SCA/1012619/1998 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10126 of 1998 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PRAVINKUMAR BALWANTPURI GOSWAMI - Petitioner(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1, MS REETA CHANDARANA, AGP for Respondent(s) : 1 - 3. NOTICE SERVED BY DS for Respondent(s) : 4 - 6. MR RM CHHAYA for Respondent(s) : 7, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/08/2008 ORAL JUDGMENT 1. This petition has been filed by the petitioner, who is aggrieved by the order of transfer dated SCA/1012619/1998 2/13 JUDGMENT 9.11.1998 whereby he has been transferred from Government Boys High School, Veraval, District: Junagadh to Government Higher Secondary School, Amarnagar, Taluka: Jetpur, District: Rajkot. 2. The brief facts of the case, emerging from a perusal of the averments made in the petition, are that the petitioner was appointed as an Assistant Teacher at Government Boys High School, Veraval on 5.11.1979. Thereafter, in February, 1996, he was transferred to Bhavnagar District. According to the petitioner, this transfer was effected on the basis of certain false allegations made against the petitioner motivated by political considerations. However, the petitioner was once again transferred back to Government Boys High School, Veraval, in 1997 and he took over the charge of the post of Principal of the said school. It is the case of the petitioner that during the examinations which were conducted in March 1998, including the examination for the subject of Physical Training, the petitioner noticed certain discrepancies regarding marks given to some students, one of whom was related to one of the Physical Training teachers of the school (Respondent No.7). According to the SCA/1012619/1998 3/13 JUDGMENT petitioner, on his having brought the alleged irregularity to the notice of the concerned authorities, the impugned order of transfer was passed, transferring him out of Government Boys High School, Veraval, to Government Higher Secondary School, Amarnagar. According to the petitioner, respondent No.7, who is Physical Instructor at Government Boys High School, Veraval, is the father of one of the students who secured high marks and against whom the petitioner had made a complaint. It is averred that since respondent No.7 is a politically influential person, he managed to have the transfer of the petitioner effected through respondent No.4, who was a sitting Member of the Legislative Assembly at the relevant point of time. It is further averred in the petition that a representation was made against the impugned transfer to the Commissioner of Higher Education, a copy of which communication is annexed as Annexure-C to the petition. It is stated that even the Principal of the school wrote a letter to the District Education Officer on 16.11.1998 requesting that the petitioner may not be transferred out of the school as he was performing SCA/1012619/1998 4/13 JUDGMENT his duties sincerely and efficiently, but the said communications were not heeded and the transfer of the petitioner came to be effected. 3. Notice was issued in the petition on 27.11.1998. Thereafter, on 5.2.1999, Rule was issued and the impugned order dated 9.11.1998 (Annexure-C to the petition) was stayed, pending the writ petition. 4. Pursuant to issuance of notice, the respondents Nos.4, 5 and 6 have not put in appearance, even though served. The respondents Nos.1, 2 and 3 are represented by Ms.Reeta Chandarana, learned Assistant Government Pleader. Mr.R.M.Chhaya, learned counsel, represents respondent No.7. 5. Mr.G.M.Joshi, learned counsel for the petitioner, has submitted that the transfer of the petitioner has been effected due to political considerations as he has made a complaint regarding certain discrepancies committed by some teachers in the school, including respondent No.7, and the impugned order is nothing but a backlash, due to the political connections of the respondents Nos.6 and 7 and, therefore, the impugned order deserves to be set aside, and the petition allowed. SCA/1012619/1998 5/13 JUDGMENT 6. Ms.Reeta Chandarana, learned Assistant Government Pleader, has strongly denied the allegations of political motivation and has submitted that the transfer of the petitioner has been effected looking to the public interest and administrative convenience and the petitioner was transferred from Government Boys School, Veraval, to a vacant post at Government Higher Secondary School, Amarnagar, as his services were required at that school. It is submitted by the learned Assistant Government Pleader that it is not borne out from the record and is also factually incorrect that there is any political colour to the transfer of the petitioner. On the contrary, there were several complaints regarding the behaviour and activities of the petitioner but even so, his transfer has been effected purely due to administrative exigencies since his services were required at Government Higher Secondary School, Amarnagar, where there was a vacant post. 7. Mr.R.M.Chhaya, learned counsel for the respondent No.7, has strongly denied the allegations made by the petitioner against respondent No.7 and has submitted that respondent No.7 is working as a Physical Instructor at the Government Boys High SCA/1012619/1998 6/13 JUDGMENT School, Veraval, and has no connections with respondent No.4 and it is wrong to say that he has a hand in getting the petitioner transferred. The allegations, as made by the petitioner in the body of the petition against respondent No.7, are strongly denied by the learned counsel for respondent No.7. It is, therefore, submitted that the petition be dismissed. 8. I have heard Mr.G.M.Joshi, learned counsel for the petitioner, Ms.Reeta Chandarana, learned Assistant Government Pleader for the respondents Nos.1, 2 and 3, and Mr.R.M.Chhaya, learned counsel for the respondent No.7 and have perused the averments made in the petition as well as those made in the reply and rejoinder. 