No Government servant can claim to remain at particular place on a particular post and the Courts will not interfere with the order of transfer unless it can appear to it that the transfer power has been abused or that the transfer has been made for a collateral purpose with oblique motive and colourable exercise of power.
(1991) 1 WLC 478
RAJASTHAN HIGH COURT (JAIPUR BENCH)
( Before : G. S. Singhvi, J. )
SURESH CHAND GARG — Appellant
STATE OF RAJASTHAN — Respondent
Civil Writ Petition No. 899 of 1991
Decided on : 27-02-1991
All India Loco Running Staff Association Northern Railway Vs. Union of India, (1985) RLR 297
Asu sing Vs. State or Rajasthan, (1984) RLR 143
B. Varda Rao Vs. State of Karnataka, AIR 1986 SC 1955
R.N. Sharma Vs. Union of India, (1983) RLR 41
Ram Charan das Vs. State of Rajasthan, (1986) RLR 680
Suraj mal Vs. State of Haryana, (1973) 2 SLR 863
Counsel for Appearing Parties
B.L. Samdaria, Advocate, for the Petitioner
G.S. Singhvi, J.—This writ petition of the petitioners is directed against the order dated 7.2.1991 (Ex. 9) passed by the Deputy Secretary to the Government Local Self Government Department whereby the petitioner has been transferred as Revenue Officer Grade-II from Municipal Council, Ajmer to Municipal Board, Sambhar.
2. The petitioner No. 1 is the person who has been transferred and petitioner No.2 is association of the officers serving in various Municipal Boards/ Councils in Rajasthan.
3. The petitioner had joined service as Revenue Officer Grade-II in the year 1980 on the basis of appointment order dated 27.8.1980 passed by the Government after he had been selected for this post in accordance with the provisions of Rajasthan Municipal Service Rules, 1963. By an order dated 19.12.1989 the petitioner had been transferred from Municipal Council Kishangarh Madanganj to Municipal Council, Ajmer . The petitioner has stated that he has been working as Revenue Officer Gr. II at Municipal Council, Ajmer without any complaint from any quarter.
4. The petitioner was instrumental in forming the Rajasthan Local Bodies Officers Association and he has been elected as President. Head Office of this association is located at Ajmer. The petitioner No.2 association submitted a charter of demands to Hon’ble Chief Minister of Rajasthan on 17.1.1990. When the demands raised in the demand charter were not met an agitation was conducted under the leadership of the petitioner. A settlement was arrived between the department and the association on 16.2.1990. The settlement bears the signatures of the petitioner in the capacity of the President of the association. Thereafter circular dated 20th February, 1990 was issued by the Director Local Bodies for implementing the said settlement.
5. According to the petitioners, petitioner No. 1 has been continuously agitating for the realisation of the lawful and justified demands of the officers of the Local Bodies. This has not been relished by respondents Nos. 1, 2 & 3. A letter dated 6.5.1990 was addressed by the petitioner to the Minister, Local Self Government pointing out the ill-will and malafide of the Director of the Local Bodies against the members and office bearers of the association. The association had lodged strong protes against the unbecoming and obdurate attitude of Shri K.K. Choudhary and other senior officers of the Directorate of the Local Bodies. The petitioners have further alleged that Ajmer Municipal Count is now headed by Shri Ratan -Lal Yadav who belongs to Bhartiya Jant Party. The Petitioner does not subscribe to the political ideology and phil sophy of Bhartiya Janta Party and therefore the Municipal Council, Ajmer has been lodging baseless and untenable complaints against the petitioner No. 1 for getting him transferred to some other place. A representation against this was made to the Director Local Bodies. on 15.11.1990.The petitioner has alleged that on account of the malafide of Shri K.K. Choudhary this order of transfer has been issued. It has also been stated that this transfer has been made in order of frustrate the activities of the petitioner as President of the association effectively. This has resulted in violation of fundamental right to form association which is guaranteed by Article 19(1) (c) of the Constitution of India.
