IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11289 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ======================================================== 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO ---------------------------------------------------------- NATVARLAL MOTILAL CHAVDA Versus STATE OF GUJARAT ---------------------------------------------------------- Appearance: MR MK VAKHARIA for Petitioner MR AD OZA GOVERNMENT PLEADER for Respondent No. 1 MR SN SHELAT ADDL ADVOCATE GENERAL with MR ASIM PANDYA for HL PATEL ADVOCATES for Respondent No. 4 ----------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 05/12/2000 CAV JUDGEMENT By means of filing the present writ petition, the petitioner seeks to challenge the order of transfer dated 30th October, 2000 transferring him from the present position to Rajpipla. At the time of admission hearing on 3rd November, 2000, this Court had issued notice to the respondents and thereby granted status quo to be maintained till 8th November, 2000. The order of status quo has subsequently been extended from time to time till the date of hearing the present writ petition. In the present petition, the respondent no. 4 has filed Affidavit-in-reply. The respondent nos. 1 & 2 have also filed reply against the main Special Civil Application. Against both the documents, the petitioner has filed detailed rejoinder countering the averments made therein. Civil Application No. 10349 of 2000 has been filed by the respondent no. 4 for vacating the ex parte interim relief granted by this Court on 3rd November, 2000. Against the said Civil Application, the petitioner has also filed a detailed affidavit-in-reply, which has been taken on record. The brief facts of the present writ petition are the petitioner joined service of the Government in the year 1997. Since about the year 1995, the State Government transferred the petitioner from one place to another within a short span of about 1 and half month to 11 months. In the year 1995, the petitioner was working as an Assistant Commissioner, Sardar Sarovar Nigam. On 28th October, 1995, the petitioner was transferred from the post of Assistant Commissioner, Sardar Sarovar Nigam to the post of Special Land Acquisition Officer, Rural Roads Project, Gandhinagar. However, within a short span of one month, the petitioner was again transferred to Gujarat Backward Class Development Corporation at Gandhinagar as the Managing Director and he took charge on the said post on 2nd December, 1995. Thereafter, the petitioner was transferred as Chief Personal Officer, Health Department, Gandhinagar where he joined on 16th June, 1997. The petitioner worked in the Health Department for about four months and then he was transferred to Gujarat Backward Class Development Corporation as Managing Director where he performed his duties from 28th November, 1997 to 4th June, 1998. Thereafter, the petitioner was again transferred as Member Secretary, Gujarat Sangeet Natak Academy, Gandhinagar, however, within one and half month from the date of his joining as such, the petitioner was again transferred as Joint Commissioner, Women & Child Development Department, Ahmedabad. The petitioner performed his duties in the said Department from 12th August, 1998 to 4th January, 1999. The petitioner was, however, again transferred as Deputy Development Commissioner, Ahmedabad. However, before completing one and a half month there, on 23rd February, 1999, he was again transferred and posted as a Joint Commissioner, Women & Child Development Department, Ahmedabad. Thereafter, after about 11 months period, on 24th January, 2000, the petitioner was transferred and posted as Deputy Commissioner, Mid-Day Meals Scheme, Gandhinagar, where the petitioner worked as such for about four months and then again on 25th May, 2000, he was transferred and posted as Welfare Commissioner, Gujarat Labour Welfare Board, Ahmedabad and since 25th May, 2000, the petitioner has been discharging his duties on the said position. According to the petitioner, within a short span of about five months, the petitioner is again sought to be transferred to the office of the Project Administrator, Tribal Development Department, Rajpipla on some political considerations. The said transfer order dated 30th October, 2000 has been challenged in the present writ petition on the grounds, inter alia, that the same being malafide, illegal and against the settled policy & guidelines issued by the State Government in the matter of transfer of its employees and also on political considerations. According to the petitioner, considering the averments made in the present writ petition, it would be clearly evident that the present transfer to Rajpipla is made with a view to harass the petitioner as he has not succumbed to the unreasonable demands made by the Chairman, Gujarat Labour Welfare Board-the present respondent no. 4. It is averred in the petition that during the last five years, the petitioner has been transferred from one place to another for about ten times and that too within a short intervals. The petitioner has produced newspaper cuttings at Annexure-A wherein the petitioner has been stated to have been transferred from Welfare Commissionerate, Labour and Employment to Tribal Sub-Plan, Rajpipla. The petitioner has also produced a note wherein the respondent no. 4 has demanded services of one peon and a driver as a personal staff of the Chairman of the Board. Petitioner has also produced guidelines issued by the State of Gujarat in respect to transfer of Gazetted Officers wherein it is provided that unless and until such Gazetted Officer had not completed three years' service at a given place, he should not be normally transferred from that place of posting. The main grievance appears to have been made against the respondent no. 4 herein. In paragraph no. 7 of the writ petition, the petitioner has pointed out that the respondent no. 4, the Chairman of the Gujarat Labour Welfare Board, use to raise unreasonable demands from the petitioner which are not allowed as per the circulars and notifications issued by the State Government and also are against the rules and regulations. According to the petitioner, one of such demands was with respect to appointment of nephew of the brother of the respondent no. 4 as a peon and another relative as a driver in the Board. As the petitioner was unable to fulfill such unreasonable demands, ultimately it resulted into transfer of petitioner to Rajpipla because the respondent no. 4 has made a complaint against the petitioner to the Chief Minister and other Ministers and the Board pressured upon the concerned authorities to transfer the petitioner from the present post so that the respondent no. 4 could fulfill the requirement, as per his wish. Therefore, as a result of such pressures and a complaint made by the respondent no. 4, the petitioner has been transferred from the post of Welfare Commissioner, Gujarat Labour Welfare Board to the post of Project Administrator, Tribal Development Department, Rajpipla within a short span of five months from the date of joining the present position. Countering the allegations levelled in the present writ petition, in response to the notice issued by this Court on 3rd November, 2000, the respondents nos. 1,2 and 3 have jointly submitted their reply. The said affidavit-in-reply dated 8th November, 2000 has been filed by one Shri Harsh V. Brahmbhatt, Deputy Secretary, General Administration Department, Sachivalaya, Gandhinagar, for and on behalf of the present respondents nos. 1,2 and 3. All the allegations made against the respondents have been specifically denied by the deponent. In the said reply, the deponent has averred that the service record of the petitioner is not satisfactory and the same has been elaborately discussed in reply at paragraph nos. 3,4 and 5. It is averred that the petitioner, on number of occasions, due to his temperament, invited conflicts and as a result thereof, the atmosphere in the government services had been disturbed. It is further averred in the said reply that it is the prima necessity in any job to have cordial atmosphere, therefore, the transfer of the petitioner is just, legal and proper. The respondents have given details about each transfer made on earlier occasions which appears to have been made mainly because of petitioner's arrogant behaviour and quarrel some nature with the higher and subordinate officers. It is averred that due to these reasons, on each occasion, it was necessary for the government to transfer the petitioner from one place to another within a short span. In the reply it is further pointed out that it is only due to frequent complaints received against the petitioner about his arrogant nature, misbehaviour with the superior officers and subordinate officers and the quarrel some nature that the petitioner is transferred. It is averred in the said reply that when almost all the officers and subordinate staff members are complaining about this aspect, it cannot be said that all of them are wrong or biased towards the petitioner. It can also be seen from the above mentioned details that the Government has never been vindictive or prejudiced towards the petitioner because had it been so, he could have been transferred to any corner of the State ranging from Kutch to Dangs but the Government has not done so. Barring the last appointment at Rajpipla, the petitioner has consistently been kept at Ahmedabad or Gandhinagar. The respondents have also denied that the transfer of the petitioner is made because of the pressure from the Chairman of the Gujarat Labour Welfare Board, Ahmedabad. It is stated that the Labour Welfare Board is an Autonomous Body where the Welfare Commissioner is to be appointed by the Board with the previous approval of the Government, and therefore, the Board is the appointment authority. If the Board does not want the service of an officer, and a report to that effect is made to the Government, the Government cannot continue that officer with the Board, and this is the only reason for the transfer of the petitioner from the Board and there is no mala fide in the transfer of the petitioner from the present post as Welfare Commissioner. The respondents have also pointed out in reply that the frequent transfers of the petitioner are attributable only to the nature and method of working of the petitioner; irrespective of rule of any political party. It is averred that when the petitioner indulges in intemperate behaviour or exhibits arrogance of nature with his superiors, colleagues as well as subordinate staff, in almost all the organizations where he had worked, the transfers are inevitable irrespective of the general guidelines on transfers of Government officers. It is further averred that the Government's attitude towards the petitioner has always remained sympathetic, and therefore, despite all these complaints, he has been retained either at Ahmedabad or Gandhinagar and has not been sent to far flung areas of the State. In paragraph 10 of the reply, the averment made by the petitioner with respect to his transfers being made due to political background of his father is denied. The respondent no. 4 has also filed a detailed reply against the present writ petition. The respondent no. 4 has pointed out that the appointment of the Welfare Commissioner is required to be made by the Board itself, with the previous approval of the State Government. The Labour Welfare Board is an autonomous Board constituted under the Bombay Labour Welfare Fund Act, 1953 and has been conferred right and privilege under Section 11 (1) of the said Act to appoint a Welfare Commissioner of his choice, with the previous approval of the State Government. It is averred in the