessitated by exigencies of services. Petition sans merits, is hereby dismissed.