Skip to content


Shambhu Dayal Kureel Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 6 of 1982
Judge
Reported in1982WLN407
AppellantShambhu Dayal Kureel
RespondentUnion of India (Uoi) and ors.
DispositionAppeal dismissed
Excerpt:
.....under the said act. - was also withheld and ultimately he was ordered to be reverted from the post of assistant personnel officer to non-gazetted post vide order dated october 28, 1977. the appellant submitted detailed representations to various authorities, but without any success and ultimately he made representation to the state minister for railways on november 14, 1977. the reversion of the appellant was ultimately revoked by the railway board. 2 and 3. 4. learned single judge held that neither the general manager, nor the chief personnel manager were made parties to the writ petition, nor any malafides or improper motive was alleged against the aforesaid officers, who had passed the order of transfer annexure-2. simply because there was some dispute between the appellant and..........challenged order no. l (g) 838/35 dated october 31, 1981, whereby he was transferred from the post of assistant personnel officer, jaipur to the post of assistant personnel officer, baroda on the vacant post.2. the facts giving rise to this special appeal are that the appellant belongs to the scheduled caste and had received quick promotions under the roster system introduced by the government. as such he incurred the disple asure of the officers belonging to the general category and they started harassing him. the appellant belongs to kota division. he was promoted as assistant personnel officer in the scale of rs. 650-1200 vide order dated october 1, 1975 and was transferred from kota and posted are assistant personnel officer (pay commission) at jaipur. respondent no. 3 harendra.....
Judgment:

M.L. Shrimal, J.

1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment dated December 11, 1981 of the learned Single Judge dismissing S.B. Civil writ Petition No. 1694 of 1981, whereby the appellant challenged order No. L (G) 838/35 dated October 31, 1981, whereby he was transferred from the post of Assistant Personnel Officer, Jaipur to the post of Assistant Personnel Officer, Baroda on the vacant post.

2. The facts giving rise to this special appeal are that the appellant belongs to the Scheduled Caste and had received quick promotions under the roster system introduced by the Government. As such he incurred the disple asure of the officers belonging to the general category and they started harassing him. The appellant belongs to Kota Division. He was promoted as Assistant Personnel Officer in the scale of Rs. 650-1200 vide order dated October 1, 1975 and was transferred from Kota and posted are Assistant Personnel Officer (Pay Commission) at Jaipur. Respondent No. 3 Harendra Singh Senior Divisional Operating Superintendent, Western Railway, Jaipur bore ill will against the appellant. At his instance Shri Haldiya gave various notes of displeasure on the ground of lack of speedy disposal of the work under appellant's control. Shri R.C. Sethi, Divisional Superintendent also gave similar notes. His pay it E.B. was also withheld and ultimately he was ordered to be reverted from the post of Assistant Personnel Officer to non-gazetted post vide order dated October 28, 1977. The appellant submitted detailed representations to various authorities, but without any success and ultimately he made representation to the State Minister for Railways on November 14, 1977. The reversion of the appellant was ultimately revoked by the Railway Board. Although the word 're-promotion' has been used in the order, but in fact it was the order for revocation, because the appellant was paid salary for the interim period from October 28, 1977 to December 23, 1977 The appellant had also alleged a number of illegal actions taken by respondent No. 3 and other persons at the instance of respondents No. 2 & 3 His further averment was that the appellant applied for leave on illness of his wife, but respondent No 2 declined to grant leave on the ground that his request would be considered only when Senior Divisional Personnel Officer resumes duties. Shri D.N. Sharma was transferred, but the order of transfer was not given effect to on the ground of illness of Senior Divisional Personnel Officer, whereas respondents Nos. 2 and 3 by their manipulations got the appellant transferred to the post of Assistant Personnel Officer, Baroda and he was relieved on the same day and was made to sign antedated note, even though the order was served upon him on November 5, 1981. There had been a planned action against the appellant. His service record was damaged by respondent No. 3 from time to time and respondent No 2 and his predecessor-in-office played in the hands of Shri D.N. Sharma He made many representations, but it is his misfortune that his representations did not receive any consideration except in the matter of reversion. The Railway Board vide its letter No. E(SCT) 74 CM 1558 dated January 14, 1975 drew the attention of the authorities towards its letter dated November 19, 1970, wherein it was desired that the transfer of the Scheduled Caste and Scheduled Tribe employees should be confined to their native district or adjoining districts or places where the administration can provide quarters and these instructions should be followed to the maximum extent subject of course to the exigencies of service. However, in the case of the appellant, the transfer order was passed in flagrant disregard of the above noted policy decision of the Railway Board. There exist no reason for the appellant's transfer and no reason has been disclosed in the impugned order and thus the appellant has been discriminated with other persons belonging to the Scheduled Caste and Scheduled Tribe. The policy decision imposes a duty on the Railway authorities not to exercise the power of transfer arbitrarily against the appellant. The appellant was transferred in the middle of the session. The said transfer is prejudicial to the interest of his children, who were taking education in the schools and colleges at Jaipur. The appellant urged that the transfer was ex-facie arbitrary, unjustified and illegal and stood vitiated en the ground of malice.

