State Of Maharashtra And Ors. vs Prakash Pandharinath Patil And ...
2005 Latest Caselaw 902 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Since the common question of law and facts arise in all these petitions, they were heard together and are being disposed of by this common judgment.

2. Heard. Rule. By consent, the rule is made returnable forthwith in all the petitions. Perused the records.

3. In all these petitions, petitioners are challenging the judgment and older dated 29th June, 2005 passed by the Maharashtra Administrative Tribunal at Aurangabad whereby the original applications filed by the applicants in the Original Application Nos. 425, 426, 427 and 428 of 2005 before the Maharashtra Administrative Tribunal, Aurangabad, and who are the respondent No. 1 in the Writ Petition Nos. 4749, 4750, 4751 and 4752 of 2005, have been allowed while setting aside the orders of transfer in respect of the said respondents. Similarly, the petitioners in the Writ Petition Nos. 4939, 4940, 4941 and 4942 of 2005, who were the private respondents in the said Original Applications before the Maharashtra Administrative Tribunal, Aurangabad, have challenged the said judgment and order dated 29th June, 2005, as allowing of those original applications has resulted in cancellation of transfer orders of these petitioners.

4. Few facts relevant for the decision in the matter are that the applicants in the Original Applications before the MAT filed the applications challenging the orders of their transfer from the place they have been working to some other place on the ground that such transfers were in breach of the guidelines issued for the purpose of transfer of the Government Employees, inasmuch as that the transfers have been effected in contravention of the guidelines relating to the period for which a government employee should be retained at a particular place before being transferred and secondly that such transfers have been made arbitrarily inasmuch as that while those applicants were transferred without even allowing them to complete one year at the place where they were posted earlier while some other employees have been retained at their earlier posting/place for number of years, and in that regard, reference was made to three of such government employees. The petitioners also allege mala fide on the part of the authorities in effecting the transfers of the applicants. The applications were opposed on behalf of the Government. The Tribunal, however, while holding that the transfers are in contravention of the government guidelines, the orders in respect thereof are held to have been issued mala fide and in colourable exercise of powers, and therefore, has allowed the applications while setting aside the orders of transfer. Hence, the present petition.

5. Placing reliance in the decisions in the matter of State of U. P. and Ors. v. Gobardhan Lal, , The Union of India v. Pandurang Kashinath More, reported in AIR 1962 SC 630, Sahebrao D. Labde v. Jaising Shivaji Patil and Ors. reported in 2003(1) Mh.L.J. 358, Union of India and Ors. v. S. L. Abbas, , and Arun Damodar Veer v. State of Maharashtra and Ors. reported in 1999(2) Mh.L.3. 280 : 2001(2) Mah.LR. 62, Shri K. K. Singhvi, learned Senior Counsel appearing for the State submitted that the Tribunal clearly erred in arriving at the finding that merely because there was so called contravention of the government guidelines in relation to the transfer of the government employees that by itself was sufficient to conclude that the transfer orders were issued mala fide and/or in colourable exercise of powers and more so when there was neither accusation of colourable exercise of powers by the applicants in the original applications nor they had disclosed any fact which could reveal that the orders of transfer were issued mala fide. He further submitted that the guidelines do not create any enforceable right in favour of the government employees, and therefore, mere infraction though, even assuming that there is any such infraction on account of transfers of some of the government employees, would not lead to the conclusion that the action is tainted with mala fide and/or it could give rise for any enforceable action in favour of the government employees. Drawing our attention to the pleadings in the original applications, the learned Senior Counsel submitted that apart from the allegation of mala fide, there were no facts disclosed in the pleadings in support of such allegation. He further submitted that originally three names of the employees were disclosed in the applications stated to have been retained at one place for number of years. It was only in the rejoinder that an attempt was made to disclose some other names of such persons who are stated to have been retained at one place for number of years. In that regard, the State had prayed for leave to file its reply to such allegation in the rejoinder. The said prayer was rejected by the Tribunal. Being so, it was not appropriate for the Tribunal to rely upon the materials which were sought to be produced by the applicants in the course of filing of the rejoinder without affording any opportunity to the State to meet the new case which was sought to be pleaded in the rejoinder. In any case, he has submitted that even those employees who have not been transferred for number of years are also being considered for transfer, and appropriate action in that regard would be taken in due course of time. He has also further drawn our attention to the fact that though there was allegation of favouratism to some of the government employees on account of non-transfer of such employees, they were not made parties to the proceedings before the Tribunal.

