2009 JTR(SC) 1455
2009 81 AIC 12 ; 2010 Supp AIR(SC) 322 ; 2010 AIR(SCW) 321 ; 2010 2 AllLJ 242 ; 2009 4 BBCJ(SC) 184 ; 2009 123 FLR 159 ; 2010 2 JLJR(SC) 188 ; 2009 10 JT 472 ; 2009 12 JT 434 ; 2009 4 LLN 130 ; 2009 LLR 1064 ; 2009 7 MLJ 127 ; 2010 2 MPWN 89 ; 2009 4 RSJ 438 ; 2009 11 Scale 549 ; 2009 8 SCC 337 ; 2010 1 SCC(L&S) 1084 ; 2009 13 SCR 343 ; 2009 4 SCT 151 ; 2009 8 SLR 555 ; 2009 4 UPLBEC 3169 ; 2009 KHC 4899 ; 2009 3 KLT(Online) 1130 ; 2009 6 Supreme 133
2009(6) Supreme 133
SUPREME COURT OF INDIA
Tarun Chatterjee and R. M. Lodha, JJ.
Airports Authority of India —Appellant
versus
Rajeev Ratan Pandey & Ors. — Respondents
Civil Appeal No. 5550 of 2009
(Arising out of SLP(C) No. 17128/2009)
Decided on : 17-08-2009
IMPORTANT POINT
In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing.
(A) The referenced acts sections are not explicitly indexed in this case. However, the principles governing transfer of government servants and the judicial review of such orders are derived from the statutory framework regulating service matters. The appeal challenges an ad-interim stay of a transfer order, invoking principles of administrative law and service regulations. The court examines the validity of the transfer under the alleged transfer policy and assesses the allegations of mala-fides, requiring strong and convincing material evidence to interfere with an administrative order.
(B) Key legal principles include: (i) Courts exercise limited scope of judicial review in transfer matters and do not substitute their decision for that of the administrative authority; (ii) Allegations of mala-fides must inspire confidence and cannot be based on conjectures; (iii) The burden of proving mala-fides is heavy and must be supported by convincing and cogent material; (iv) Interim stays against transfer orders are permissible only where strong grounds are shown; (v) Bureaucratic transfers must generally adhere to seniority and policy guidelines; (vi) Judicial interference is minimal unless there is a clear mala-fide or patent illegality.
Facts of the case:
Respondent No. 1, an engineering manager, was transferred from Lucknow to Calicut. He challenged the transfer on grounds of violation of transfer policy, including inter-regional transfer rules and seniority. He made a representation which was rejected. He did not join the new posting and subsequently filed a writ petition without initially alleging mala-fides. Later, he added allegations of mala-fides in a supplementary affidavit. The Division Bench stayed the transfer order on July 3, 2009.
Findings of Court:
The court found that the allegations of mala-fides were an afterthought, not raised in the original petition, and lacked supporting material. The court held that the transfer order did not suffer from strong mala-fides and that the High Court erred in staying the order. The court emphasized the limited scope of judicial review in transfer matters and the need for strong evidence to interfere.
Issues:
(i) Whether an ad-interim stay can be granted against a transfer order based on mala-fides raised for the first time in a supplementary affidavit; (ii) Whether the allegations of mala-fides are maintainable without supporting material; (iii) Whether the High Court had sufficient grounds to interfere with the transfer order under principles of judicial review; (iv) Whether the transfer violated the transfer policy and seniority norms.
Ratio Decidendi:
The court held that allegations of mala-fides must be raised in the original petition and supported by strong, convincing, and cogent material. The burden of proving mala-fides is heavy, and mere assertions or afterthoughts do not justify interference. The High Courts stay was set aside as it was not supported by material evidence and was based on an unsustainable plea.
Result:
The appeal is allowed. The impugned order dated July 3, 2009 is set aside. No order as to costs.
(A) The referenced acts sections are not explicitly indexed in this case. However, the principles governing transfer of government servants and the judicial review of such orders are derived from the statutory framework regulating service matters. The appeal challenges an ad-interim stay of a transfer order, invoking principles of administrative law and service regulations. The court examines the validity of the transfer under the alleged transfer policy and assesses the allegations of mala-fides, requiring strong and convincing material evidence to interfere with an administrative order.
(B) Key legal principles include: (i) Courts exercise limited scope of judicial review in transfer matters and do not substitute their decision for that of the administrative authority; (ii) Allegations of mala-fides must inspire confidence and cannot be based on conjectures; (iii) The burden of proving mala-fides is heavy and must be supported by convincing and cogent material; (iv) Interim stays against transfer orders are permissible only where strong grounds are shown; (v) Bureaucratic transfers must generally adhere to seniority and policy guidelines; (vi) Judicial interference is minimal unless there is a clear mala-fide or patent illegality.
Facts of the case:
Respondent No. 1, an engineering manager, was transferred from Lucknow to Calicut. He challenged the transfer on grounds of violation of transfer policy, including inter-regional transfer rules and seniority. He made a representation which was rejected. He did not join the new posting and subsequently filed a writ petition without initially alleging mala-fides. Later, he added allegations of mala-fides in a supplementary affidavit. The Division Bench stayed the transfer order on July 3, 2009.
Findings of Court:
The court found that the allegations of mala-fides were an afterthought, not raised in the original petition, and lacked supporting material. The court held that the transfer order did not suffer from strong mala-fides and that the High Court erred in staying the order. The court emphasized the limited scope of judicial review in transfer matters and the need for strong evidence to interfere.
Issues:
(i) Whether an ad-interim stay can be granted against a transfer order based on mala-fides raised for the first time in a supplementary affidavit; (ii) Whether the allegations of mala-fides are maintainable without supporting material; (iii) Whether the High Court had sufficient grounds to interfere with the transfer order under principles of judicial review; (iv) Whether the transfer violated the transfer policy and seniority norms.
Ratio Decidendi:
The court held that allegations of mala-fides must be raised in the original petition and supported by strong, convincing, and cogent material. The burden of proving mala-fides is heavy, and mere assertions or afterthoughts do not justify interference. The High Courts stay was set aside as it was not supported by material evidence and was based on an unsustainable plea.
Result:
The appeal is allowed. The impugned order dated July 3, 2009 is set aside. No order as to costs.
For the Appellant : Gopal Subramanium, S.G., Atul Nanda, Ms. Rameeza Hakeem, M/s Law Associates & Co., Acvocates.
For the Respondents:Shail Kr. Dwivedi, AAG, Anuvrat Sharma, Ms. Vandana Mishra, Ms. Alka Sinha, Advocates.
JUDGEMENT
R.M. Lodha, J.—
1. Leave granted.
2. This appeal by special leave is directed against an ad-interim Order dated July 3, 2009 whereby the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow stayed the operation of transfer order dated May 15, 2009.
3. Rajeev Ratan Pandey, Senior Manager, Engineering (Civil), Respondent No. 1, vide order dated May 15, 2009, came to be transferred from Lucknow (Northern region) to Calicut (Southern region) by the appellant. The Respondent No. 1 challenged the order of transfer by filing a writ petition before the High Court on the grounds, viz., that the order of transfer has been issued against the transfer policy inasmuch as it provides that the inter-regional transfers shall not be made before the incumbent completes at least five year tenure in that region; that the official shall not normally be transferred within region second time unless all others in that cadre have done one turn of out of region transfer; that except in cases where operational/administrative reasons warrant, transfers shall normally be avoided and transfer when made shall be in accordance with the seniority at the station in the region. He made a representation to the Competent Authority on May 25, 2009 for cancellation of his transfer. On May 28, 2009, the Respondent No. 1 was relieved from his posting at Lucknow. His representation came to be rejected by the Authority on June 2, 2009. In the writ petition initially no interim order of stay was granted. It transpires from the record that on June 9, 2009 he sent a letter to the Director, Airport Authority, Calicut that he was under medical treatment and the doctor has advised him some rest. He informed the said Authority that he would join duties at Calicut Airport as soon as he got well. He did not join his duties at Calicut Airport and on July 3, 2009 filed a supplementary affidavit before the High Court alleging therein for the first time that the transfer order was actuated with mala-fides. On that day itself, i.e., July 3, 2009, the Division Bench passed an ad-interim order staying the operation of the transfer order dated May 15, 2009.
4. Ordinarily, we would not have entertained a matter arising out of an ad-interim order but since it is founded on a plea which apparently is afterthought, we are constrained to interfere with the matter. In prima facie view of the Division Bench, the order of transfer suffers from strong mala-fides but the fact of the matter is that in the entire petition, there is not even whisper of mala-fides against the Authority. The writ petition was filed by the Respondent no. 1 on June 1, 2009 which contains no allegation that the transfer order has been issued maliciously. For the first time in a supplementary affidavit filed on July 3, 2009, the allegations of mala-fides have been made by the Respondent No. 1. Prima facie, we have no doubt that the allegations of mala-fides are afterthought. Moreover, except the bald statement in the supplementary affidavit, there is no convincing and cogent material placed by the Respondent No. 1 in proof thereof.
5. In the case of State of U.P. v. Gobardhan Lal1, while dealing with a matter of transfer, this Court observed that allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite (2004) 11 SCC 402 materials. In the present case, as noticed above, at the threshold, no allegations of mala-fides have been pleaded in the writ petition. It is only by way of a supplementary affidavit that allegations of mala-fides have been put forth by the Respondent No. 1 but even such allegations are not supported by any material whatsoever. In a matter such as the present one where plea of mala-fides is not made in the writ petition and the assertion of mala-fides is made for the first time in a supplementary affidavit which too is not supported by any convincing and cogent material, the plea of mala-fides hardly deserved acceptance, prima facie, justifying stay of operation of a transfer order. The High Court has referred to a decision of this Court in the case of Arvind Dattatraya Dhande v. State of Maharashtra & Ors.2 but in what we have said above, that decision cannot be applied to the facts of the present case. In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a (1997) 6 SCC 169 matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer. In the present case, High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant.
6. Appeal is, accordingly, allowed. The impugned order dated July 3, 2009 is set aside. No order as to costs.
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