c &-^o5^^ IN THE HI©HCOURT OF JTODICATURE AT BILASPUR (C.G.) WRIT PETITION N0. ^^Tf9z' /2004 iUdiii PETITIONER Ramesh Kuruar Jaiswal, S/c>. Late Shri G.P. Jaiswal, Aged about 40 years, Occupation - service, Presenlly working as Assistant Teacher, Balak Ashrani, Premnagar, District Surguja (C.G.) <^-'"' __l>a^'_„__„__' RESSPONDENTS VERSUS 1. State-ofChhattisgaFh, Through SecretaiY, Department bf School Education, Mantralaya, D.K.S, Bhawan, Raipur (C.G.) 2. CoUeGtOF(Tribal Develbplnent), Ambikapur, | ; District Surguja (C.G.) I 3. Ashok Kuinar Sahu, ' Sahu Diagnostic Centre, ; PreiEtnagar, | DistrietSurguja (C.G.) ; ; 4. Ashok KumarJagate, ! I MIA Representative, j Premnagar, , District Surguja (C.G.) : | WRIT PE^TrXS VJmEKJ^EISS^^60^'JS^CaS^Sa3'lSS li o^'^Hi[&^^ii^^iiss^wSKiSKyiUE6K QWiE:^ ntftm3ffllBBtS.;J;]©^NaORaBiaaBfi >! dRt|^i^:!G>i%^<3R^©iBBiiifiSiiiMnEBWl6R; IWit 313 II !:'1!1 K' ^.1; M) HIGH COURTOF JUDICATURE AT BILASPUR (C.Gt WritPetitioa No.259? of 2004 Rameph Kuinar Jaiswal Vs. State of Chliattisearli and ofhers 4< ^^< V ^y^ ,0^ ^; '^ Post for 23.02.2005 Sd/- Sunil Kumar Sinha Judge 1 ^S! HIGH COURT OF JUDICATURE AT BILASPUR (C.Gi Wrlt Petition No.2597 of 2004 Ramesh Kuinar Jaiswal Vs. State of Chhatdsgarh and others Shri Maaindra Shrivastava, Sr. Advocate wifh Sbri Ashish Shrivastava, counsel tbr fhe petitioner. Shri U.N.S. Deo, Govt. Advocate for respondents No. 1 & 2. None for respondents no. 3 & 4. (23.02.2005) Sunil Kumar Sinha, J., The petitioner is aa Assistant Teacher. He has challenged. the validity ofhis ta-aasfer order dated 31.7.2004 (Annexure P-1) fcy which he has been transferred fi-om. Balak Asliraco., Preranagar; Block Preinnagar, Distt. Sarguja to Priiaaiy School, Dhavli, Block Ramchanderpur, Distt. Sai-guja. (2) The case of the petitioner is tliat he was posted ia Balak Ashraiu, Preinnagar on 14.6.2000 aad since fben he wa.s working on fhe said place. Thei^ are in aU 4 Assisteint Teachers iiicluding the petitioner agaiast six saactioned posts. Thus, stiU tliere are troo vacaacies lying in. fhe Ashraiu. The fhree other assistaiit teachers who are posted fhei-e are senior to the petitioner aad ai'e posted fhere prior to fhe date of posting of fhe pedtioner. Tl..e •^ (B-/ ~^-- petitioner alleges fhat though his traasfer has been showu to be o:a adixdaistrative grounds, but ia fact he has not been transferred oa any adiainistrati.ve exigencies, but has been traasferred on accourj.t of recoiainendations of two local politicians i.e., respondents no.3 & 4 hereia who approached fhe CoUector and told him ttiat fhe petitioner should be transferred because the brofher of fhe petitioner nainely Virendra Kuiaar Jaiswal is a Cougress worker. He farftier alleges that soine frivolous and niotivated coiaplaiut aas been inade against fhe petitioner and in fact, tlie traasfeiTing aufhority, fhe CoUector ought not to have taken cognizance of th&t unless it was given in writing, but ia order to please tlie poUticia-ns fhe CoUector traasferred the petitioner. His transfer is colourable exercise of power as fhe collector did not conduct aiiy enquhy 011 such report. Therefore, on a inere coinplaiat m.ade, the order of transfer passed by tlie CoUector is an out coiae ofaialafide. (3) Retum has been filed on behalf of responden'ts no. 1 and 2. These respondents have denied the aUegations raised by fhe petitioner. It is contended vide para 2 of fhe retum th.a.t the petitioner has inade vague and ftivolous allegations th.at he Iias been traiisferred due to political reasons because his broflier is a Congre-ss party worker. It is also contended that fhe aBegations in relation to the traasfer at the iustauce of respondents no.3 and 4 are iacorrect aad are, in fact, vague aad frivolous. It has also been added vide reply to Para 5.8 fh.at ttie traiisfer ofthe petitioner has [t^- -i- been done pl-u-ely on administrative exigencies aad tlie same is within fhe fraiae work ofthe transfer policies ofthe State. (4) Respondents no.3 and 4 have not caused fheir appearai'ice fhoiigh fhev have been seived. (5) Leamed counsel for fhe petitioner argues fhat in fact the inipugned traasfer order is actuated by nialafides. He furftier argues fhat the traasfer has been effected at the behest of respondents ao.3 aad 4 and B a poiitically inotivated trEuisfer. Tlie CoUector has exercised his j'drisdiction on extraiieous considerations perfecflv succuinbiag to the poUtical presszu'e created on him.. There is no exigency of service or pubUc iiiterest aad fb.e action ofaufhorit\7 is