S.B. CIVIL WRIT PETITION NO.3266/2007 (Dev Kishan Bhati Vs. State of Rajasthan & Ors.) Date of Order :: 23rd July 2007. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Kuldeep Mathur, for the petitioner. Mr. R. Dave & Mr. B.L. Tiwari, Dy. Government Advocates. Mr. M.S. Singhvi, for the respondent No.4. …. The petitioner, a Junior Accountant posted with Panchayat Samiti, Jaisalmer was served with an order dated 02.03.2007 (Annex.6) posting him at Industrial Training Institute, Pokran, District Jaisalmer. The petitioner challenged the order dated 02.03.2007 before this Court in S.B. Civil Writ Petition No.1236/2007 that was dismissed on 19.03.2007 for availability of alternative remedy of appeal before the Rajasthan Civil Services Appellate Tribunal (‘the Tribunal’); however, this Court permitted the petitioner to file such an appeal within 30 days and stayed effect and operation of the order dated 02.03.2007 for the period of 30 days or till any other order was passed by the Tribunal, whichever be the earlier. The appeal thus filed by the petitioner on 16.04.2007 (Appeal No.111/2007) challenging the said order dated 02.03.2007 essentially on the ground that it was the outcome of mala fides of the Pradhan of Panchayat Samiti, has been 1 rejected by the Tribunal at admission stage by its impugned order dated 25.04.2007 (Annex.13). By the order dated 25.04.2007 the Tribunal observed that the petitioner was continuously working at Jaisalmer since the year 1996 and by the impugned order he had been transferred within Jaisalmer District only; and that from the documents submitted by the petitioner it was not made out if the transfer was the outcome of any mala fide. The Tribunal further observed that the transfer policy was only directory in nature and an employee has no legal right to have it enforced; and that transfer was a natural incident of service and the government employee has no legal right to seek posting at a particular place. Aggrieved, the petitioner has preferred this writ petition. The petitioner has averred that he entered into the services of the Accounts Department of the Government of Rajasthan w.e.f. 30.04.1996 on being appointed as Junior Accountant; that by an order dated 08.07.2004 his services were transferred to Panchayat Samiti, Jaisalmer where he joined on 16.07.2004; and that he had discharged his duties with efficiency, dedication and sincerity for last three years. The petitioner has alleged that the respondent No.4 was elected as Pradhan of Panchayat Samiti, Jaisalmer and she used to pressurise the officials to get her work done by any 2 means; that the Vikas Adhikari and the petitioner never supported her in illegal works and never allowed her to proceed against the rules and thus, the respondent No.4 was inimical to the petitioner. According to the petitioner, looking to his outstanding performance, the administrative authorities decided to honour him on the Republic Day to which the respondent No.4 reacted with annoyance and concocted a story of departmental inquiry being pending against the petitioner; however, the story narrated by the respondent No.4 was found to be incorrect and for outstanding performance and unblemished services, the petitioner was honoured and appreciated by the Divisional Commissioner on 26.01.2007. The petitioner has annexed with the petition his appreciation letter as Annexure 2, newspaper reports in that regard as Annexure 3 and congratulatory message advertised in a newspaper dated 08.02.2007 as Annexure 4. The petitioner has also annexed with the writ petition another report appearing in a newspaper dated 29.01.2007 as Annexure 5, reporting opposition of respondent No.4 to such award of appreciation. According to the petitioner, ever since then the respondent No.4 was carrying moreover animosity and malice towards him and threatened with dire consequences. After the aforesaid averments concerning himself, his appreciation by the Divisional Commissioner on Republic Day, 3 newspaper reports, and animosity of the Pradhan, the petitioner has averred that he was surprised to know that the respondent No.2, the Director, Treasury and Accounts, Government of Rajasthan has passed an order on 02.03.2007 (Annex. 