6. Shri P. M. Shah, learned Senior Counsel appearing for the original applicants before the Tribunal, while placing reliance in the decision in State of Gujarat v. Akhilesh C. Bhargav and Ors., , M/s Kusum Ingots and Alloys Ltd. v. Union of India and Anr., and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pendey and Ors., , submitted that the orders of transfer were not challenged on the allegation of mala fide but they were challenged on the ground that the decision to transfer was in arbitrary exercise of powers by the concerned authorities. He has further submitted that the guidelines though are executive instructions are analogous to the legislation and any infraction thereof would give cause of action for the aggrieved employee to invite intervention of the Court in writ jurisdiction. He also submitted that there were no administrative exigencies as such since the transfers were in the course of general transfers of the government employees. Drawing attention to the guidelines in relation to the transfer of employees, he submitted that the same specifically provide that transfer is not to be ordered for a period of one year from the date of appointment of an employee at a particular place and normally the transfers are to be effected .after completion of three years at one place and not till completion of five years in one District. Taking us through the original applications, he further submitted that the facts stated therein abundantly disclose arbitrary exercise of powers by the authorities in issuing the said transfer orders. Even though originally, only three names were disclosed, sufficient details were given in the rejoinder and assuming that the Tribunal did not allow them to file further rejoinder, nothing prevented the State in coming out with an appropriate reply to those facts while filing the present petitions. Attention was also drawn to the order which was passed by this Court in the writ petition which was filed challenging the interim order which was granted during pendency of the original applications before the Maharashtra Administrative Tribunal, and more particularly in relation to one Shri Shubhash Sopanrao Jadhav, who is the respondent No. 1 in the Writ Petition No. 4752 of 2005. He also submitted that the arbitrary exercise of powers or infraction of guidelines in that regard gives enforceable right to the employees, and therefore, no fault can be found with the impugned orders passed by the Tribunal, quashing the transfer orders in question.

7. It is well settled law that the transfer is an incidence of service and in the absence of it being an arbitrary action or order being issued mala fide, there cannot be any occasion for the Court to interfere in such order. In fact, all the decisions sought to be relied upon invariably lay down the same principle of law. The Apex Court in Kendriya Vidyalaya Sangathan's case (supra) has reiterated the said principle of law while referring to three of its earlier decisions. Undoubtedly, the Apex Court therein refused to interfere in the orders of transfer and clearly held that the allegations of mala fide were not established and the transfer was not vitiated on any score, and the finding in that regard by the High Court was not disturbed. The learned Senior Counsel for the original applicants, however, repeatedly drew our attention to the observations in the said decision to the effect that "unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules the Courts should not ordinarily interfere with it", and submitted that violation of any operative guidelines itself gives rise for cause to the aggrieved employee to seek intervention of the Court under writ jurisdiction. In fact, the said observation is the reiteration of the earlier observation by the Apex Court in Union of India v. S.L Abbas, . Needless to say that a reference to the said observation from S. L. Abbas's case (supra) as well as to two other decisions viz. Union of India and Ors. v. Janardhan Debanath and Anr., as well as Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169 was made by the Apex Court while dismissing the appeal on the ground that the employee had failed to establish his ground of challenge to the transfer which related to the allegation of mala fide in respect of the order of transfer. It is always to be borne in mind that the ratio of a judgment is to be understood bearing in mind the facts of the case and the issue involved in the matter and ruling given by the Apex Court or High Court in that regard. Ratio of a judgment cannot be understood by picking up a sentence or two from here or there from the judgment nor any sentence in a judgment can be read as a statutory provision. The law in that regard is well settled and one can advisedly refer to the decision of the Supreme Court in the matter of Union of India v. Dhanwanti Devi and Ors., 1996(6) SCC 44. Reference to various decisions by way of reliance while disposing the matter cannot be construed as ratio of the decision. Those references will have to be understood bearing in mind the facts of each of those cases, issue involved in each of the matter for consideration and the decisions arrived therein. Considering the same, if one peruses the decision in S.L. Abbas's case (supra), the ratio of the said decision is to the effect that the transfer orders in relation to the government employees issued by the Government even though issued without strictly following the guidelines framed by the Government that by itself cannot be a justification for interference by the Courts unless such order is vitiated by mala fide or is made in violation of the statutory provisions. The Apex Court in the said S. L. Abbas's case while referring to Fundamental Rule 11, which provided that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority", and further to Fundamental Rule 15 which provided that "the President may transfer a Government servant from one post to another", 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. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right". (emphasis supplied). Referring further to the facts of that case, it was held by the Apex Court therein that "it is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he-should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force." The observations in Kendriya Vidyalaya Sangathan's case (supra) with reference to the earlier decision of the Apex Court in Union of India v. S. L. Abbas (supra) have to be understood in the context of those facts of S. L. Abbas case and the ruling given by the Apex Court therein and it cannot be understood independently of the said decision. It has also to be borne in mind that all those observations in Kendriya Vidyalaya Sangathan 's case were on account of failure on the part of the respondent, an employee therein, to establish the allegation of mala fide with necessary factual matrix in support thereto.