arbitrarv'. (6) First of all, tlie poiat of writ jiirisdiction of the Court as To interfere wifh an order of transfer is to be considered. It has toeen held by fh.e apex Court in the matter of State of U.P. a.nd othera, Apoeaats -Vs- GobdTdhan Lal, Resixsndetit isMh B.B.Sliifi'h^ swRellant -Vs- D.K.Shukla and others, respandeitts repcrted in 2004 AIR SCW 2082 that the courts or Tribunals do not sit ss fhe appellate authority over fhe transfer orders. The questions iavolved as to whefher ftic transfer order was passed due to poUtical pressure or not is a disputed question of fact whicb. / '/?.y '; ^c- ,/' -L<- caiuiot be gone into by the High Court whfle exercising writ jurisdiction. (7) The petitioner has made allegations that iu fact he has been transferred at fhe instance of respondent nos.3 aad 4 because he happens to be fhe broftier of a Congress worker but fhese aUegations are speci&caUy denied by respondents no.l and 2. The aUegations in relation to a coiiiplaint being filed again.st the petitioner by ftiese private respondents have also been deujed by respondeats no.l and 2 aiid fhese respondents have sunply uttered that the transfer of the petitioner has been effected in a generaUzed inanuer wifhia the frame work of fhe policy aad is not at all coruiected either wifh aiiy coiaplaiat or with any pi-essure of respondents no.3 and 4. As laid down by the apex Court, the aUegations ofpolitical pressure ete., are fhe questions of fact but in fhis case even the above facts, have not been supixirted by asy inaterial on record except the vague and general pleadings of tfie petitioner aad denial by fhe respondents. There is no inaterial for fhis CouTt to assess as to whefher there was any poUtical pressure or there was any com.plaint agamst tb.e petitioner. This ground is vague aad general and fhe sanie cannot be entertained. (8) Saine is the result wifh the ground of extraG.eous consideration. In case of general transfer iinder the policy: particularly in case when the petitioner is posted ia his present /'W'i, ' ^^' -?• place ofpostmg since 14.6.2000, unless fhe contrary is brought OB record it caruiot be said fhat a tran.sfer after lapse of 4 years would be a transfer on extianeous considerations. (9) About the inalafides and arbitrarm.ess, learued counsel for fhe petitioner relies llpon the aUegations raised in the writ petition aud subiuits fliat siace fhe petitioner happens to toe fhe brother of a congress worker, fherefore, he has been transferred froiii his present place of postnig i.e., from. Premnagar to Village Dhavli ia Block Rainchanderpur. He further prays for assessing tlie inala&des also on fhe ground tliat fhe petitioner Iias been disturbed froni his present place of posting at ftie instance of tbe coniplaints m.ade by respondents no.3 and 4. (10) I have prepared fhe records on this line also. The said traasfer is an iatra-district traiisfer asd there is no violation. of asv statutoiy provisioa in fhis niatter. As I have ab-eady stated above, no coiuplaints of respondents no.3 aad 4 have been brought 011 record. Even fhe CoUector has denied about any such conipl.ab^t inade by respondents no.3 and 4 against the petitioner. Tbe transfer has not been m.ade on any coinplaint. If the rualice woulcl have been on ftie part of these respondents, it woidd have been brought on record by fhe petitioner by pointing out suay sucli instaace or act which niay constraio. a norraal lueuu to hold it established 011 record for chaUenguig fhe validity of an order of x-! -6- traasfer. The petitioner has not pleaded or brought on record thst his traasfer is inalafide because he has been thrown te a reinote/distant place froni where he was workuig fhat too at the instance of respondent nos.3 & 4. Simple traasfer of aa eniployee caruiot be held to be nialafide. Ifthe ground ofnialLce is taken then what benefit or loss is gohig to be caused also becomes a factor foi consideration. The petitioner has neifh.er pleaded nor estabUshed as to what is gairied bv shiltiug the petitioner fi~om. Prertinagai' to Dhavli, how it wQl be beneficial to the persons of ctlier party cr how fhis action is in fact favouring anv one or how it is troublesonie for the petitioner when he is directed to work ii^ DhavU. in place of Preinuagar ia fhe same capacity 011 fhe ssiiie post. Ifall fhese facts are unanswered or uuelaborated by way of pleading or by way of placing relevaiit dociiments on record or 'by way of quoting instan.ces or aiiteceden.t.s fhen it caanot be said tliat ia fact the trausfer of