6) transferring him from Panchayat Samiti, Jaisalmer to I.T.I., Pokran. According to the petitioner, the said order dated 02.03.2007 was managed by the respondent No.4, was actuated with malice, and was not made for any administrative exigency. The petitioner has pointed out that he preferred writ petition before this Court wherein he was granted liberty to file appeal before the Tribunal and operation of the order dated 02.03.2007 was stayed for 30 days. According to the petitioner, the appeal preferred by him has not been decided in an objective manner by the Tribunal and despite there being no material available on record to establish administrative exigency and without assigning any proper reasons, the Tribunal has proceeded to dismiss the appeal by the impugned order dated 25.04.2007 (Annex.13). The petitioner has contended that the order passed by the Tribunal is not based on material on record and is without foundation; that the findings of the Tribunal are perverse and erroneous; that the Tribunal has failed to appreciate that the order of transfer is bad in law as the same was passed at political instance; that the Tribunal has failed to appreciate the 4 background of the case which clearly shows that the respondent No.4 was inimical towards the petitioner and made endeavors to get him transferred. The petitioner has further contended that the order dated 02.03.2007 is illegal and arbitrary and is nothing but colourable exercise of powers; and that the respondent authorities have exercised their powers with mala fide intentions. While reiterating the submissions that the order has not been passed to subserve any administrative exigency, the petitioner has pointed out that no other person has been posted vice him though services of a Junior Accountant are very much required at the Panchayat Samiti. The petitioner has also pointed out that he was posted at the said Panchayat Samiti only in the year 2004 whereas another Junior Accountant Ram Swaroop Sharma was working thereat since the year 2002; and has alleged that the respondent authorities while ignoring the length of posting have transferred the petitioner in violation of transfer policies. It has also been contended that the transfer order shall cause serious personal problems to the petitioner inasmuch as his wife is a teacher posted at Government Primary School, Beldaron-ki-Dhani; he has to take care of his 90 year old father who has lost his eye sight; and he has the obligation to maintain his three children studying at Jaisalmer. 5 The petitioner has averred in the writ petition that the respondent No.4 was inimical towards him and so also towards the Vikas Adhikari and that the news items published are clear proof of prejudice of respondent No.4. The petitioner has also referred to the order dated 19.03.2007 (Annex.8) passed in relation to the Vikas Adhikari Idan Singh transferring him to Panchayat Samiti, Raniwara. The petitioner has further averred that the Sarpahchas of Gram Panchayats were having “good feelings” towards him; that his transfer on political malice was not tolerated by them and in the general meeting dated 24.03.2007 held in the office of Panchayat Samiti, Jaisalmer all the Sarpanchas recommended to make a request to the State Government to cancel the transfer order of the petitioner; and such proposal was opposed only by the respondent No.4. According to the petitioner, it is clear that the petitioner’s transfer has been issued at the instance of the respondent No.4 who was inimical towards him for not supporting her illegal activities; and with a view to adjust her blue eyed person at Panchayat Samiti, Jailsamer. In this regard, the petitioner has placed on record a communication dated 18.11.2006 addressed by the Pradhan to the Minister of State for Finance as Annexure 10. The petitioner has also suggested in the writ petition that the order of transfer was issued when there was a complete ban on transfers; however, 6 such ground with reference to ban has not been pressed as such during the course of submissions. The respondent No.4 has filed a reply to the writ petition taking preliminary objections that the petitioner has not approached this Court with clean hands and has persuaded this Court to grant interim order while concealing material facts. According to the answering respondent, the petitioner was relieved from Panchayat Samiti, Jaisalmer pursuant to the impugned order on 30.04.2007; that despite being relieved he did not hand over charge and thus a committee was constituted for resuming charge of the record on 25.03.2007; that while resuming the charge by the committee, scroll register and bill register of the year 2006-07 were not found and the petitioner was informed to hand over complete record by the letter dated 23.05.2007. The respondent No.4 has also taken the objection that the petitioner is a member of Accounts Subordinate Service and was on deputation with the Panchayat Samiti in terms of Section 79 of the Rajasthan Panchayati Raj Act, 1994; that a person on deputation cannot claim continuance in the transferee