8. As regards the decision of the Apex Court in M/s Kusum Ingots and Alloys Ltd. 's case (supra) is concerned, and particularly the observations in paragraph 26 to which attention was drawn by learned senior counsel for the original applicants, the same were while dealing with the issue as to whether the situs of office of the Parliament, Legislature of a State or authorities would be relevant factor for determination of territorial jurisdiction of the High Court to entertain the Article 226 of the Constitution of India. While observing that the facts pleaded in a writ petition must have a nexus on the basis whereof a prayer can be granted and those facts which had nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction of the Court, the Apex Court has held therein that "passing of a legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause of action arises therefor," and "a distinction between a legislation and executive action should be borne in mind while determining the said question". Further the Apex Court in the paragraph 26 has held that "in fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof. Situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the make thereof." One fails to understand how this ruling is of any assistance to the original applicants to canvass the point that the guidelines framed by the Government in relation to the transfer of the employees would create an enforceable right in favour of such employee or that the guidelines would partake the nature of the legislation. Ruling of the Apex Court nowhere lays down the law to the effect that the guidelines which are framed by the Government in relation to the policy to be followed in the matter of transfer of employees would partake the nature of subordinate legislation and that, therefore, would create a right in favour of the government employee for compelling the Government to strictly comply with those guidelines while effecting the transfer of such employees. Such guidelines cannot be construed to mean an executive instruction which can create an enforceable right in favour of the employees in case the Government does not strictly comply with such instruction. Unless the aggrieved employee is able to establish either the order being tainted with mala fide or the same being in arbitrary exercise of such powers by disclosing the necessary facts or material which can reveal such action to be mala fide or arbitrary and further that the action is in violation of the statutory provisions, the question of interference by this Court in writ jurisdiction in such orders of transfer does not arise. In fact, that is the law laid down by the Apex Court in various decisions sought to be relied upon by both the parties and it is not necessary to refer to each of those decisions elaborately.

9. In the case in hand, undisputedly, the applicants did not approach the Tribunal with allegation that the orders were issued mala fide. But the grievance of the applicants is that the power has been exercised arbitrarily. Undoubtedly, in case of allegation of mala fide, it was necessary for the applicants to disclose necessary facts which could reveal that the orders of transfer have been issued mala fide. But once it is undisputed on behalf of the original applicants that the challenge was not on the ground that the orders of transfer being mala fide, it is not necessary to deal with the said point any further.

10. As regards the contention that the orders were passed in arbitrary exercise of powers, the only ground in support of such allegation is that various other persons who have been retained at the same place for number of years have not been transferred whereas the applicants who have not even completed one year have been transferred under the impugned orders. At the same time, it is undisputed fact that the transfers have been ordered in the course of general transfers of the government employees. It was sought to be argued on behalf of the original applicants that in such cases there cannot be an administrative exigency as such and it could have been a ground only in case they were isolated instances of transfer and not being in course of general transfer. The contention does not appeal to our mind. Even in course of general transfer, the Government is required to take into consideration the administrative exigencies. Merely because the transfers are in normal course of general transfer, it cannot be presumed that there cannot be any consideration of administrative exigencies. Besides, whether there are administrative exigencies or not, is not the pure question of law. The parties contending the absence of such exigencies and on that count challenging the transfer orders effected in the course of general transfers of employees have to put forth necessary factual data which can justify the allegations of arbitrariness or about the absence of such exigencies. It cannot be decided on mere allegations in that regard.

