ORDER
Rajendra Menon, J.
1. Challenging the order dated 20-2-2008 (Annexure P-l) passed by the State Government transferring the petitioner, who is working as Registrar, Awadhesh Pratap Singh Vishwavidyalaya, Rewa (hereinafter referred to 'APSV') in the same capacity to Dr. Hari Singh Gour Vishwavidyalaya, Sagar, petitioner has filed this petition.
2. Challenge to the order of transfer is made mainly on two grounds:- (a) Frequent transfer; and (b) Malafides attributed to respondent No. 4 and the role played by respondent No. 4 in getting the petitioner transferred from Rewa.
3. Petitioner was appointed as an Assistant Registrar after he was selected by the Public Service Commission, in the year 1986. He was promoted as Deputy Registrar in the year 1991 and thereafter as a Registrar in the year 2001. It is the case of the petitioner that he has an unblemished service record and, in the petition averments are made to indicate the exemplary service record of the petitioner. It is stated by the petitioner that the present order of transfer issued by the State Government on 20-2- 2008 vide Annexure P-l, amounts to frequent transfer of the petitioner from one place to another and to demonstrate the aforesaid fact, it is stated that vide order dated 8-7-2005 (Annexure P-2) petitioner was transferred from Sagar to Rewa. He remained in Rewa upto 16-5-2006, when vide order (Annexure P-3), he was transferred from Rewa to Indore. After working in Indore for two months, vide Annexure P-4, dated 31-7-2006, he was transferred as an Officer on Special Duty to the Higher Education Department at Bhopal. Even though petitioner transferred from Indore to Bhopal in the Higher Education Department, vide the above order dated 31-7-2006, the said transfer was challenged by the petitioner by filing Writ Petition No. 4871/2006 before the Indore Bench of this High Court and as an interim order was passed on 28-8-2006, the order was not given effect to and subsequently vide order dated 12-3-2007 (Annexure P-6), posting of the petitioner to Bhopal was modified and instead petitioner was posted at Rewa as Registrar. Petitioner continued to work at Rewa from 12-3-2007 onwards and now within less than an year, it is argued that he is transferred from Rewa to Sagar.
4. On the basis of the aforesaid fact the first ground urged by the petitioner is that the aforesaid action of the respondents in transferring the petitioner to various places on more than four occasions within a short period of less than three years amounts to frequent transfer and, therefore, the transfer is vitiated on the aforesaid ground.
5. Further contention of the petitioner is that after he was posted in Rewa in March, 2007, certain complaints were received against respondent No. 4 Dr. Ajay Kumar Awasthy, Professor in the Department of Environmental Science and for conducting an enquiry into the allegations levelled against the said respondent, petitioner was appointed as Enquiry Officer vide Annexure P-8, dated 17-8-2007. In furtherance to the appointment made and for conducting the enquiry, it is stated that petitioner issued notice to respondent No. 4 vide Annexure P-9 on 12-1-2008 and on various other dates directing him to file his reply to the charge-sheet, so that the enquiry can commence. It is the case of petitioner that respondent No. 4 is holding an important post of President of Swades Jagran and is an office bearer of RSS, a patron organization of the ruling party in the State of Madhya Pradesh, all the Ministers and bureaucrats are working in the State of Madhya Pradesh under the dictates of RSS and as respondent No. 4 is holding the post of President in such organization, using his influence and to somehow stall the enquiry being conducted by the petitioner, respondent No. 4 has managed to get the petitioner transferred. Accordingly, contending that transfer of the petitioner is at the instance of respondent No. 4, who was instrumental in getting the petitioner transferred because an enquiry was being conducted by the petitioner, malafides are attributed in the matter of transferring the petitioner and by contending that transfer at the instance of respondent No. 4 amounts to malafide exercise of power and is arbitrary, interference into the matter is sought for.
6. Shri Mrigendra Singh, learned Counsel for the petitioner, during the course of hearing, by referring to various documents available on record tried to emphasize that in the present case, the entire action against the petitioner is taken because of the influence of respondent No. 4, no administrative necessity is existing in the matter and the transfer being a colourable exercise of powers, warrants interference.
