Km. Amita Varun vs State Of U.P. And 3 Others
2018 Latest Caselaw 3995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

		  								    A.F.R.
 
Reserved On: 01.05.2018
 
Delivered On : 27.11.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 10286 of 2018
 

 
Petitioner :- Km. Amita Varun
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Prabhakar Awasthi,Shanti Dhar Dwivedi
 
Counsel for Respondent :- C.S.C.,Amit Kumar,Ashish Kumar Singh
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Neeraj Tiwari,J.

( Delivered by Hon'ble Sudhir Agarwal, J.)

1. Sri Prabhakar Awasthi, learned counsel for petitioner and learned Standing Counsel for respondents. On behalf of respondents no counter affidavit has been filed and it is stated that since original record pertaining to transfer of petitioner is being produced before Court for its perusal, matter may be considered and decided after perusal of record and also after hearing the respective arguments of counsel for parties. We, therefore, proceed to hear and decide this writ petition at this stage under Rules of the Court.

2. The writ petition under Article 226 has been filed by sole petitioner Km. Amita Varun assailing order dated 9.4.2018 issued by Special Secretary, U.P. Government communicating to Director Local Bodies that government in public interest has decided to transfer petitioner from the post of Executive Officer, Nagar Palika Parishad, Garhmukteshwar, District Hapur to the post of Executive Officer, Nagar Palika Parishad, Marhara, District Etah; and consequential order dated 12.4.2018 whereby Director, Local Bodies, giving effect to the letter dated 9.4.2018, has transferred petitioner to Nagar Palika Parishad, Marhara Distrct Etah.

3. The order of transfer has been challenged on the ground of frequent transfer of petitioner and malicious exercise of power.

4. Petitioner joined the post of Executive Officer, Nagar Palika Parishad, Sikarpur, District Bulandshahar on 27.04.2007, after being selected by Uttar Pradesh Public Service Commission (hereinafter referred to as "UPPSC").

5. Post of Executive Officer, Nagar Palika Parishad is a centralized post. It is governed by U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as "Rules, 1966").

6. Various transfers of petitioner made subsequent to her posting at Nagar Palika Parishad, Sikarpur, District Bulandshahar, are detailed as under:-

SI.No.

Date of Transfer

From

To

05.06.2008

Nagar Palika Parishad, Sikarpur, District Bulandshahar

Nagar Palika Parishad, Gursarai, District Jhansi

20.02.2009

Nagar Palika Parishad, Sursarai, District Jhansi

Nagar Palika Parishad, Mahrara, District Etah

05.02.2011

Nagar Palika Parishad, Mahrara, District Etah

Nagar Palika Parishad, Syana, District Bulandshahar

05.06.2013

Nagar Palika Parishad, Syana, District Bulandshahar

Nagar Palika Parishad, Bahjoi, District Sambhal

01.09.2014

Nagar Palika Parishad, Bahjoi, District Sambhal

Nagar Palika Parishad, Shamli, District Shamli

06.01.2016

Nagar Palika Parishad, Shamli, District Shamli

Nagar Palika Parishad, Jaswant Nagar, District Etawah

07/04.2016

Nagar Palika Parishad, Jaswant Nagar, District Etawah

Nagar Palika Parishad, Jahagirabad, District Bulandshahar

26.5.2016

Nagar Palika Parishad, Jahagirabad, District Bulandshahar

Nagar Palika Parishad, Sikarpur, District Bulandshahar

30.06.2017

Nagar Palika Parishad, Sikarpur, District Bulandshahar

Nagar Palika Parishad, Bilari, District Moradabad

25.10.2017

Nagar Palika Parishad, Bilari, District Moradabad

Nagar Palika Parishad, Muradnagar, District Ghaziabad

7. When petitioner was posted at Muradnagar, District Ghaziabad, one Shamim Ahmad was officiating as Executive Officer thereat. He was attached to Directorate Urban Local Bodies, Lucknow by order dated 25.10.2017, whereagainst, he filed Writ Petition No.26033 (SS) of 2017 stating that he is going to retire on 31.01.2018, therefore, his transfer is against transfer policy. Court, on 1.11.2017, while disposing of writ petition, passed following order:-

"Heard learned counsel for the parties.

Learned counsel for petitioner submits that the petitioner is to retire from service on 31.1.2018 and, therefore, keeping with the transfer policy of the State Government which permits choice posting at a place other than the home district to those who are due to retire within two years, as far as possible, his claim is liable to be considered by the opposite party No. 2, but, is not being considered and his relieving is being insisted on basis of the impugned transfer order.

Considering the facts and circumstances of the case, now, that the petitioner has approached this Court, it would be appropriate if the opposite party No.2, considers the aforesaid claim of the petitioner, say, within a period of two weeks from the date a certified copy of this order is submitted.

Only for a period of two weeks the petitioner shall be allowed to continue at Murad Nagar, district Ghaziabad, subject, of course, to the decision to be taken by the opposite party No.2 as aforesaid.

