In this petition the petitioner has challenged his transfer from Primary Health Centre, Bhesan, Dist. Junagadh to Dahod District, by order dated 28.12.2004. The petitioner who is working as a Medical Officer, Class-II post has impugned the above order on several grounds.
2.At the out-set, it may be noted that it is not the case of the petitioner that the transfer order is contrary to any statutory rule or that the same has been passed by an incompetent authority. The transfer liability of the petitioner is thus, not in doubt.
3.It is contended that by order dated 28.12.2004, the petitioner is ordered to report at District Panchayat office, Dahod, without there being any specific order of his posting and that therefore the order of transfer is arbitrary. I am unable to accept the contention of the Counsel for the petitioner. It is a matter of routine practice for the Government to issue transfer orders and direct the employee to report at the Head Quarters for being communicated further details of posting orders. Non-mentioning of the exact place of posting in the transfer order cannot render the transfer illegal or arbitrary in any manner.
4.It is next contended that the respondents have not taken into account the longer stay at the particular station of another doctor while transferring the petitioner who has been posted at Bhesan recently. In support of his contention that the station seniority should be reckoned for effecting transfer, learned Counsel has relied on the decision of this Court reported in 1984 GLH NOC 29.
4.1In the decision reported in AIR 1991 SC 532, the Hon'ble Supreme Court observed that the order of transfer should not be interfered with unless the same is malafide or contrary to statutory rules. In the decision reported in AIR 1993 SC 2486, the Hon'ble Supreme Court observed that it is entirely for the employer to decide when, where and at what point of time public servant is to be transferred. In the decision reported in 1993 SC 2444, it was observed that the guidelines do not confer legally justiciable rights and the Tribunal cannot act as an appellate authority examining the orders of transfer passed by the Government. This was once again reiterated in the decision of the apex Court reported in 2004 AIR SCW 2082.
4.2In view of the above settled legal position, it cannot be accepted that station seniority should be the sole basis for affecting transfer of a Government servant. The contention of the petitioner therefore, that he ought not to have been transferred since he was posted at Bhesan only recently and some other doctor was discharging his duties there since long and that solely on this ground the transfer should be quashed, cannot be accepted. It is entirely for the Government to decide who should be placed at which place. Unless it is shown that the transfer order is actuated by malafides or is contrary to statutory rules, the same cannot be interfered with.
5.The Counsel for the petitioner has also taken me through the averments made in the petition with respect to the allegations of malafides. It is alleged that the transfer is effected at the instance of respondent No.5 and that therefore, the same should be set aside. It is alleged that the respondent No.5 who is a local leader tried to harass the petitioner by pressurising him that he must purchase the medicines from one Patel Medical Stores run by one Pravinbhai Lakhani and since the petitioner did not oblige, respondent No.5 through the local MLA Shri Kanubhai Bhalala pressurised the authorities into transferring the petitioner. Except for the bare statement of the petitioner, there is no material on record produced to substantiate the allegation of malafides. Further, the petitioner has not established any link between the respondent No.5 and the owner of the medical store in whose interest the respondent No.5 is alleged to be acting. Further, except for joining respondent No.5 in his personal capacity, the petitioner has not joined any other person or authority in personal capacity as party respondent. It is not demonstrated as to how the official respondents were influenced into passing the order of transfer. No officer of the Government has been joined in personal capacity to answer the charges of malafide. In absence of necessary particulars and in absence of necessary parties to reply the charges of malafide, I am not inclined to entertain the petition on this ground also. In the decision of the Hon'ble Supreme Court in State of Bihar and anr. Vs. Shri P.P.Sharma and anr. reported in AIR 1991 SC 1260, the Hon'ble Supreme Court observed that it is a settled law that the person against whom malafides or bias was imputed should be impleaded as a party respondent to the proceedings and an opportunity to meet with those allegations is to be given and in his/her absence, no enquiry into those allegations can be made. It was observed that otherwise that itself is violative of the principles of natural justice as it amounts to condemning a person without giving opportunity. In the decision of of the Hon'ble Supreme Court in M. Sankaranarayanan, I.A.S Vs. State of Karnataka reported in 1993 SC 763, the Hon'ble Supreme Court observed that it may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of malafide from the facts pleaded and established. But such inference must be based on factual metrix and such factual metrix cannot remain in the realm of insinuation, surmise or conjecture. In the decision of the Supreme Court in State of U.P & ors. Vs. Gobardhan Lal reported in 2004 AIR SCW 2082, the Hon'ble Supreme Court observed that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or the Tribunals as though they are appellate authorities over such orders which could assess the niceties of the administrative needs and requirements of the situation concerned. It was further observed that the Courts and Tribunals cannot substitute their own decisions in the matter of transfer for that of the competent authorities of the State and even allegations of malafides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures and surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
6.In view of the above discussion, the general contention of the petitioner that petitioner is doing excellent work and that the village people had also called a successful bandh to protest against his transfer can be of no avail. It may also be noted that the petitioner has moved the present petition even without approaching the respondent with a representation voicing his grievance.
7.In the result, the petition fails and is hereby rejected.
(Akil Kureshi, J.) */Mohandas