9. The main plank of the arguments advanced by the learned counsel for the petitioner is that the impugned order of transfer has been issued due to political pressure from the respondent No.4, who was then a Member of the Legislative Assembly. In support of this submission, the learned counsel for the petitioner has drawn the attention of this Court to letter dated 18.9.1998, annexed as Annexure-D to the petition. This document is a SCA/1012619/1998 7/13 JUDGMENT copy of the letter purportedly written by respondent No.4 to the District Education Officer. The document produced at Annexure-D to the petition is a typed copy and does not contain any signature. A perusal of the contents of the letter go to show that the District Education Officer is being apprised that there are certain controversial reports being circulated regarding the functioning of the Government Boys High School, Veraval and it would be in the interest of the students, if one Shri A.D.Dobariya is given the charge of the Principal of that school. According to the learned counsel for the petitioner, this proves the case of the petitioner that the impugned order has been passed due to the political pressure exerted by respondent No.4. The petition contains various averments which, according to the petitioner, go to show that the transfer of the petitioner has not been effected due to administrative exigencies but has been effected at the behest of respondent No.7 by using the good offices of respondent No.4. However, apart from bald assertions and general statements, there is nothing on record to prove that the impugned transfer has been effected due to any SCA/1012619/1998 8/13 JUDGMENT political pressure being exerted by respondent No.7 or at the behest of respondent No.4. The document at Annexure-D only shows that having heard some controversial reports regarding the Government Boys High School, Veraval, a suggestion is being made, purportedly by respondent No.4 to the District Education Officer that one Shri A.D.Dobariya be given the charge of the Principal of that school. This can, by no stretch of imagination, be construed as mala fide intention or political interference to effect the transfer of the petitioner. 10.The affidavit-in-reply filed by the respondent No.1 clearly goes to show that the transfer of the petitioner has been effected in the public interest and for administrative convenience as there was no vacant post in District Junagadh, relating to the subjects which the petitioner is teaching, i.e. Accounts and Auditing. It is clarified in the said affidavit-in-reply that there was a necessity of a teacher for the above subjects and a vacant post was also available at the Government Higher Secondary School, Amarnagar and, therefore, keeping these administrative exigencies in mind, the transfer order of the SCA/1012619/1998 9/13 JUDGMENT petitioner was issued. 11.The petitioner has sought to challenge the order of transfer by attempting to make out a case of political victimization. However, there is nothing on record to show that the petitioner was victimized at the behest of respondents Nos.7 and 4. It is a settled position of law that allegations of mala fide and political victimization, being sensitive in nature, have to be meticulously founded on relevant material and equally meticulously proved. Merely by making general and bald allegations, unsupported by any material on record, such allegations cannot merit consideration. In M/s.Bharat Iron Works v. Bhagubhai Balubhai Patel and others - AIR 1976 SC, the Supreme Court has said thus: “10. The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimization is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the tribunal and a conclusion SCA/1012619/1998 10/13 JUDGMENT should be reached on a totality of the evidence produced.“ Although this was a case where the employee had alleged victimization against the employer, the observations made by the Supreme Court therein are pertinent to the case in hand, as well. 11.It is now a settled position of law that transfer is an incidence of service and no right accrues to an employee to stay at a particular place, for ever. The petitioner has already enjoyed the interim relief ever since 1999, and much water has flown under the bridge since then, by efflux of time. 12.In Union of India and others v. S.L.Abbas – AIR 1993 SC 2444, the Supreme Court has held that “ who should be transferred where, is a matter for the appropriate authority to decide. 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...” (emphasis supplied) 13.In the present case, although the petitioner has tried to give a political colour to the petition, SCA/1012619/1998 11/13 JUDGMENT no mala fides or political interference detrimental to him is proved from the material on record. In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and anr. - (2001)8 SCC 574, the Supreme Court held that: “5. On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no government servant or employee of public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of SCA/1012619/1998 12/13 JUDGMENT administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4. 1.1 of the Seniority Rules interdicts any transfer of the employees from one office or project or unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the Project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance.” 14.Since the material on record reveals that the transfer of the petitioner has been effected in the public interest and for administrative reasons and the same is not shown to be contrary to any statutory provision or rule, in my view, the petition deserves dismissal as being devoid of any merit. A Government servant, who holds a transferable post, has no vested right to remain SCA/1012619/1998 13/13 JUDGMENT posted at a particular place and is liable to be transferred from one place to another, in the public interest and as per administrative exigencies prevalent at the relevant point of time. 15.For the aforestated reasons, no case is made out for interference with the order of transfer, impugned in the petition. The petition is dismissed. Rule is discharged. The interim order stands vacated. There shall be no orders as to costs. (Smt.Abhilasha Kumari, J.) (sunil)