Learned Standing Counsel shall also communicate this order to the opposite party No.2 for compliance.

With the aforesaid observations, the writ petition is disposed of.

Let a copy of this order be given to the learned counsel for the parties within 24 hours, on payment of usual charges, if possible."

(emphasis added)

8. In view of High Court's interim order, petitioner had no place to work, therefore, she also came to this Court in Writ Petition No.53915 of 2017, wherein on 15.11.2017, Division Bench of this Court passed following order:-

"Heard Sri Sanjay Singh Kumar Singh, learned counsel for the petitioner.

The petitioner has been transferred from Nagar Palika Parishad Bilari, District Moradabad to Nagar Palika Parishad Muradnagar, District Ghaziabad.

The submission of learned counsel for the petitioner is that the aforesaid order has been passed on the request of respondent no. 8, who is (B.J.P.) M.L.A. and that he has been transferred several times in a very short span of time.

The petitioner has even joined in pursuance of the transferred order but transfer of respondent no.7, who was working as Executive Officer, Nagar Palika Parishad Muradnagar, District Ghaziabad has been stayed by the Lucknow Bench of this High Court, therefore, there is no place on which the petitioner can function.

Learned Standing Counsel appearing for respondent nos. 1, 2, 3 and 5 are directed to file counter affidavit within a month.

Issue notice to respondent nos. 4 and 6.

List for admission/final disposal immediately thereafter.

In the meantime, it will be open for the petitioner to bring all the above facts in the notice of the authority concerned and it is expected that the competent authority will deal with the representation in accordance with law."

9. In view of above two orders passed by Court at Lucknow as well as Allahabad, another order was passed on 7.12.2017 posting petitioner as Executive Officer, Nagar Palika Parishad Garhmukteshwar, District Hapur. Petitioner joined on the said post, but within less than four months, by impugned order dated 12.04.2018, she has now been transferred again from Nagar Palika Parishad Garhmukteshwar, District Hapur to Nagar Palika Parishad Marhara District Etah.

10. It is claimed that petitioner is being harassed and victimized by respondents on political reasons. Petitioner is an unmarried lady, has to take care of her old ailing mother and since she never surrendered to the wishes of political parties, she has made scapegoat every time, which is evident from frequent transfers of petitioner from one Nagar Palika Parishad to another. In the last 10 years, impugned transfer is eleventh. Sri Prabhakar Awasthi, learned counsel for petitioner contended that impugned order of transfer is patently illegal, arbitrary and malicious in law having not been made in public interest, but for reasons other than bonafide.

11. Looking to the aforesaid facts, this Court find it expedient to have perusal of record pertaining to transfers of petitioner as to why she was so frequently transferred. In last two years for six times, she has been transferred.

12. Record produced by respondents contain documents commencing from March, 2017. We find that one Mahesh Chandra Gupta, Member of Legislative Assembly of Bhartiya Janta Party Constituency-115 Badaun wrote a letter dated 12th April, 2017 to Urban Development Minister complaining against petitioner and requiring her transfer to a place outside from District Bulandshahar. Thereon, Minister passed an order on 13.4.2017, "Director should talk to him". Thereafter, an order was passed on 23.05.2017 that after discussion with Minister, it has been decided to transfer petitioner to any other Nagar Palika Parishad in District Bulandshahar itself and consequently on 26.05.2017, petitioner was transferred from Jahagirabad to Sikarpur in District Bulandshahar itself. Transfer order, which is on record also shows that petitioner was relieved forthwith without waiting for Relieving Officer. It was also directed that she will not be allowed to take any leave etc. till she takes charge at transferred place. This is evident from transfer order dated 26.5.2017 issued by Sri Vishal Bhardwaj, Director Local Bodies.

13. We also find from record that there was a general order of transfer passed on the same day i.e. 26.05.2017, whereby 49 Executive Officers were promoted from Nagar Panchayat to Nagar Palika Parishad Grade-III and posted at different Nagar Palika Parishads, but there was no transfer made at Nagar Palika Parishad Jahagirabad, District Bulandshahar to justify petitioner's transfer from said place. Hence, it is evident that petitioner's transfer from Jahagirabad to Sikarpur was clearly on the complaint made by Sri Mahesh Chandra Gupta, MLA of Bhartiya Janta Party and the directions issued by Minister of concerned Department.

14. Thereafter, Smt. Raj Bala Devi, Adhyaksha Nagar Palika Parishad, Sikarpur made a request to State Minister (independent charge) Panchayati Raj Vibhag, whereupon Sri Bhupendra Singh, Rajya Mantri (Swatantra Prabhar) Panchayati Raj/ Lok Nirman Vibhag sent a letter dated 2.6.2017 to Director, Local Bodies, directing him to transfer petitioner from Sikarpur to elsewhere and post one Sanjeev Ram, Executive Officer, Mathura to Nagar Palika Parishad, Sikarpur, District Bulandshahar. Acting thereupon, Sri Vishal Bhardawaj, Director, Local Bodies, passed order dated 30.6.2017 and transferred petitioner to Nagar Palika Parishad, Bilari District Moradabad, whereat petitioner joined on 7.7.2017.