fhe petitioner has been actuated \vitli inala&de uitentious. In fact, after considering fhe argum.eats advaaced by counsel for the parties it appears that the petitioner has not been able to substaatiate fhat fhe impugned order of transfer was passed mala&de agamst him or the same was a result of an arbitraiy action on the part of transferrm.g authoril;-. Ttie vague and general aUegations cannot estabUsh arbitrariness cr niala&de agaiast aay person so as to iuterfere witli his act which he has done in. fhe of&cial capacity in a general niaiiner wiftua tlie frame work of fhe policy in. accordance wifh law. I aio. foi-ti&ed a:i /''/? -7- iny views by a decision ofthe apex Court rendered ia tlie inatter of Rctfendra Roy -Vs- Union of India and others reporte^. in AIS 1993 S.C. 1236, which lavs dowu that it inav not be abvavs possible to estabUsh lualice m. fact in a straight cut inaniter. In aii appropriate case, it is possible to draw reasonable inference of miala fide action froni fhe pleadings and aatecedent facts aiid circunistances. But for such iufeicnce fhere niust be fii-m. foundation of facts pleaded and estabUshed. Such mference caiinot be drawu on the basis of m.siuuation aad vague suggestions. (Please see Para 7). (11) In the series ofjudginents, the Apex Coiirt has held that tlie transfer is an uicidence of service aud is not to be iaterfered with by the Courts uiiless it is shown to be clearly arbitrary or visited by inalafi.de or iafraction of any prescribed nonns of principles goveruiag the traasfer. Refenliig to fhe decisions reported in 1995 fSiippl) 4 SCC 169 fAmbfmi Santa Ra.fi -Vs- State of Orlssaj aud AO? 1993 SC 2444 {Union oflnd.ia. -v- 3.L. Abbas}, tbe ape>; Court has laid down this law ia fhe matter of Kendriya. Vidyaiaifa SemfiCtthan. -Vs- in. 2004 AIR S.C.W. 5563. In this judgment itself, th.e apex Court in latter part of Para 4 uientioned the obsei-vations reiiderecl in fh.e matter of Union. of Indla & others -Vs- Jcm.wdtm that :- ^ \ ''-%? -%- 'No govemment servant or employee of a. pubUc undertaking has cozy lega! right to be postedfor ever at any one particular place or place of his choice since transfer of a partiailar employee appointed to the class or category of transferable posts from one place to anothe'r is not onJy an inddent, but a condiiion of seivice, necessary too in puhlic interest and efficsency in the public administraiion. Unless an order of Iransfer is shown to be an outcome of inalafice exerdse or staied to be in vioJation of statutor'y provisions prohibiting any such transfer, the Courts or the Tribunals norma.Uy cannot intejfere itfith such ,'irders as a matter of routine, as though they ivere the appellate authorities substituting their own dedsion for that of the einployer/ managem.enl, as againsi such orders passed in the inierest of adniinistrative exigendes of 'fhe service concemed . The apex CouTt further referred to fbe decision reported ic. the luatter of NaUoiud Hydroelectric Power Corpn. LtS.., -vs- Shsi Bhayuwn, (2001] 8 SCC 574. (12) The above series ofjudginents pronounced toy the apex Couil at various points of tinie go to show that a veiy limited scope is iiven for interference with an oi'der of traasfer passed by the conipetent aufhority. If tlie jurisdiction aad tlie az-ithority is .aot chaUenged nor there is auv challenge on fhe ground of violation of aay statutory niles then unless the malafide, arbitrariuess or extraaeous considerations are established bv coiuing fonvai'd wit'h definite pleadings aad by bringitig soiue eviclence on record, it cannot be said fhat the transfer whicli has been shown to bs purely on ftie adniinistrative exigency will not be accepted to be a norm.at traasfer. -5- (13) In the preseat case, ia fact, the petitioner has been fafled to defiiutely plead and substantiate about inalafides or fhe arbitrariness on fhe part of the respondents. He has also been fafled to 'establisti any iustauce of extraneous consideration or poUtical aiotivation, ia absence of which the contention of the respondents regarding transfer on adiaiaistrative ground is to be upheld. When the petitioner who is posted at a place for more than 4 years has been traasferred by fhe authorities against which fhe petitioner could not establish aay of the aforesaid groiinds then this court is left with no option except to disiniss the petitiou. In fact, this Court finds no inerit ia tfae petition and fhe same is disnussed wifhout any order as to fhe costs. Sd/- Sunil Kumar Sinha Judge -— -23.027:20D5 - /Rao/ .^