7. Respondents have refuted the aforesaid and the State Government by filing a detailed reply and documents has tried to point out that whenever and wherever the petitioner is posted, he has indulged in serious acts of commission and omission as a result enquiries are to be held against him on complaints received and he was transferred from one place to another only because of complaints. It is stated by the respondents that petitioner is a resident of District Rewa, his village is very near to Rewa and he has spent most of his career in APSV, at Rewa. Inter alia contending that transfer of the petitioner is because of some complaints and cases registered against him by the Lokayukt and is to facilitate enquiry into the matter, as enquiry by permitting the petitioner to work as Registrar in Rewa is not possible, State Government has tried to justify the action by stating that the transfer is on administrative consideration and the contention of the petitioner with regard to influence of respondent No. 4, in transferring the petitioner, is denied by the State Government. It is the case of the State Government that certain complaints were received against the petitioner, both by the Lokayukt and the Governor of the State, who happens to be Chancellor of the University, enquiry is to be conducted on the complaints received and to facilitate the said enquiry, transfer of the petitioner is necessary.
8. That apart, respondent No. 4 has filed a separate return and by filing various documents, has tried to indicate that he has no role to play in the transfer of the petitioner and it is stated that transfer of the petitioner is done by the State Government only because of complaints received against the petitioner. Respondent No. 4 has filed various documents and some of the documents are communications made by the Lokayukt Organization to the State Government and the University Authorities.
9. Respondent Nos. 2,3 and 5 have also filed separate returns and Shri Vibudhendra Mishra, learned Counsel representing respondent Nos. 2 and 3, has submitted that transfer of the petitioner is only to facilitate proper conduct of enquiry pending against him and as the State Government has issued an order on administrative consideration, it is stated that no case is made out for interference.
10. During the course of hearing Shri Mrigendra Singh, learned Counsel representing the petitioner, and Shri Pankaj Dubey, learned Counsel representing respondent No. 4, vehemently attacked and made serious allegations against each other.
11. Shri Mrigendra Singh, learned Counsel for the petitioner, questioned the bonafide of respondent No. 4 in contesting the matter by bringing on record various documents which normally cannot be obtained by respondent No. 4 and by taking me through the documents tried to indicate that respondent No. 4 was very much interested in the matter and it is at his instance that the transfer is being initiated. It was also argued by Shri Mrigendra Singh that the documents filed pertaining to complaints against the petitioner are all false and fabricated documents, produced alongwith the return only to justify the action before this Court. Shri Mrigendra Singh pointed out that some of the allegations levelled in the complaints pertain to the years 1999 and 2000, for which enquiry has already been held and petitioner is exonerated. By bringing on record one such enquiry report filed as Annexure RJ-1, Shri Mrigendra Singh emphasized that petitioner having been exonerated in this enquiry, no case is made out for transferring the petitioner on the basis of these complaints. That apart, it was submitted by him that the basis for transferring the petitioner, i.e., the communication received vide Annexure R-5, dated 4-3-2008 is not sufficient to justify the action. On the contrary this communication is made after the impugned order is passed on 20-2-2008 and, therefore, this document and the complaint enclosed therewith cannot form the basis for the transfer. That apart, referring to the complaints made by one Shri Anand Udaypure, the allegations contained therein, so also the complaint made by one Shri Balendra Kumar Shukla, Advocate of Rewa and a communication received by the petitioner from the said Shri Balendra Kumar Shukla, vide Annexure RJ-2, Shri Mrigendra Singh tried to emphasize that the complaint filed by Shri Balendra Kumar Shukla has been withdrawn and as there is no complaint against the petitioner and even if the complaints are there, they being false and frivolous and an afterthought, only to harass the petitioner, cannot form the basis for transferring the petitioner. Attributing mala fides particularly on respondent No. 4 and indicating the influence played by him, petitioner seeks interference into the matter.
12. It is further stated by Shri Mrigendra Singh that petitioner has specifically averred in this petition that respondent No. 4 is holding the post of President, Swades Jagran, and is the office bearer of the RSS, which fact is not specifically denied by respondent No. 4 and, therefore, this has to be accepted and interference drawn, in absence of specific denial to the averments made by the petitioner in Para 6.1 of the petition against respondent No. 4.
13. Shri Pankaj Dubey, learned Counsel for respondent No. 4, submits that respondent No. 4 has denied his role in the matter and by filing a separate application, I.A. No. 5622/2008, has tried to indicate to this Court that petitioner has made false averments in this petition particular in Para 5.6, has used fabricated documents and, therefore, action under Section 340, Cr.PC should be taken against him. Shri Pankaj Dubey also refutes the contentions raised in this petitions and submits that respondent No. 4 has nothing to do in the matter of transfer of the petitioner.