3. The case of the respondents before the learned Single Judge was that 'he appellant had been continuing at Jaipur on the same post since March 15, 1976 and the transfer order was passed after his having worked at Jaipur for more than 5 1/2 years and as such the transfer cannot be said to be a frequent one The appellant was transferred in public interest and under the policy of the Railway Board that an officer should not continue at a particular place for a very long time. More over, the instructions contained in the letter dated January 24, 1975 are in the nature of administrative instructions and breach of the same cannot be made the basis for invoking extraordinary jurisdiction of this Court, because these instructions do not impose ban on transfer of the Scheduled Caste and Scheduled Tribe employees. The allegation regarding the appellant being compelled to make ante-dated note were denied and documents were submitted in support of the plea raised by the respondents. It was further urged that the order of transfer was passed by the General Manager, Western Railway, who held much higher post than that occupied by respondents Nos. 2 and 3.

4. Learned Single Judge held that neither the General Manager, nor the Chief Personnel Manager were made parties to the writ petition, nor any malafides or improper motive was alleged against the aforesaid officers, who had passed the order of transfer Annexure-2. Simply because there was some dispute between the appellant and local officers like the Divisional Railway Manager and Senior Divisional Operating Superintendent at Jaipur, it cannot be said that the impugned order was passed at their behest. Transfer from one place to another is one of the exigencies of service and must be accepted by a person who has entered employment with the State or Central Government. The appellant was in Jaipur for more than 5 1/2 years and as such his transfer cannot be said to be in any breach of the circular. It was not the case of frequent transfer. With these observations the learned Single Judge dismissed the writ petition, in limine. Hence this special appeal.

5. There is no dispute on the point that the post of Assistant Personnel1 Officer (Pay Commission), Jaipur as well as the post of Assistant Personnel Officer, Baroda are under the Western Railway and both the posts are in the same cadre. The main contention of the learned Counsel for the appellant is that the power vested in a particular authority to transfer any officer must be exercised honestly, bonafide and reasonably. It should be used in the interest of public purpose. If the power is used on extraneous considerations then its use would be malafide and colourable exercise of that power should therefore, be struck down. The impugned order having regards to the facts and circumstances of the casefalls in the category of malafide use of power & must be struck down.

6. Thus the main question which needs to be determined in this case is whether the transfer of the appellant is arbitrary & malafide The law regarding transfer of a Government servant from one post to another can be summarised as under : In public service transfer is an incident of service. Transfer of an employee from one post to another is often necessary for a proper management & (control) of the administrative machinery. It can, therefore, be said that the power of transfer is an essential attribute of the power of administrative control. Since transfers are made for reasons of administrative exigencies, the authorities in charge of the administration would be the best judges of the propriety, necessity or desirability of such transfers. The exercise of administrative discretion in the matter of transfer of an employee from one post to another would not be open to challenge except when the said discretion has been exercised in an arbitrary and unreasonable manner so as to violate the right to equality guaranteed under Articles 14 and 14 of the Constitution of India or has been exercised malafide with an ulterior motive or for an extraneous purpose. An order of transfer would not be open to attack under Articles 14 and 14 of the Constitution of India, if the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post.

