Hon'ble Brijesh Kumar Srivastava-II,J.
(Delivered by Hon. B.K. Srivastava-II,J) The brief facts of the case are that in the year 2000, the petitioner was initially appointed on the post of Paid Platoon Commander in the Home Guards Department. In the year 2007, the petitioner was promoted on the post of Inspector-Home Guards and thereafter he was promoted on the post of District Commandant vide order dated 04.07.2013 and he was posted at district Barabanki where he joined on 01.08.2013. While posted as District Commandant, Home Guards, district Barabanki, petitioner has been transferred to district Balarampur vide order dated 19.06.2014 passed by Joint Secretary Home Guards and consequential order dated 19.06.2014 passed by Senior Staff Officer/ Senior Staff Officer to Commandant General Home Guards, being aggrieved from the impugned orders the petitioner has preferred the instant petition.
We have heard Sri Chandra Bhushan Pandey, learned Senior Advocate, assisted by Sri Awadhesh Mishra, learned counsel for petitioner, and Sri Zafaryab Zilani, learned Additional Advocated General, assisted by Sri Vivek Shukla, learned counsel appearing for State-respondents.
The submission of learned counsel for petitioner is that the petitioner has been transferred in anticipation against a non-vacant post. Further submission is that the petitioner has served only for a period of 10 months while being posted as District Commandant Home Guards, Barabanki and apparently there is nothing adverse against him. The transfer of petitioner has been done without assigning any cogent reason and in clear violation of the Government Transfer Policy dated 04.06.2014. The impugned transfer order has been passed by respondents on the basis of pick and choose policy and with mala fide intention, as in other districts, where additional charges have been given to the officers posted at other districts and hence there was no occasion for the authorities to disturb the present posting of the petitioner. It is also asserted that the impugned transfer order is violative of Article 14, 16 and 21 of the Constitution of India.
It is also the submission of the learned counsel for petitioner that the daughter of the petitioner is pursuing her study of M.A. at district Barabanki and has deposited the requisite fee for academic session 2014-15 and as such the transfer of the petitioner from district Barabanki to Balrampur as it would cause hardship to the petitioner to look-after his children from district Balrampur and also it is against the guidelines and transfer policy issued by the State Government and the order impugned cannot be sustained in the eyes of law.
Learned counsel for petitioner vehemently argued that it is clear cut case of malice in law and therefore malafide intentions can be presumed. It will appear from the perusal of the record that the main ground taken is that no reason whatsoever has been assigned while passing the impugned order which was subsequently modified also. Surprisingly, learned counsel for petitioner has himself taken a ground that the respondents have power to transfer an employee and post him at the place keeping in view the administrative exigencies. It has also been asserted in the grounds of writ petition that the impugned order suffers from malice in law.
In support of his submission, learned counsel for petitioner has cited two judgments passed by the coordinate Bench of this Court i.e. in Writ Petition No. 669 (SB) of 2013 wherein it has been observed that " Any transfer made without public interest or on administrative ground, prima facie will suffer from vice of arbitrariness" and in Writ-A No. 41098 of 2013 where it has been observed that" transfer is an incident of service and the court are extremely reluctant to interfere in transfer orders made in public interest or administrative exigencies. However, the courts do interfere in transfer matters where there is violation of statutory rule or in a case of malafide.
The contention of learned Additional Advocate General for State-respondents is that the transfer order dated 19.06.2014 is perfectly just and in accordance with law. He has further submitted that the transfer of the petitioner has been made in public interest and due to administrative exigencies, hence there is no necessity to assign any cogent reasons thereto. The order dated 19.06.2014 has been modified on 25.06.2014 by which the petitioner has been attached with the Headquarters at Lucknow and thereafter he has to join at District Balrampur.
In the enquiry report submitted by Divisional Commandant, the petitioner was also found responsible for having involved in the activities which is against the orders issued by the Headquarters and in this respect the petitioner has been given adverse entry in his records.
However, it has been contended by the learned counsel for the petitioner that the name of complainant is fictitious, on whose behest the said enquiry was initiated and secondly the order has been passed on account of pending enquiry and that too without issuing any show cause notice to the petitioner.
Before we advert to the submissions made by the learned counsel for petitioner, it will be necessary in the interest of justice to take note of the fact and law regarding the scope and ambit of interference in writ jurisdiction under Article 226 of the Constitution of India, while assailing an order of transfer.
The Hon'ble Apex Court in the case of E.P. Royappa V. State of Tamil Nadu [1974 (2) SCR 348] has observed as under:
"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous consideration or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of services but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law that good administration, that even administrative actions should be just and fair.
Further Hon'ble Apex Court in the above cited case has held regarding violation of Articles 14 and 16 of the Constitution of India, which reads as under:
"Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable a like to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and that is hit by Article 14 and 16. Malafide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the later comprehends the former. Both are inhibited by Article 14 and 16.
In the case of Varadha Rao Vs. State of Karnataka and Others [1986(4) SCC 131], the Court has made following proposition, which reads as under:
"transfer of a government servant who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service. No government servant can claim to remain in a particular place or in a particular post unless, his appointment itself is to a specified, non-transferable post. Therefore , a transfer order per se made in the exigencies of service does not result in alteration of any of the conditions of service, express or implied, to the disadvantage of the concerned government servant. However, a transfer order which is malafide and not made in public interest but made for collateral purposes, with oblique motives and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void."
In the matter of State of U.P. and Other Vs. Gobardhan Lal [AIR 2004 Supreme Court 2165], the Hon'ble the Apex Court has observed that, " A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunal as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Court or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the state and even allegations of mala fides 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 or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer"
The Hon'ble Apex Court in the case of Major General J.K. Bansal vs Union Of India And Others [AIR 2005 SC 3341] in paragraph nos. 9, 10 and 11 has held as under:
"9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: - "In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department.........."
10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under: - "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."
11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management."
Further in the matter of R.S. Garg Vs. State of U.P. [2006(6) SCC 430], the Hon'ble the Apex Court has observed as under:
" 'Malice' in its legal sense means malice such as may be assumed for a wrongful act done intentionally but without just cause or excuse or for one of reasonable or probable cause. The term 'malice of fact' would come within the purview of the said definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked." (para 26) In Ravi Yashwant Bhoir v. District Collector, Raigad, [AIR 2012 SC 1339],The Hon'ble the Apex court while dealing with the issue of 'Legal Malice' held:
"Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law." (Para-37) This Hon'ble Court in Writ Petition No. 36211 of 2013 [Const. Armourer Prakasha Nand Tiwari and two others Vs. State of U.P. and four others] in paragraph no. 25 has held as under:
"25. The oft quoted decision on this aspect is Director of School Education, Madras and others Vs. O. Karuppa Thevan and another, 1994 Supp.(2) SCC 666 but the said decision has been considered by a decision of Division Bench of this Court in Special Appeal No.1293 of 2005 (Gulzar Sing