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2019 Supreme(Raj) 2771
IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Prem Singh Choudhary - Appellant
Versus
Jodhpur Vidyut Vitaran Nigam Limited - Respondent
Civil Writ Petition No. 3933 of 2019
Decided On : 08-05-2019
Vineet Dave, Adv., Ravi Bhansali, Adv., Shubham Modi, Adv., Kuldeep Mathur, Adv.
Transfer of a public servant is an incident of service and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
Headnote:
TRANSFER - MALAFIDE - ADMINISTRATIVE EXIGENCY - TRANSFER POLICY - INTERFERENCE BY COURT - SUPERINTENDING ENGINEER - JDVVNL - JODHPUR - ELECTION MODEL CODE OF CONDUCT - TRANSFER OF 11 OFFICERS - EXECUTIVE ENGINEER - REGULAR SUPERINTENDING ENGINEER - SENIOR AND EXPERIENCED SUPERINTENDING ENGINEER - LARGE TOWN - PUBLIC INTEREST - PUBLIC ADMINISTRATION - CONDITIONS OF SERVICE - VESTED RIGHT - PUBLIC SERVANT - GOVERNMENT INSTRUCTIONS - GUIDELINES - STATUTORY FORCE - COURT INTERFERENCE - MALA FIDE - VIOLATION OF STATUTORY PROVISIONS - ADMINISTRATIVE EXIGENCY - JUDICIAL REVIEW - SCOPE - REASONABLE ORDER - TRANSFER POLICY - EXECUTIVE INSTRUCTIONS - DEVIATION - BRIEF REASON - PUBLIC INTEREST - ADMINISTRATIVE EXIGENCY - REPRESENTATION - OBJECTIVE DECISION - REASONED ORDER - LEGAL POSITION - INTERFERENCE - GROUNDS - MALAFIDES - STATUTORY PROVISIONS - ADMINISTRATIVE EXIGENCY - TENURE - SATURDAY TRANSFER - OFFICIAL INSTRUMENTS - OFFICIAL SIM CARD - IMPLEADED PARTY - AUTHORITY - ASSUMPTION OF CHARGE - MALAFIDE ATTRIBUTION - OFFICER - PARTICULAR AUTHORITY - EXTRAORDINARY CHALLENGES - ELECTRICITY SERVICES - CITIZEN - MODEL CODE OF CONDUCT - HURRIED TRANSFER - MALAFIDE - TRANSFER ORDER - NAMES - ASSUMPTION OF CHARGE - AUTHORITY - CONSEQUENCE - EXECUTIVE ENGINEER - CHARGE OF SUPERINTENDING ENGINEER - EXPERIENCE - REGULAR SUPERINTENDING ENGINEER - SENIOR AND EXPERIENCED SUPERINTENDING ENGINEER - LARGE TOWN - SERVICES - FURNISHED REASON - REPLY - RESPONDENT AUTHORITY - CONVINCING - PARAMETERS - MALAFIDE - STATUTORY VIOLATION - ADMINISTRATIVE EXIGENCY - PRECEDENT LAW - INTERFERENCE - TRANSFER ORDER - DISMISSAL - STAY PETITION - DISMISSAL.
Fact of the Case:
Petitioner challenged the impugned transfer order dated 09.03.2019, whereby he was transferred from the post of Superintending Engineer (I&S), Jodhpur to the post of Superintending Engineer (O&M), Hanumangarh against the posting of respondent No.4. The order was issued to respondent No.2 making the transfer with immediate effect and the petitioner's name was at serial No.2 as his place of posting shown as Superintending Engineer (O&M), Hanumangarh.
Finding of the Court:
The Court observed that the interference in the transfer orders can be broadly made on the grounds of established malafides, non-compliance of statutory provisions and the transfer orders beyond the reason of administrative exigency. The Court found that the petitioner was transferred after he had completed about six years' tenure on various posts and the transfer was made in a hurried manner before election Model Code of Conduct coming in place, but it did not show any malafide. The Court also found that the transfer order contained total 13 names, assumption of charge by an authority would be of no consequence and the petitioner, who was admittedly an Executive Engineer and was holding the charge of Superintending Engineer (I&S), JdVVNL, Jodhpur would not have the kind of experience with the regular Superintending Engineer would have. The Court held that the services of senior and experienced Superintending Engineer's being required is the reason furnished in the reply of the respondent authority which is quite convincing.
