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PATNA HIGH COURT
Asok Kumar Ganguly, J.
Ravindra Ram
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 8545 of 1995 ;
Decided On : NOVEMBER 21, 1995
TRANSFER OF GOVERNMENT SERVANT - MALA FIDE ALLEGATIONS - EXECUTIVE RULES OF BUSINESS - VIOLATION - INTERFERENCE BY COURT - ADMINISTRATIVE REASONS - FREQUENCY OF TRANSFERS - REPRESENTATION FOR TRANSFER - DISPOSAL BY AUTHORITIES.
Fact of the Case:
The petitioner, a Regional Deputy Director of Education, Muzaffarpur, challenged an order of transfer issued by the Secretary, Department of Secondary, Primary and Adult education, Government of Bihar, transferring him to the post of Deputy Director of Education, Headquarters, Patna. The petitioner alleged that the transfer was mala fide and politically motivated, as he had refused to oblige certain M.L.As and Ministers in their requests for transfer of teachers. The petitioner also contended that the transfer order was passed in violation of the Executive Rules of Business.
Finding of the Court:
The court held that the allegations of mala fide were not proved, as the petitioner had not made the persons against whom the allegations were made parties to the writ petition. The court also held that the Executive Rules of Business were not mandatory and that there was no serious violation of those rules in the present case. The court further held that the transfer order was issued by the competent authority and that the post to which the petitioner was transferred was transferable from one place to another.
Issues: 1. Whether the allegations of mala fide against the transfer order were proved? 2. Whether the Executive Rules of Business were mandatory and whether there was any violation of those rules in the present case? 3. Whether the transfer order was issued by the competent authority and whether the post to which the petitioner was transferred was transferable from one place to another?
Ratio Decidendi: 1. The court held that the allegations of mala fide were not proved, as the petitioner had not made the persons against whom the allegations were made parties to the writ petition. The court relied on various Supreme Court decisions which held that in order to prove mala fide, the allegations must be clearly and squarely made with sufficient particulars, supported by a proper affidavit, and the persons against whom the allegations are made must be made parties so that they get a chance to refute the same. 2. The court held that the Executive Rules of Business were not mandatory and that there was no serious violation of those rules in the present case. The court relied on Article 166 of the Constitution of India, which empowers the Governor to make rules for the more convenient transaction of the business of the Government of the State and for the allocation among the Ministers of the said business. The court held that the rules framed in exercise of such Constitutional provision cannot be held to be mandatory. 3. The court held that the transfer order was issued by the competent authority and that the post to which the petitioner was transferred was transferable from one place to another. The court held that in absence of a clear case of mala fide and violation of statutory provision, the High Court has no jurisdiction to interfere with an order of transfer.
Final Decision: The court dismissed the writ petition, holding that there was no mala fide or violation of statutory provisions in the transfer order. However, the court directed the appropriate authorities to dispose of the petitioner's representation for transfer within two weeks from the date of receipt of a copy of the judgment.
A. K. Ganguly, J.
1. At the stage of admission itself this matter, upon exchange of affidavits, was heard in full and is, therefore, disposed of finally by the judgment given below:
2. The subject-matter of challenge in this writ petition is an order of transfer dated 5th October, 1995 passed by the Secretary, Department of Secondary, Primary and Adult education, Government of Bihar, patna (respondent No.2), as contained in Annexure-1, whereby the petitioner, a Regional Deputy Director of Education, Muzaffarpur was sought to be transferred as the deputy Director of Education, Headquarters, Patna.
3. In the writ petition it has been asserted that after completion of his full terms as Deputy Director of Primary Education, the petitioner was transferred as the Regional deputy Director of Education, muzaffarpur by an order contained in memo No.147 dated 30th June, 1995. Such order of transfer was passed in respect of the petitioner on the recommendation of the Establishment Committee and by way of routine measure and it appears that along with the petitioner several other persons were also transferred.
4. Further case of the petitioner, as made out in the writ petition, is that one Bhola Ram from whom the petitioner took charge, pursuant to the order of transfer dated 30th june, 1995, challenged the petitioners order of transfer before this Court vide C. W. J. C. No.4925 of 1995 and ultimately the writ petition filed by the said Bhola Ram was dismissed by this Court and since then the said Bhola Ram started exerting political pressure to oust the petitioner from Muzaffarpur from the post of Regional Deputy Director of education. However, the said Bhola ram has not been made a party to this writ petition. It is also the case of the petitioner that a conspiracy was hatched up in collusion with the diferent M. L. As. to get the petitioner transferred from Muzaffarpur. Those m. L. As. are interested to get the petitioner transferred from Muzaffarpur as he did not act according to the request made by them in respect of transfer of different teachers of secondary Schools. As the petitioner refused to oblige the local M. L. As. and the Ministers, those political figures conspired to secure the transfer of the petitioner from Muzaffarpur. According to the petitioner, thus pressure was exerted upon the education Minister and the Chief minister to get the petitioner transferred. One M. L. A. , namely, Munshi lal Rai wrote a letter to the Minister Incharge on 17.9.1995 and made a request for the transfer of the petitioner by using some objectionable allegations against him and the petitioner alleged that in the background of these facts on 4th October, 1995 the Chief Minister passed an order of transfer of the petitioner and on the said order of the Chief minister the Education Minister is sued a direction on 5th October, 1995 to respondent No.2 to transfer the petitioner without any delay and, thereafter the order of transfer was passed.
5. In the back drop of these facts, the assertion of the petitioner is that there is no administrative reason which calls for the transfer of the petitioner and he has been transferred after completion of just three months of service at Muzaffarpur on political considerations.
6. In order to substantiate the aforesaid case of the petitioner, the petitioner has disclosed in the writ petition several recommendations under Annexure-5 series made by the different M. L. As. and Ministers.
7. In order to bring home the allegations of mala fide against those m. L. As. and Ministers, the petitioner was required to make them parties but in this writ petition those persons for some inexplicable reasons, have not been made parties.
8. It is far too well settled to admit of any debate that he who alleged mala fide is saddled with the heavy burden of proving the same. In order to discharge such an onerous burden three conditions must be fulfilled, namely, (i) the allegations must be clearly and squarely made wit
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