6. Shri Samdaria learned counsel for the petitioner has strenuously urged that transfer of the petitioner is not bonafide. It is not in public interest or in the interest of service. The Petitioner No. 1 has been transferred for unexplained reasons. The transfer is actuated by malice of respondent No. 3 and also Shri Ratan Lal Yadav and other members of Bhartiya Janta Party who are controlling Municipal Council, Ajmer.-Shri Samdaria has placed reliance on the decision of this Court reported in R.N. Sharma v. Union of India 1983 RLR 41, Asu Singh v. State of Raj. 1984 RLR 143, and All India Loco Running Staff Association Northern Railway v. Union of India & Ors. 1985 RLR 297. Shri Samdaria has argued that impugned order of transfer passed on 7.2.1991 has resulted in clear violation of fundamental right of the petitioner No. 1 guaranteed under Article 19(1) (c) of the Constitution of India. According to him with his transfer petitioner No. 1 will not be able to effectively perform the functions as president of the association.
7. During the course of hearing Shri Samdaria has stated at bar that Shri K.K. Choudhary has been transferred from the office of the Director Local Bodies some time before the passing of the order dated 7.2.1991.
8. From the averments which have been made in the petition it is clear that the petitioner is a member of the Rajasthan Municipal Service and is governed by the Rajasthan Municipal Services Rules, 1963. He is liable to serve in any part of Rajasthan. Neither the status of the petitioner nor his salary has been adversely affected by the impugned order of transfer. As far aI; the plea of the petitioner that his transfer has been ordered on account of malice is concerned, it will be useful to refer Ex. 4 dated 6.5.1990 in which the petitioner has alleged malafide against the director, Local Bodies. It has been stated that he has been stated that he is out and out to help officers of Seva Parishad which is a defunct organisation and in order to do so he want to strangulate activities of the association of which the petitioner is President. However, in Ex. 6 which was made on 15.11.1990, the petitioner have not made any complaint against the Director Local Bodies. In fact Ex. 6 is addressed to the Director Local Bodies himself. In that representation it has been stated that some interested elements have threatened the petitioner with transfer else he should work according to their instructions. He stated that he had been posted at his home town Ajmer after 3 years and he may not be transferred due to political vengeance. It is thus clear that the petitioners did not make any complaint in this representation against the Director Local Bodies. No Material has been placed by the petitioner on record to show that the order dated 7.2.1991 has been passed at the behest of Shri K.K. Choudhary who admittedly stood transferred prior to the passing of the order of transfer dated 7.2.1991. It is not even the case of the petitioners that succession (sic) successor Shri K.K. Choudhary also bears any ill will against petitioner No.1. No. case of transfer of malice from one officer to another has been set up by the petitioner. It has not been alleged much less established as to how respondent No. 3 K.K. Choudhary has influenced the passing of order 7.2.1991 after he had been transferred from the office of the Director Local Bodies. Therefore the contention of the learned counsel for the petitioner that the order dated 7.2.1991 has been passed due to malafide of respondent No. 3 is without any substance.
9. Now coming to the allegation that the transfer order was passed due to political reasons, it must at once be observed that the allegations are absolutely vague. Nothing has been alleged specifically against any pal individual. No one has been impleaded as a party in the petition to meet the allegation of malafide. That apart the only statement made by the petitioner is that complaints have been made against him by the Municipal council because he does not subscribe to political ideology and philosophy of Bhartiya Janta Party. No Government servant or a servant of public body can have any political ideology or philosophy in the discharge of his duties. The petitioner has not shown as to how he has been victimised or harrassed on account of his so called political ideology or philosophy. Further it can hardly be argued by an employee that he is immune from complaints because he does not subscribe to political ideology or philosophy.
10. It must be remembered that allegations of malafide are often made but scarcely proved. The degree of proof required for proving the allegations of malafide is of quite high. Heavy litirden lies on the person to prove allegation of a malafide, who levels such allegations. Malafide can be proved either by direct evidence or by strong circumstantial evidence. In the present case no direct evidence has been brought on record to bring home the charge of malice. The allegations are wholly vague. Circumstantial evidence is totally lacking to prove malice.