15. Record of transfer of petitioner from Bilari to Garhmukteshwar has not been produced.

16. Second file has documents from February, 2018 and onwards when petitioner was posted at Garhmukteshwar. Here entire file contains a lot of letters of various Corporators and Representatives making complaints against petitioner including Adhyaksha, Nagar Palika Parishad, Garhmukteshwar.

17. Sri Maniram Singh, Joint Secretary, Nagar Vikas Vibhag made a note dated 27th March, 2018, whereupon Sri Suresh Kumar Khanna, Minister, Sansadiya Karya, Nagar Vikas, passed an order on 5.4.2018 directing petitioner's posting at Nagar Palika Parishad, Marhara, District Etah. Thereafter, Sri Umesh Pratap Singh, Special Secretary, Nagar Vikas put on the order sheet a note dated 9.4.2018 that petitioner is a Grade-III Executive Officer and her appointing authority is Director, Local Bodies, therefore, it should be informed to comply with order of Minister.

18. We do not find anything from record that at any point of time petitioner has been found indulged in any act of corruption etc. She has never been issued any charge sheet. No disciplinary action has ever been taken. It appears that petitioner is a young officer and a bold lady and that is why local political persons find it difficult to carry out their work with favour from petitioner and that it appears to be a cause of dissent amongst political clout resulting in political complaints. Unfortunate part is that permanent bureaucracy, in a faithful manner, without acting independently, is simply carrying out orders of political bosses and has not cared even to look into the fact that petitioner is being transferred so frequently that within a span of two and a half years, six orders of transfers including impugned order have been issued. In earlier 8 years also, we find five transfers of petitioner from one place to another. The normal duration of petitioner is almost less than an year, on average basis, to stay at one place.

19. This Court is aware that transfer is not a punishment but an exigency of service, but when frequent transfers, not by independent application of mind by Appointing Authority in public interest, but on political considerations are made, such orders of transfer are vitiated in law, being malicious exercise of power in law. An order of transfer is to be made by Competent Authority independently, in public interest and in the interest of administration. It cannot be for convenience or satisfaction of any political person or group of such persons or on the dictate of such persons. Such an exercise made by Competent Authority demonstrates non application of independent mind on his part and shows lack of objective consideration. Such exercise is nothing but an exercise of power founded on malice in law.

20. Court has summarised "malice in law " in (Smt.) S.R. Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8) (emphasis added)

21. Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:

"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

22. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643, Court said :

"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."

23. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, Court in para 16 of judgment observed as under:

"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." (emphasis added)

24. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112, Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide." (emphasis added)

25. In brief, malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. [See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198].

26. We are constrained to observe that present case is an apparent illustration of gross misuse of power of transfer in the hands of competent authority. Such arbitrary exercise of power demoralizes officer concerned in discharge of duties honestly, objectively, independently and in the interest of public. It is such arbitrary exercise of power which many a time results in surrender and kneeling down on the part of officer concerned, to act in a manner so as to please political bosses to avoid any scope of such frequent transfers.

27. In the present case, Director, Local Bodies, is appointing authority of petitioner. He is the authority competent to transfer petitioner. He is an independent authority, Head of Department and part of permanent bureaucracy. Unfortunately, this authority has notwithstood to its independence and objectivity in exercise of powers of transfer of officers within its domain, but has shown a meek surrender to the wishes of political bosses and even Ministers of different departments.

28. In a democratic country governed by a written constitution every authority, who has conferred with certain powers is supposed to exercise those powers and function without fear and favour, independently and with prime objective of public welfare and not for appeasement of political clout. Unfortunately, such daring, bold and honest officers, we find, are rare. Mostly officers are in the other category. Director, Local Bodies, in the present case, who has passed impugned order of transfer, has also shown a total lack of independent and objectivity in exercise of power on his part.

29. This Court repeatedly required learned Standing Counsel as to whether there is any allegation of corruption etc against petitioner and whether any such allegation, if exists had been enquired and found correct, to which he replied in negative.

30. Looking to the entire facts and circumstances, we are satisfied that here is a case where in the garb of exercising power of transfer as an exigency of service, petitioner has been harassed like anything and power of transfer is so frequent that it has ceased to be a non-punitive exercise, but become punitive one and is also vitiated on the ground of malice in law.

31. Writ petition, accordingly, is allowed. The impugned order of transfer is hereby set aside.

32. In view of facts discussed above, we are of the view that petitioner is also entitled to exemplary costs which we quantify to Rs. 50,000/- against respondent no.3 which shall be paid to petitioner within two months from today.

Order Date :- 27.11.2018

Junaid/AK