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1997 Supreme(Pat) 591
PATNA HIGH COURT
S.N. JHA, J.
Dr. Lakshmi Chaudhary - Appellant
Vs.
Dr. Uma Shankar Pandey - Respondents
Appeal from Original Order No. 83 of 1994
Decided on : 18.8.1997
For the Appellant : Mr. R. K. Rajan.
For the Respondent: Mr. Shailendra Kumar Singh.
Transfer of a Government servant is an incident of service and courts cannot interfere unless it is made in violation of any mandatory statutory rule or on the ground of malafide.
Headnote:
INJUNCTION - TRANSFER OF GOVERNMENT SERVANT - ORDER 39 RULE 2A OF THE CODE OF CIVIL PROCEDURE - SCOPE OF INTERFERENCE BY COURTS - TRANSFER OF GOVERNMENT SERVANT IS AN INCIDENT OF SERVICE AND COURTS CANNOT INTERFERE UNLESS IT IS MADE IN VIOLATION OF ANY MANDATORY STATUTORY RULE OR ON THE GROUND OF MALAFIDE.
Fact of the Case:
The plaintiff, a pathologist, challenged his transfer from the Sadar Hospital, Siwan, to the Home (Police) Department. The Munsif rejected his prayer for injunction, holding that he had no prima facie case and that transfer was an incident of service. The appellate court reversed the Munsif's findings and allowed the injunction, directing the defendant to allow the plaintiff to continue as Pathologist in the Sadar Hospital.
Finding of the Court:
The court held that the appellate court's order of injunction was bad and illegal, and that the plaintiff had no legal right to continue on the particular post. It observed that transfer is an incident of service and that the plaintiff was liable to be transferred in terms of the Government circular.
Issues: 1. Whether the plaintiff had a prima facie case for injunction against his transfer. 2. Whether the appellate court was justified in granting the injunction.
Ratio Decidendi: The court relied on the following principles laid down by the Supreme Court: 1. Transfer of a Government servant is an ordinary incident of service and does not result in any alteration of any of the conditions of service to his disadvantage. 2. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. 3. Transfer orders issued by competent authority do not violate any of his legal rights. 4. Courts should not interfere with transfer orders unless they are made in violation of any mandatory statutory rule or on the ground of malafide.
Final Decision: The court set aside the appellate court's order of injunction and directed the Munsif Court to dispose of the suit by a specified date.
S.N. Jha, J. - This appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure arises from an order holding the appellant guilty of disobedience of an order of injunction in a proceeding under Order 39 Rule 2A of the Code, and directing attachment of his property. The relevant facts are as follows :
2. The sole respondent Dr. Uma Shankar Pandey filed Title Suit No. 222 of 1992 in the court of Munsif 1st, Siwan on 22.6.92 challenging the order of his transfer from the post of Pathologist, Sadar Hospital, Siwan. He applied for temporary injunction. The prayer for injunction was rejected on 23.9.92. He preferred appeal (M.A. 50 of 1992). Sri R. A. Singh, VIth Addl. District Judge, Siwan vide his Judgment and order dated 1.3.93 held that the plaintiff had got prima facie case for injunction, balance of convenience also lay in his favour and he will suffer irreparable injury if injunction was not issued. He accordingly set aside the order of the Munsif dated 23.9.92 and directed the defendant to allow the plaintiff to join his duty as Pathologist in the Sadar Hospital, Siwan and not to interfere with his functioning as Pathologist in the Sadar Hospital till disposal of the suit.
3. The respondent filed application alleging disobedience of the above-said order by the appellant. According to him, he had joined the post of Pathologist in Sadar Hospital, Siwan pursuant to the aforesaid order of the court on 3.3.93 and started performing his duties. However, the appellant was creating hinderance in his functioning. It was stated that his name was left out in the attendance register at the instance of the appellant. He was also not getting his salary. It may be mentioned here that the appellant at the relevant time was posted as Civil Surgeon, Siwan. He was also the Superintendent of the Sadar Hospital, Siwan.
4. The aforesaid application of the respondent was registared as Misc. Case No. 7 of 1993 under Order 39, Rule 2A of the Code. The appellant filed his rejoinder. The parties adduced evidence. By the impugned order, as indicated at the outset, the court below held that the appellant was guilty of disobedience. The respondent was directed to furnish list of his property so that attachment order could be issued. It is said that formal order was later issued attaching the appellant's salary. In these circumstances the present appeal was filed.
5. This appeal would have been, in the ordinary course, disposed of as having become infructuous. Order 39 Rule 2A (2) of the Code provides that no attachment made under that Rule shall remain in force for more than one year. No doubt it further provides that if the disobedience or breach of the order of injunction continues, the property attached may be sold and out of sale proceeds, the court may award such compensation as it thinks fit to injured party. But in the present case it appears that the respondent is getting his salary from the month of January, 1994. The only substantial breach of the injunction order complained of against the appellant having thus been remedied, it is obvious that the order of attachment (of salary) lost its effect on expiry of period of one year, i.e. on 1.3.94 itself. There is however something more than meets the eye in this case. In my opinion, both the orders of the court below (Sri R. A. Singh, VIth Addl. District Judge, Siwan) were not only bad and illegal but also tainted and call for enquiry on the administrative side. I, therefore, propose to record a short order as hereunder.
6. As indicated above, the suit was filed challenging the order of transfer, seeking a permanent injunction against the defendant from giving effect to the notification of his transfer. The relevant facts in this regard are as follows.
The plaintiff-respondent who is a member of Bihar Health Service was posted as Pathologist in Sadar Hospital, Siwan vide notification of the State Government dated 19.12.86. By notification dated 30.6.90 he was transferred to Home (Police) De