11. As regards the contention that number of persons have been retained at the same place without being transferred while the original applicants are sought to be transferred without even completion of one year at the place where they were posted last, it is to be noted that in the original applications, there was reference to such retention of three employees and it was only in the rejoinder that some more names were sought to be added in that regard. It is to be noted that the rejoinder does not form part of the pleadings. It forms part of the evidence in support of the pleadings. The basic fact has necessarily to be pleaded in the original application by the parties. Undoubtedly, there were pleadings in the original applications about the action on the part of the Government in retaining some of the employees at the same place for number of years and in that regard the evidence was sought to be given in the rejoinder by referring to various names. However, once such evidence was sought to be placed on record, it was necessary for the Tribunal to give fair opportunity to the State to reply to the same and to meet the case of the original applicants in the rejoinder by giving necessary explanation on the part of the Government. Without giving such an opportunity to the Government, such evidence could not, have been relied upon.

12. However, it is also to be noted that merely because some persons have been retained at a particular place for number of years that itself cannot be a ground to conclude that the transfers of the original applicants were in arbitrary exercise of powers. As already observed above, when the transfers are effected on account of administrative exigencies, it is for the competent authority dealing with the matter to decide as to who should be placed at what place and who should be transferred from one place to another and as to how long a person should be retained at a particular place. All these things will depend upon the various facts and circumstances to be considered while dealing with the issue of transfer from one place to another with reference to a person as well as the post. Therefore, merely some persons are retained at a particular place for number of years, that itself cannot lead to the conclusion that the Government is favouring those persons. Similarly, only because a person has been transferred even before completion of the period of one year, that by itself also would not lead to the conclusion that the Government has acted arbitrarily in effecting such transfer. Every such case would depend upon the facts of each case and unless the party claiming to be aggrieved by an order of transfer comes out with necessary facts which could reveal the exercise of powers being arbitrary or tainted with mala fide, the question of interference by the High Court in writ jurisdiction in the order of transfer cannot arise.

13. Perusal of the impugned orders, as rightly submitted by learned senior counsel for the State, clearly discloses that the Tribunal has granted the relief on totally extraneous ground and the basis which are not borne out from the record. The Tribunal has observed thus :-

"but when there are series of transfer orders and while issuing each one of them, there is contravention of the Government Guidelines, there is reason to believe that there is substance in the contention of the respondents that transfer orders are issued mala fide and in colourable exercise of powers. It is only in this context I am inclined to hold that the transfer orders are liable to struck down."

As already observed above, it is nobody's case that the transfer orders were issued mala fide. As the law laid down by the Apex Court, it is also clear that mere non adherence to the guidelines framed by the Government in relation to the transfer, that by itself cannot lead to the conclusion that the order is issued mala fide or to be in colourable exercise of powers. It would necessarily depend upon the facts of each case to be established by the person claiming to be aggrieved by the order of transfer. The original applicants had failed to establish any such arbitrary exercise of powers on the part of the Government in effecting their transfers.

14. As regards the case of Subhash Sopanrao Jadhav, the respondent No. 1 in the Writ Petition No. 4752 of 2005, learned senior counsel for the State has fairly conceded that in case a fresh representation is made by him stating difficulties which are to be faced by him, the same would be considered by the competent authority within four weeks from the date of receipt of such representation by Shri Subhash Sopanrao Jadhav. The said statement has been made, after taking instruction from the Commissioner, who is present in the Court.

15. For the reasons stated above, the writ petitions succeed and the impugned orders passed by the Maharashtra Administrative Tribunal, Aurangabad, cannot be sustained and are liable to be set aside and accordingly the same are hereby quashed and set aside. The orders of transfer against the original applicants as well as other persons in the petitions are hereby confirmed. Consequently, the original applications filed by the original applicants before the Tribunal stand dismissed.

16. Rule is made absolute in above terms with no order as to costs.