7. When the petitioner makes out a prima facie case of malafide, the respondent State Government or the Union Government is bound to place full material before the Court to justify its action. In such a case if the State Government simply states that the transfer has been made in exigencies of service and does not put sufficient material to show that the action was bonafide, the argument cannot be accepted and the Court can examine and determine for itself whether the order was bonafide or not. But it should not be forgotten that if an order of transfer is challenged on the ground of malafides, it will be for the Government servant who is assailing the order to establish malice on the part of the authority who has passed the order, because the burden of establishing malafides lies on the person who alleges it. Allegations of malafides are often easily made than proved and the very seriousness of such allegations demands proof of high order of cradibility The Court, therefore, is always slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when imputations are grave and have been made against an officer holding a post of higher responsibility in the administration.

8. The appellant wants us to believe that he is very honest and efficient officer and as respondents Nos. 2 and 3 do not want the honest officer, they got rid of him. A perusal of the petition shows that no allegations have been made against the General Manager nor against the Chief Personnel Manager. The petition further fails to show as to how respondents Nos. 2 and 3 who were much subordinate officers in the ladder could prevail upon the General Manager latter to transfer the appellant. Para 7 of petition shows that Shri D. N. Sharma, managed to keep himself in good books of the high ups and had direct approach to the various authorities including respondents Nos. 2 and 3, but nowhere it reads that who are those high-ups and whether he had any influence or relation with the General Manager, Western Railway. Inaction on the part of respondent No. 3 in the case of transfer of Shri D.N. Sharma may be an act of denigration of duty on the part of respondent No. 3. Any inaction or wrong action on the part of respondent No. 3 cannot substantiate the case of malafide raised by the appellant.

9. The contention of the learned Counsel for the appellant that some of the officers at Jaipur have not been transferred for a pretty long time and are staying in Jaipur for more than 20 years, does not create a right in favour of the appellant to be kept at the same place and on the same job for more than five years. The learned Single Judge has held that the appellant was transferred in pursuance of the circular of the Railway Board, which requires that persons should generally be not kept at one place for more than five years. This circular appears to be in the interest of efficient administration, so that a particular officer may not develop vested interest at a particular place. We have carefully perused the Railway Board's circular dated January 14, 1975 (supra). What the Board wanted to convey by this circular is that the employees belonging to the Scheduled Caste & Scheduled Tribe should not be frequently transferred, It provides that they should be transferred, if required, in the exigencies of service to the adjoining districts or places where the administration can provide quarters. It is not the grievance of the appellant that no quarter is available to him at Baroda. The Government has power to transfer persons from one place to another. It is always a difficult problem for the Government to find suitable officers for each post. The Government has, in the circumstances, to make the best possible choice, it can, keeping in view the larger interest of administration. When in exercise of this choice the Government transfers an officer from one post to another, the officer may feel unhappy because the new post does not give him the same amplitude of powers or the same convenience. , He is no doubt removed away from his old acquaintances and some times the children's education also suffers, but that does not make the transfer arbitrary so long as the transfer is made on account of exigencies of administration. On the material placed-on record it cannot be said that the appellant was arbitrarily or unfairly treated or equality was denied to him when he was transferred from the post of Assistant Personnel Officer (Pay Commission), Jaipur to the post of Assistant Personnel Officer, Baroda. There is nothing to hold that he has been singled out or discriminated We are unable to agree with the contention that the appellant's transfer was in malafide exercise of power and accordingly invalid. It should be made clear that we are not called upon in this case to inquire into the misdeeds of respondents Nos. 2 and 3 or Shri D. N. Sharma or inaction on the part of higher authorities in not deciding various representations made by the appellant. It is not within our province to embark on a far flung inquiry into the case of commission or omission charged against respondents Nos. 2 and 3. That is not the scope of enquiry before us and; we must decline to enter upon any such enquiry. It is one thing to say that the Union Government or the General Manager have ignored the misdeeds of other persons and another to say that the Union Government had malus animus against the appellant, which was the operative cause for the displacement of the appellant from the post of Assistant Personnel Officer, Jaipur. We cannot permit the appellant to side track the issue. The only question-before us is whether the action taken by the respondent No 1 through the General Manager, Western Railway includes any component of malafide as whether hostility and malus animus against the appellant were the operative cause of transfer of the appellant, our answer is in the negative.

10. We, therefore dismiss this special appeal with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //