<"• S .v°o IN THEHIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARHl W. P. N0. 3216 OF 2004 PETITIONER Prem Ratan Rathi, S/o Late Shri M. L. Rathi, aged about 49 yrs, Occupation Service, posted as Sub Divisional Officer, Tandula Water Resource S.Dn.No.l Admabad, Distt. Durg [CG] /~k/ VERSUS RESPONDENTS yw'\ ...-••• '^•"" 1. ^' State of Chhattisgarh Through Secretary, Water Resources Department, Mantralaya, Dau Kalyan Singh Bhawan, Raipur[CG] S. K. George, Assistant Engineer [Design], Mongra Water Resource Division Dongargaon, District Rajnandgaon [C.G.] WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS PROmBITIQN AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: .Cs' ro/ 1 / HiGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Writ Petition No.3216 of 2004 Prem Ratan Rathi - Versus - State ofChhattisgarh and another POST FOR ORDER ON 15 APRIL. 2005 SA'- L.C, IJ^.4.2005 ^G) HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Writ Petition No.3216 of 2004 Prem Ratan Rathi - Versus - State of Chhattisgarh and another Present: - Mr. Manindra Shrivastava, Senior Advocate with Mr. Afroz Khan, Advocate: IVIr. U.N.S. Deo, Govt. Advocate: Mr. K.A. Ansari, Senior Advocate with Mr. M.K.Sinha, Advocate: For the petitioner. Forthe State/respondent No.1 For respondent No.2. ORDER (Passed on 15th April, 2005) L.C. BHADOO, J. 1. The petitioner, who is working as Sub Divisionai Officer in the Water Resources Department, Government ofChhattisgarh, has preferred this writ petition under Article 226 of the Constitution of India, questioning the legality and propriety of the order dated 10-9-2004 passed by the Under Secretary, Department of Water Resources, Government of Chhattisgarh, whereby he has been transferred from the post of Sub Divisional Officer, Tandula Water Resources Sub Division No.1, Admabad to the post of Assistant Engineer (Rural), Mongra Water Resources Division, Dongargaon. 2. Brief facts leading to filing of this writ petition are that since IVIay, 2002, the petitioner was working as S.D.0., Hasdeo Sub Minor Sub Division No.3 at Sakti, howsver vide order dated 7-8-2004 he was transferred to Tandula Water Resources Sub Division No.1 at Admabad in place ofS.K. George, respondent No.2 herein, on administrative ground. In pursuance of that order, the petitioner handed over the charge on 23-8-2004 and he submitted his joining report Annexure P-4 on 24-8-2004 to the Executive Engineer. However, respondent No.2, in whose place the petitioner was Page2of5 transferred, remain absent from the duties since 18-8-2004. Since respondent No.2 was not available, the petitioner assum.ed the charge of Office on 24-8-2004 and informed the Executive Engineer for suitable instructions. However, vide the impugned order dated 10-9-2004 the petitioner was again transferred to Dongargaon and respondent No.2's transfer order was cancelled. The main ground taken by the petitioner for assailing the impugned order is that respondent No.2 was able to obtain the impugned order on aceount of extraneous politicat pressure and the same has not been passed on administratwe exigency. The petitioner has been transferred twce just to accommodate, earlier one Ramesh Kumar Chaudha and thereafter respondent No.2, and the said order has been passed in the garb of modification of earlier order which is bad and unsustainable in law, and an inference can be drawn that the same is passed on mala fide and arbitrary exercise ofthe power. 3. Return has been filed on behalf of the State/respondent No.1 that the impugned order has been passed on the ground of administratwe exigency and it is denied that the same has been passed just to accommodate respondent No.2. The impugned order is an amendment, but not a fresh transfer order and the earlier order has been modified by the impugned order. Therefore, the writ petition be dismissed. 4. Respondent No.2 has also filed return and he has submitted that he has already assumed the charge on 10-9-2004, and the impugned order is a modification of the earlier order. 5. I have heard leamed counsel for the parties. 6. The settled law with regard to exercise ofjudicial review by the High Court under Article 226 of the Constitution of India in the matter of transfer of a Government employee is that the order of transfer is an incident of service, and it is for the appropriate authority to decide that who should be transferred where. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. This has been held by the Apex Court in the matter of Union of India and others v. S.L. Abbasreported in AIR 1993 SC 2444. ____ ^ Page3of5 7. Again in the matter of Rajendra Roy v. Union of India and another reported in AIR 1993 SC 1236, the Apex Court held that "tt is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation ofthe rules ofserviee and guidelines for transfer without any properjustification, the Court and the Tribunal should not interfere wth the order of transfer. It may not be atways possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions." 8. In the matter of State of U.P. and others v. Gobardhan Lal reported in 2004 AIR SCW 2082, the Apex Court held that "it is not 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 goveming or conditions of service. Unless the order of transfer is shovm to be an outcome of a mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order oftransfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. An officer or a servant cannot deprive or deny the competent authority to transfer a particular officer/ser/ant to any place in public interest and 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." The Apex Court further held that "The Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even altegations 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." ,___-—--- /< € '^ rl"; Page4of5 9. in the matter of Kendriya Vidyalaya Sangathan v. Damodar Prasa:! Pandey and others reported in 2004 AIR SCW 5S63, the Apex Court hel:i that "Transfer which is an incidence of sen/ice is not to be interfered with by the Courts untess it is shown to be ciearly arbitrary or visited by mala fide or infraction of any prescribed norms ofprincipies governing the transfer." lO.Therefore, in view ofthe above iaw, ifwe look into the facts ofthe preserrt case, the petitioner has raised the point that he was transferred in Augus:, 2004, just to accommodate Ramesh Kumar Chaudha and vide thEi impugned order dated 10-9-2004 within a period of 15 days from joining the new place of transfer, he has again been transferred to Dongargaori, hence, the order is devoid of any administrative exigency, same is arbitrary and mala fide just to accommodate respondent No.2. Whereas, the repiy of the State/respondent No.1 is that the earlier order was passed In administrative exigency and the impugned order is not a transfer order, but an amendment order ofthe earlier order. Vide order dated 7-8-2004 'Atsen the petitioner was transferred from Sakti, he had worked there a!nost two years, therefore, that cannot be said to be an immature transfer. As far as the second order i.e. the impugned order is concerned, the petitioner was transferred in place of respondent No.2, and vide the impugned orde" respondent No.2 has been kept on the same place and the petitioner hss been transferred to Dongargaon wtiere respondent No.2 was transferred. As respondent No.2 was transferred and he has been kept at the same place as a consequence of vrfiich the petitioner has been posted at Dongargaon in place of Admabad and that place is not at a ven/ iong distance, therefore, it cannot be termed that the impugned order is ;n ary way a mala fide exercise of power or same has been passed to adjuit respondent No.2. As has been held by the Apex Court in the above cit'E:d judgments in order to prove and establish mala fides the petitioner WEIS required to plead with a cogent pleading that he has been transferred on mala fide exercise of power. Not only pleading the petitioner v/as requir&d to establish by material how the order is mala fide. Simply because f'a transfer order of respondent No.2, in whose place the petitioner WE-IS transferred, has been canceiled on the ground of administrative exigencylt Page5of5 cannot be termed as mala fide and arbitrary or it cannot be inferred from the facts and circumstances that the said exercise by the appropriate authority is mala fide or arbitrary in any manner. There is nothing on record So show that the transfer of respondent No.2 was caneelled contrary to guidefines i.e. respondent No.2 was working there since long time. 11 .The petitioner has not been able to estabtish that the orders dated 7-8-2004 and 10-9-2004 are in any way arbitrary or mala fide or the same have been passed just to accommodate respondent No.2 or Ramesh Kumar Chaudha. 12Jn the result, l am ofthe opinion that the petitioner's petition is of no merit, the same is liabie to be dismissed and it is hereby dismissed. !n the facts and circumstances ofthis case, there will be no order as to costs. Sdf- L.C. Bhadoo Judge ao^ma