said reply that the petitioner has not been appointed by the Board or the State Government, in accordance with the provisions of Section 11 of the Act, and therefore, he has no right to seek any relief for continuing him on the said post. The respondent no. 4, in his reply at paragraph no. 6, has denied all the allegations of mala fide and submitted that the respondent no. 4 has not brought any pressure on the Government, as contended by the petitioner. The confidential notes upon which the petitioner has placed reliance has no relevance with his withdrawal from the Board. Further, the notes upon which the petitioner seeks to place reliance have been made by the Chairman on 7th April, 2000 and 15th April, 2000 when the petitioner was not there on the Board as the Welfare Commissioner. It is pointed out in the reply that the petitioner came to be deputed by the Government on the Board with effect from 25th May, 2000 that too without compliance of the provisions made in Section 11 of the Bombay Labour Welfare Fund Act, 1953. The respondent no. 4 in his reply at paragraph no. 8 has submitted that after the petitioner was deputed by the Government to the Board, his attitude was not cooperative and harmonious with the members of the Board and other staff, therefore, the respondent no. 4 made a request to the Government disclosing the Board's intention not to avail off the services of the petitioner, and for making appropriate arrangement for withdrawal of his services from the Board for the proper, peaceful and harmonious functioning of the Board. Against the reply filed by the respondents nos. 1,2, 3 and 4, the petitioner has filed an affidavit-in-rejoinder denying the averments made in the respective affidavits filed by the respondents herein. Heard the learned advocate Mr. Mehul Vakharia appearing for and on behalf of the petitioner. Learned advocate Mr. Vakharia submitted that because of the Chairman of the Board, the respondent no. 4 herein, the petitioner has been transferred from the post of Welfare Commissioner. He submitted that because the petitioner did not succumb to the unreasonable demands made by the respondent no. 4, he is sought to be transferred from the present post within a short span of five months. Mr. Vakharia contended that even the guidelines issued by the State Government have been violated while transferring the petitioner. He also submitted that the respondent nos. 1,2 and 3 have failed to satisfy the public interest and/or administrative exigency in the matter of transfer of the petitioner from Ahmedabad to Rajpipla. In support of the matter, Mr. Vakharia has placed reliance upon the decision rendered by the Punjab & Haryana High Court in the matter of Tripta Malhotra v. State of Punjab & Ors., reported in 1991 (1) SLR 220 wherein it has been held that, `..the matter of transfer of employees is an administrative one, but keeping in view the fairness in action, convenience of the parties and efficiency of administration, it is essential that orders once passed are allowed to stand and remain in force for a considerably long period.' Mr. Vakharia has also placed reliance upon another decision delivered by the Himachal Pradesh High Court in the matter of A.K Vasudeva v. State of Himachal Pradesh & Ors., reported in 1982 (1) All India Services Law Journal p-170 wherein it is observed that the transfer orders made without any administrative reason or public interest at the instance of MLA in order to accommodate a person of his choice is not an order made in the public interest - Interest of a political person is not a public interest. Mr. Vakharia has also placed reliance upon a decision rendered by Punjab & Haryana High Court in the matter between Smt. Kulwant Kaur and Ch. Suraj Bhan & Ors., reported in 1991 (1) SLR 744 wherein it is held that transfer - no public interest disclosed in making order of transfer of petitioner - petitioner was to attend her husband who was undergoing treatment of Tuberculosis - transfer order quashed. Countering the submissions made by the learned advocate appearing on behalf of the petitioner, the learned Addl. Advocate General Mr. Shelat submitted that in fact Sec. 11 of the Bombay Labour Welfare Fund Act permits the Welfare Board to appoint the Welfare Commissioner of its choice. The petitioner was deputed by the State Government as a Welfare Commissioner. If the respondent no. 4; while working as a Chairman, had no cordial relation with the Welfare Commissioner then it will adversely affect the administration of the entire Welfare Board. Mr. Shelat further submitted that the affidavit-in-reply which has been filed by the respondent no. 4 has been approved by the Board Members of the Welfare Board, therefore, according to him, when the entire Board Members are against the petitioner because of his arrogant nature, misbehaviour and incordial relations with the entire staff, it was prudent on the part of the Chairman to make a request to the Government for withdrawal of the services of the petitioner. Mr. Shelat submitted that if the Chairman, being a public officer, is entitled to some of the benefits and amenities as a matter of right then naturally he can demand the same before the Welfare Commissioner and there is nothing wrong in making demand for the same since the said facilities are available to the Chairman under the relevant rules, practice and procedure as well as the policy of the State Government, and therefore, the demand for a peon and a driver by the respondent no. 4 cannot be considered to be extraneous. Therefore, in such circumstances, if the Welfare Commissioner is not properly working in the interest of the Board and not having cordial relation with the higher officer as well as subordinate staff then in such circumstances, the Chairman is a right person to bring such facts to the notice of the State Government in the interest of the