Dinesh Malaviya vs. The State Of Bihar& Ors.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.21088 of 2011

1. Dinesh Malaviya S/O Late Dr. J.P. Malaviya Resident Of 'Lal Kothi' Road No. 36, Chitkohra, P.O.-Anisabad, P.S.-Gardanibagh, Patna Presently Posted As Executive Officer, Nagar Parishad, Narkatiyaganj, Distt.-West Champaran.

Versus

1. The State Of Bihar Through Chief Secretary, Old Secretariat, P.S.- Sachivalaye, Distt.-Patna.

2. Principal Secretary, Department Of Urban Development, Govt. Of Bihar, Vikas Bhawan, Bailey Road, P.S.-Shastri Nagar, Patna. 3. Principal Secretary, Department Of Central Administration, Govt. Of Bihar, Old Secretariat, P.S.-Sachivalaya, Dist.-Patna.

3. 13.12.2011 Heard learned Counsel for the petitioner and the State.

The petitioner, an Executive Officer at the Nagar Parishad, Narkatiaganj, is aggrieved by his order of transfer dated 8.11.2011 directing him to join as Senior Deputy Collector at Supaul.

Assailing the impugned order it is submitted that in between the period 8.4.2010 to 8.11.2011 the present is the fourth order of transfer. The petitioner had joined at Narkatiaganj as recently as 2.6.2011 and there is no justification for his transfer at such extremely short duration. It is further submitted that the transfer is in fact mala fide and punitive in nature relying upon (2009) 2 SCC 592 (Somesh Tiwary v. Union of India & ors) more particularly paragraph 16 of the same.

The respondents have filed a counter affidavit, Paragraph 5 of the same states that the petitioner was an accused in Vigilance PS Case no. 48 of 2011 dated 29.7.2011 registered under the Prevention of Corruption Act and for which sanction for prosecution had also been granted on 27.10.2011. It was therefore administratively considered necessary to transfer him.

Transfer is a normal incidence of service. Repeated transfers have been frowned upon unless there be exceptional circumstances or

exigency for the same. Any transfer prior to 2.6.2011 is of no relevance as the petitioner never questioned the same. No violation of any statutory rules has been alleged to assail the impugned order. Malafide is a question of fact to be determined on facts and circumstances of each case and there can be no broad generalization.

In Somesh Tiwary (Supra) the appellant had reopened the file of certain assesses for reassessment. Anonymous complaints were made which on internal enquiry by the Director of Vigilance were found to be not true, notwithstanding which recommendation for transfer was still made. It was in that factual background that the finding of malice in-law came to be arrived in para 16 relied upon on behalf of the petitioner.

If there was a vigilance case under the Prevention of Corruption Act registered against the petitioner while performing duties at Narkatiaganj, surely the respondents cannot be denied the right of administrative reassessment to decide on his continuance there. This administrative reassessment has nothing to do with his culpability or innocence in the vigilance case to be proved in accordance with law. If it were otherwise to be held that unless and until he is not held guilty in the vigilance case no order for transfer can be passed on administrative ground, running the administrative and administrative flexibility required by the administrator may be set at naught by the Court causing undue interference with the administration.

In 2005) 4 SCC 245 (Union of India & ors v Janardhan Debanath & another) the order of transfer was challenged as punitive in view of certain past events which can be noticed at paragraph 4 of the judgment. Making a distinction between the assessment of the ground for the purpose of transfer and supporting the issue of culpability to be determined in the departmental enquiry the Supreme

Court held at paragraph 14 as follows:-

"14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs."

The writ petition was filed on 21.11.2011. The vigilance case was lodged on 29.7.2011. The least that was expected of the petitioner was to be fair and place all necessary and relevant materials before the Court and then challenge his order of transfer on the ground that he perceived illegality. The Court could have dismissed the writ petition on grounds of suppression of a material and relevant fact having a direct nexus to the order of transfer.

There is no reason to interfere with the impugned order dated 8.11.2011.

The writ application is dismissed.

Snkumar/- (Navin Sinha,J.)