department and it is the sole discretion of the competent authority to withdraw his deputation at any time. Thus, according to the answering respondent, the transfer of the petitioner being a case of withdrawal of deputation, the grievance raised by him is 7 thoroughly misconceived. The respondent has denied the assertion of the petitioner about sincere discharge of his duties and has alleged that he committed various irregularities during his tenure as Junior Accountant with Panchayat Samiti, Jaisalmer. It has been averred that the petitioner was posted in Panchayat Samiti, Jaisalmer in the year 1996, then he was transferred to Education Department at Jaisalmer only; and in the month of July 2004, he was transferred back to Panchayat Samiti, Jaisalmer. The respondent has alleged that the then Vikas Adhikari was instructed to conduct inquiry against the petitioner but, instead, he was protecting the petitioner; and after their transfer, an inquiry was conducted and a report made by the present Vikas Adhikari on 23.06.2007 has questioned the procedure adopted by the petitioner in drawing multiple cheques on the same day for smaller amounts in favour of the same institution for same kind of work, in order to avoid signatures of the Pradhan; and a detailed inquiry from the Accounts Officer has been suggested. The answering respondent has denied the allegations leveled against her and has submitted that the petitioner’s claim of having been honoured on the Republic Day has nothing to do with the present transfer order. However, the answering respondent has put a question mark for the funds of Gram Panchayats 8 having been utilised for issuing press advertisements for congratulating the employees of the State Government. The answering respondent has denied the allegations of her being inimical towards the petitioner but has maintained that as a head of the statutory body, she was bound to point out the illegalities committed by the employees to the higher authorities. The answering respondent has questioned the record of proceedings of the Panchayat Samiti whereby allegedly a Sarpanch put the motion regarding cancellation of transfer of the petitioner and has alleged that there was no general support on the motion and she had pointed out the fact that the matter was sub judice. The answering respondent has alleged that the Vikas Adhikari in a wholly unauthorised manner signed the proceedings of Pancayat Samiti though she alone could have signed the proceedings having presided over the meeting. The answering respondent has submitted in relation to the recommendation Annexure 10 that as an elected representative she was not prevented from making such recommendations of posting Dhanna Ram Suthar as Junior Account in the office of the Pancyayat Samiti, Jaisalmer. The answering respondent has supported the order passed by the Tribunal being based on proper appreciation of the fact situation and has contended that there being no violation of any legal rights, the petitioner is not 9 entitled for any relief. Learned counsel Mr. Kuldeep Mathur arguing for the petitioner while emphasizing that the order in question was actuated by malice, has strenuously contended that from the facts undeniably available on record, it is established that the transfer in question has been brought about only at the instance of Pradhan; only because the petitioner refused to tow in her line; was nothing but an outcome of her animosity; and was intended to teach the petitioner a lesson. Learned counsel submitted that such transfer, having not been made for any administrative exigency, cannot be sustained. Learned counsel further emphasized that the transfer has been made in order to accommodate another person and deserves to be quashed for this reason too. Learned counsel further contended that displacement of the petitioner although his wife is serving at the same place is contrary to the government policy. Learned counsel has referred to and relied upon the decisions in Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam & Ors. : (2003) 11 SCC 740; Kunj Bihari Sharma Vs. State & Ors. : WLR 1994 Raj 456; Om Prakash Sharma Vs. State of Rajasthan & Ors.: RLR 1989 (1) 826; Dr. P.Damodaran Vs. State of Kerala & Ors.: 1982 (1) SLR 563; and Smt. Arti Surana Vs. State of Rajasthan & Ors.: 2002 WLC (UC) 766. Learned counsel Mr. M.S. Singhvi appearing for the 10 respondent No.4 has laid stress upon the submissions that the writ petition was fundamentally baseless for the impugned order being essentially of withdrawal of deputation by the parent department of the petitioner; and with reference to the decision of the Hon’ble