Board, and request the Government to withdraw the services of the petitioner from the Board and this request cannot be considered to be mala fide when the same is made entirely in the administrative interest. Mr. Shelat has placed reliance upon a decision rendered by the Apex Court, reported in AIR (1995) SC 423. On the other hand, learned Government Pleader Mr. A.D Oza appearing for the respondents nos. 1,2 and 3 submitted that petitioner was not appointed by the Board under Section 11 of the Act but he was deputed to such a post, and therefore, it is within the powers of the State Government to withdraw the services of the petitioner. Mr. Oza has submitted that looking to the averments made in the affidavit-in-reply by the respondents nos. 1, 2 & 3 such officers cannot be appointed in public board wherein the labour welfare activities are being carried out by the Welfare Board. Mr. Oza has also submitted that if the petitioner is not having cordial relation and not cooperating the functions with the Chairman, then in such circumstances, the request can be made by the Chairman to the Government to withdraw the deputationist and in such circumstances, the same cannot be considered to be malafide but on the contrary, it is in the public interest as well as administrative interest which justifies the transfer of petitioner. Mr. Oza has placed reliance upon the decisions of the Apex Court in the matters of Union of India & Ors. v. S.L Abbas, [AIR (1993) SC 2444]; and others, reported in (1990) SC 1132]; of AIR (1993) SC 244; JT (1995) (2) SC 499; AIR (1979) SC 1136 and 1996 (2) GLH 892. Heard the learned advocates appearing for the respective parties at length. Ultimately, the transfer is a matter of incident of service and the Court should not normally interfere in such transfer matters unless and until the malafide or arbitrariness has been proved by the petitioner and/or if the transfer is not made in the interest of the administration and public interest. Looking to the facts as well as the averments made by the respective parties in such circumstances, according to my opinion, the petitioner has been rightly transferred. This cannot be a mala fide exercise of power nor colourable exercise of power by the respective authorities. One fact is very clear that petitioner was not appointed by the Board under Section 11 of the Act. In the instant case, the petitioner was deputed by the State Government to the Welfare Board as a Welfare Commissioner. Such deputation can be withdrawn by the State Government; if his services are not found to be useful or in the interest of the institution. Now, when the Institution concerned had disclosed its intention not to avail off the services of the present petitioner any longer, it is the duty of the State Government to consider such a request made by the highest authority ie., by the Chairman of the Board. In administration mere differences or disputes amongst the higher and subordinate officers cannot be considered to be malafide. In service career number of incidents are bound to happen and that cannot be treated as a cause of transfer. Sometimes, incidents may give cause of action of transferring an employee from one place to another but that cannot be considered to be malafide, if the same is permissible under the rules and is made in the public interest. Vast administration has to be managed by the Government and if any complaint or grievance in respect of the working of an employee had been received by the authority and it is found by the authority that the working system, nature of person and his conduct is not in the interest of the administration, and if such employee is allowed to continue on such post or office, then ultimately it will adversely affect the entire organization then in such circumstances, it is within the powers of the Government to transfer such person in the interest of overall administration of the said institution. Moreover, when upon receipt of the complaints no departmental inquiry or chargesheet is given and simply a person has been shifted from one place to another that cannot be said to be a punishment and/or mala fide action on the part of the Government. In such a situation, the best authority is the Government who can take decision that service of a particular employee can be utilized properly at which place and in such circumstances, the Court is not an appellate authority. The Court is having very limited role in the extreme cases of mala fide, personal interest of some body, prejudice or colourable exercise of power. In the present case, there was no personal interest of the respondent no. 4 for transferring the petitioner. The request made by the respondent no. 4 to the Government with respect to withdrawal of the services of petitioner is made in the sole interest of the administration of the Welfare Board, and the State Government has rightly considered it and passed an order of transfer by way of withdrawing services of petitioner; who being a deputationist on the Welfare Board. Therefore, according to my opinion, there is no mala fide or colourable exercise of power by the respondents. In this regard, there are some of the observations made by the Apex Court in such a situation, which requires consideration. They are, in the matters of E.P Royappa v. State of Tamil Nadu & Anr., reported in [AIR (1974) SC 555] wherein in paragraph nos. 88 & 92 it has been observed thus; `88. Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialized experience. It is always a difficult problem for the Government to find suitable officers for such specialized posts. There are not ordinarily many officers who answer the requirements of such specialized posts and the choice with the Government is very limited and this choice becomes all the more difficult, because some of these posts, though important and having onerous responsibilities, do not carry