Issues: Whether the transfer order was passed with malafide intention and without any bonafide administrative exigencies. Whether the transfer order was passed in violation of the transfer policy/guidelines approved by the Coordination Committee of Rajasthan State Power Sector Companies.
Ratio Decidendi: The Court held that the transfer of the petitioner was not malafide and was made in administrative exigency. The Court relied on the precedent laws laid down by the Hon'ble Apex Court in The State of Punjab Vs. Ramji Lal and Others, (1971) AIR SC 1228 and Uddar Gagan Properties Limited Vs. Sant Singh and Others, (2016) 11 SCC 378, whereby the Hon'ble Apex Court has held that to establish mala fide, it is not necessary to name the particular officer or officers responsible for the official act and if the act was of the State undoubtedly, the same could be gone into by the court.
Final Decision: The Court dismissed the petition and the stay petition.
JUDGMENT
Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition under Article 226 of the Constitution of India, claiming the following reliefs:
"i) by an appropriate writ, order or direction, the impugned suspension order dated 09.03.2019 (Annexure-1) may kindly be declared illegal and be quashed qua the petitioner with all consequential directions;
ii) by an appropriate writ, order or direction, the consequential handling over-taking over of charge at Hanumangarh vide report dated 09.03.2019 (Annex.3) as well as assumption of charge at Jodhpur by the respondent No.4 vide charge assumption report dated 10.03.2019 (Annex.4) may kindly be declared illegal and be quashed;
iii) Any other appropriate writ, order or direction which this Hon'ble Court considers just and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner;
iv) costs of the writ petition may kindly be awarded to the petitioner."
2. Brief facts of the case, as noticed by this Court are that the petitioner has assailed the impugned order dated 09.03.2019 whereby he has been transferred from the post of Superintending Engineer (I&S), Jodhpur to the post of Superintending Engineer (O&M), Hanumangarh against the posting of respondent No.4. The order dated 09.03.2019 has been issued to respondent No.2 making the transfer with immediate effect and the petitioner's name is at serial No.2 as his place of posting shown as Superintending Engineer (O&M), Hanumangarh.
3. Learned counsel for the petitioner submits that the transfer order has been passed to accommodate the respondent No.4, who had been recently transferred to Hanumangarh on 07.02.2019 and was being transferred back to Jodhpur without any justifiable reason.
4. Learned counsel for the petitioner further submits that the transfer order was not served in time and in fact it was concealed from the petitioner and not communicated to the petitioner.
5. Learned counsel for the petitioner also submits that the transfer order was passed on Saturday, which is not a working time of the respondents and it shows the extraordinary hurry, in which the transfer order has been passed and the same speaks for itself. Learned counsel for the petitioner further submits that such transfer order is actuated with malafides and without any bonafide administrative exigencies.
6. Learned counsel for the petitioner further submits that the respondent No.4 was having the complete knowledge of the transfer order even when the petitioner did not know about it and thus, gave his charge at Hanumangarh on 09.03.2019 itself. Learned counsel for the petitioner also submits that on 10.03.2019, the respondents No.4 assumed the charge of Superintending Engineer (I&S), JdVVNL, Jodhpur at forenoon even when it was Sunday and the charge could not have been assumed on that day.
7. Learned counsel for the petitioner further submits that the assumption of charge of respondent No.4 has been countersigned by respondent No.3, who happens to be Additional Chief Engineer, CSS, JdVVNL, Jodhpur whereas the post of Superintending Engineer (I&S), JdVVNL, Jodhpur was linked with Additional Chief Engineer (Material Management) and not with the Additional Chief Engineer (CSS). Learned counsel for the petitioner also submits that the respondent No.3 has countersigned the charge assumption report of respondent No.4 even when he was not authorized to do that and thus, he has done with the malafide intention.
8. It is contended by learned counsel for the petitioner that the Election Commission was moving ahead with the programme of elections and the Code of Conduct pertaining to the elections were to be in place just after the transfer order on 09.03.2019, which seems to be the reason why the respondents have hurriedly passed such orders with malafide intention.
9. Learned counsel for the petitioner further contends that the automatic relieving deemed by the respondents should have been curtailed in pursuance of