11. Another argument of Shri Samdaria is that by the impugned transfer, the petitioner’s fundamental right guaranteed under Article 19(1)(c) has been infringed in as much as the petitioner will be deprived of his right to effectively work as president of association. This argument is untenable. Firstly merely by being an office bearer of an association. The petitioner has not acquired a licence to remain posted at a particular place. In addition to this, by the impugned order no restriction has been imposed on the petitioner to carry on his work as president. He can still continue as president and carry on his activities in association from Sambhar. Merely because he has been posted at some distance from the head quarter of association, it cannot be said that he will not be able to function as president. The transfer order does not put any restriction on petitioner’s fundamental right under Article 19(1)(c) of the Constitution of India.
12. In R.N. Sharma v. Union of India (Supra) the transfer involved almost all office bearers of a particular association of Jaipur Division who had participated in the control phone bycott. Learned counsel for the respondents in that case had failed to place any material before the Court to show that the transfer had been made in the public interest or the interest of the administration. The Court took notice of the fact that all the office bearers had been transferred and that some had been transferred even out of zonal railway and then quashed the order of transfer. In my opinion the principles of law laid down in the case is not applicable to the facts of the present case.
13. In Asu sing v. State or Rajasthan & Ors., 1984 RLR 143 a learned Single Judge had examined question of male fide in the matter of transfer at length. The Court found that when there is a wholesale breach of administration guidelines and there are frequent transfers and inference of malice can be drawn. The Court held that inference malafide can be drawn from the chain of circumstances which are placed before the Court. In Asu Singh’s case is clearly distinguishable on facts to the case of the petitioner. In All India Loco Running Staff Association Northern Railway v. Union of India & Ors. The case came related to denial of various service benefits to the members of the Association. That case did not involve challenge to the transfer and therefore no substance can be drawn of the petitioner from that case.
14. In B. Varda Rao v. State of Karnataka, AIR 1986 SC 1955 their lordship of the Supreme Court held that transfer is an incidence of service & Order of transfer which does not result in change of the conditions of service to the disadvantage of Government servant can not be interfered with. The Supreme Court also observed that mere violation of transfer policy does not give rise to a case for challenging the order of transfer before the Court of law. The decision of the Supreme Court has been followed by a learned Single judge in Ram Charan das v. State of Rajasthan, 1986 RLR 680. In that case Hon’ble Mr. M. B. Sharma J. observed that a Government servant is liable to be transferred to similar post in the same cadre and it is normal feature . No Government servant can claim to remain at particular place on a particular post and the Courts will not interfere with the order of transfer unless it can appear to it that the transfer power has been abused or that the transfer has been made for a collateral purpose with oblique motive and colourable exercise of power.
15. In Suraj mal v. State of Haryana, 1973 (2) SLR 863 it was held that only orderly demonstrations have been held to be governed by clauses 1(a) and 1(b) of Article 19 of the Constitution of India and a rule which prohibits the Government servant to go on strike has been upheld. When the action of the teachers is viewed in the light of these principles ,it becomes obvious that as soon as their union decided to go on strike which meant No Education’, no examination as also to hold chain hunger strikes before the residence of the Chief minister, their activities fell outside the scope of the rights guaranteed to them under Article 19 of the Constitution of India. The executive Government which is answerable for its action to the State Legislature was the duty bound to step in and take remedial measures for curbing the activities of those whose actions had placed almost the entire educational system in the state in jeopardy.The’ Constitution does not guarantee the petitioner to carry on an agitation at the place of their own choice which they may like to visit in contravention of their service rules which provide that the entire time of the public servant is at the disposal of the State Government and no such servant is at liberty to leave his headquarters even on gazetted holidays except with the permission of his immediate departmental superiors. Therefore the transfer of the petitioners, in the circumstances of this case, does not invade any of their fundamental rights.
16. In the present case from the petition itself it is clear that Ajmer is home town of the petitioner. According to petitioners own assertions complaints have been made by the authorities of the Municipal Council against him. The association of which the petitioner is president had organised dharna and other agitations. After taking over all views of the matter if the Government has decided to transfer of the petitioner and passed an order dated 7.2.91, the same cannot be castigated as arbitrary. The petitioner has failed to establish male fide of respondent No. 3 of any one else in the passing of the order dated 7.2.91.
17. Consequently I do not find any substance in the writ petition. The same is dismissed summarily.