Supreme Court in the case of Kunal Nanda Vs. Union of India & Anr. : (2000) 5 SCC 362, learned counsel contended that a deputationist has no right to continue on deputation in the transferee department. Refuting the allegations of mala fide against respondent No.4, learned counsel has contended with reference to the decisions of the Hon’ble Supreme Court in the case of E.P.Royappa Vs. State of Tamil Nadu : AIR 1974 SC 555 and N. Sankaranarayanan Vs. State of Karataka & Ors. : (1993) 1 SCC 54 that mala fides cannot be inferred on bald allegations of the petitioner; that the petitioner has merely come out with allegations against the answering respondent without any material of any credibility that could be conclusive of any mala fide on her part; and that there is no allegation of any mala fide against the authority that has passed the order impugned. Learned counsel further contended with reference to the decisions of the Hon’ble Supreme Court in the case of Union of India & Ors. Vs. S.L. Abbas : AIR 1993 SC 2444 and Shilpi Bose Vs. State of Bihar: AIR 1991 SC 532 that the guidelines issued by the Government do not confer any legally enforceable right on the 11 employee nor the order of transfer could be interfered on that count; and that in a given case a competent authority could issue transfer order even with a view to accommodate a public servant to avoid hardship. Learned counsel also pointed out that the case of Om Prakash Sahrma relied upon by the petitioner has already been overruled by a Division Bench of this court in the case of Bhagirathmal Vs. State of Rajasthan & Ors. 1990 (2) RLR 561; and contended that even desired transfers could not be considered as suffering from malice. Learned counsel further contended that transfer of an employee is a natural incident of service and unless shown to be mala fide or violative of any statutory provision, is not subject to judicial review as a matter of routine. Learned counsel referred to the decision of the Hon’ble Supreme Court in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan & Anr. : (2001) 8 SCC 574 and that of this Court in Murlidhar Sharma Vs. State of Rajasthan & Anr. : 2005 (2) WLC 413. Though no separate reply has been filed on behalf of the respondents Nos. 1 to 3, learned Deputy Government Advocates have adopted the submissions made on behalf of the respondent No.4. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is clearly of opinion that this writ petition 12 remains bereft of substance and deserves to be dismissed. The submissions made on behalf of the petitioner about violation of guidelines with reference to employment of his wife and that the transfer has been ordered in order to accommodate some other incumbent deserve to be rejected at the outset. The petitioner has not precisely pointed out the terms of such guidelines and mere vague averments taken in that regard cannot be countenanced. Then, as pointed out by the Hon’ble Supreme Court in the case of S.L. Abbas (supra), the guidelines do not confer upon the government employee any legally enforceable right; and as to who should be transferred where is a matter for the appropriate authority to decide. Even an order for the purpose for accommodating another to avoid hardship cannot be pronounced as illegal or bad on that count alone. In the case of Shilpi Bose (supra), the Hon’ble Supreme Court said,- “If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer order were passed on the request of the employees concerned.” The central and pivotal submission of the petitioner in the present case has been that his transfer has been brought about only at the instance of the Pradhan of Panchayat Samiti who was carrying animosity towards him. With repeated 13 averments that the Pradhan, respondent No. 4, was inimical towards him, the petitioner has contended that the transfer suffers from mala fide and deserves to be annulled. This court finds the allegations and assertions of the petitioner wholly misplaced, apart from being hollow and baseless,. The petitioner is admittedly a member of Accounts Subordinate Services in the State of Rajasthan. Posting of the petitioner as Junior Accountant for Panchayat Samiti, Jaisalmer is that of deputation to the Panchayat Samiti and he is liable to be transferred to by the State Government (vide Section 79 of the Rajasthan Panchayati Raj Act, 1994). By the order impugned the Director, Treasury and Accounts, Rajasthan has transferred the petitioner and posted him at Industrial Training Institute, Pokran, District Jaisalmer. This Court finds substance in the contention of the learned counsel for the respondent No.4 that the present one is a case essentially of withdrawal of deputation; and the grievance as raised by the petitioner against the transfer/posting order issued by his parent department while making allegations against the respondent No.4 is thoroughly misconceived. As shall be seen hereafter, even the allegations of mala fide against the respondent No.4 are hollow and unfounded, but significant it is to notice in the first place that there are no specific allegations against the authority passing the order 14 impugned, except a cursory averment in paragraph 23(d) of the writ petition that the order has been passed in colourable exercise of powers and with mala fide intentions. Nothing cogent and concrete is available on record to examine if the authorities passing the order posting their Junior Accountant from one institution to another within the same District have proceeded with or upon any mala fide. The petitioner was essentially on deputation with Panchayat Samiti and cannot claim as a matter of right that he has to be continued on such deputation. The Hon’ble Supreme Court in the case of Kunal Nanda (supra) has observed,- “The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.” The fundamental fact that he was on deputation with the Panchayat Samiti and it is his parent department that has chosen to post him to another institution knocks the bottom out of the case of the petitioner. Remote suggestion as made in the writ petition imputing colourable exercise of powers or mala fide on his department by the petitioner is difficult to appreciate. No connecting fact or factor has been placed on 15 record to believe that the authorities concerned have withdrawn him from deputation at Panchayat Samiti for any extraneous reason or consideration. Examining the case from other angle, and assuming that the impugned order has been passed at the instance of the respondent No.4, this Court is yet of opinion that the order of transfer is not rendered illegal or invalid on this count either. The respondent No.4 is the elected Pradhan of the Panchayat Samiti and cannot be discarded as a busy-body. She has direct concern in the administration of the Panchayat Samiti and even when it is accepted that she did make a request for transferring the petitioner, it cannot be said that she could not have done so at all. It is a different matter as to what decision is taken by the Government on such a request or desire, but the order of transfer of Junior Accountant by his parent department cannot be branded as illegal or bad only if made at the request of the head of the institution concerned where he had been placed on deputation. The observations made by the Hon'ble Supreme Court in the case of Sarvesh Kumar Awasthi (supra) cannot be applied ipso facto to the facts of the present case. The Hon'ble Supreme Court has observed thus: ''3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer 16 cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.'' In the present case, merely because the order Annexure 6 has been alleged to have been issued at the instance of the Pradhan, it cannot be said that the power of ordering transfer has been exercised arbitrarily or mala fide or at the instance of politicians whose work was not done by the petitioner. As observed hereinbefore, even if it be assumed that the Pradhan has recommended such transfer, it cannot be said that transfer has been ordered at the instance of someone who has nothing to do with the business of administration. It may also be observed that the decision in Om Prakash Sharma's case (supra) holding that a 'desired transfer' is arbitrary and suffers from malice in law has not been approved by the Division Bench of this Court in the case of Bhagirath Mal Vs. State of Rajasthan 1990 (2) RLR 561 wherein the Hon'ble Division Bench observed,- ''18. We are in agreement with the view taken by the learned Single Judge that only the Minister can know better and all the powers cannot be delegated to bureaucracy depriving the Minister to act. We do not agree with the view taken in the case of Om 17 Prakash Vs. State of Rajasthan (supra), that the desired transfer could be considered as a malice in law.'' In the case of M. Sankaranarayanan (supra), the Hon’ble Supreme Court has noticed that the Chief Secretary and the Chief Minister of State had differences of opinion on a number of sensitive matters and the Hon’ble Supreme Court held that if on that score the Chief Minister and the Cabinet had taken a decision to relieve the appellant from the post of Chief Secretary and to post another officer of their confidence, it cannot be said that the decision is per se illegal or