14. By placing reliance on the law laid down by the Supreme Court in the case of N.K. Singh v. Union of India : (1995)ILLJ854SC , Shri Vibudhendra Mishra, learned Counsel for respondent Nos. 2 and 3, has prayed for dismissal of this petition.
15. I have heard learned Counsel for the parties at length and perused the record. From the submissions made and on the basis of material available on record, it is seen that transfer in question is challenged mainly on two grounds : the first pertains to frequent transfer; and the second malafides attributed to respondent No. 4 and the role played by him in getting the petitioner transferred.
16. As far as frequent transfer is concerned, it is seen from the records and in particular from the enquiry report (Annexure RJ-1) filed by the petitioner, that because of some complaint received against the petitioner one Professor (Smt.) Ramesh Rani Mathur was appointed as Enquiry Officer and the said officer conducted an enquiry into the allegations levelled against the petitioner and submitted her report on 28-9-99, vide, Annexure RJ-1, filed by the petitioner alongwith his rejoinder. Even though allegations in this enquiry are found not to be established, but in the said enquiry report certain factual aspects with regard to posting of the petitioner at Rewa, after his appointment on 10-1-1986 is indicated. It is indicated in this report that after his appointment on 10-1-1986 and upto the date of submission of the report on 28-9-99, out of the total period of 13 years, petitioner has been at Rewa for more than 10 years. It is indicated in this report that out of 13 years of service except for a short period of 2 years and 8 months, petitioner has continued to remain at Rewa. Thereafter, records indicated that on 8-7-2005, petitioner was transferred from Sagar to Rewa. While working in Rewa, it is the case of the respondents that some complaints were received against him and, therefore, he was transferred to Indore. While working in Indore again complaints were received against him and, therefore, he was transferred to Bhopal on 31-7-2006 vide Annexure P-4. This order was never implemented, but it was cancelled and vide Annexure P-6, dated 12-3-2007, petitioner again came back to Rewa. If these facts are analysed, it would be seen that petitioner after 8-7-2005 was only transferred once to Indore, where he remained for only 10 months and even though on the basis of the complaints received, he was transferred to the Higher Education Department, but the said order was not enforced, instead vide Annexure P-6, dated 12-3-2007, the order was modified and petitioner was again brought back to Rewa. Transfer of the petitioner on 16-5-2006 from Rewa to Indore and the fact of his working in Indore for only 10 months and thereafter coming back to Rewa after 10 months shows that petitioner was always managing his transfer to Rewa. It is a case where petitioner has been transferred to various places on complaints received, he was shifted, but for the reasons which remains unexplained petitioner managed to come back to Rewa every time and in fact has spent most of his career in one University at Rewa. Considering the aforesaid factual aspect of the matter, which is apparent from the face of record, this Court is unable to hold that the case in hand is one of frequent transfer. On the contrary records indicate that for most of the period during his entire service career petitioner has managed to remain at Rewa and even if he has been transferred to some other University, serious complaints have been received against him and the transfer orders are mostly issued because of the complaints received against the petitioner.
17. Analyzing the entire service career of the petitioner and the various places where petitioner was transferred, as indicated hereinabove, and on considering the fact that petitioner had spent most of his career in Rewa, this Court does not find any merit in the first ground urged with regard to transfer of the petitioner being a case of frequent transfers. Accordingly, the first ground canvassed by Shri Mrigendra Singh, learned Counsel for the petitioner, being devoid of merits and substance is accordingly rejected.
18. As far as the second ground is concerned, petitioner attributes malafide and contends that transfer order is passed by the State Government because of the influence, which respondent No. 4 has in the working of the State Government. A statement is made to this effect merely on the basis of some post said to have been held by respondent No. 4 in some organisation, which is said to be the patron organization of a particular ruling party that is in power in the State of Madhya Pradesh. Except for making the aforesaid allegation, the material available on record are not sufficient to record a positive finding with regard to the allegations made in connection with the influence of respondent No. 4 in the matter of transferring the petitioner.
19. Merely because petitioner is appointed as an Enquiry Officer and respondent No, 4 is facing the enquiry, a conclusion positive in nature cannot be drawn to hold that the contention of the petitioner is right. The aforesaid allegations of the petitioner has to be evaluated in the light of the facts that have been brought on record by the State Government. If the allegations made by the petitioner against respondent No. 4 and the counter-allegations made by respondent No. 4 against the petitioner are ignored, the material available on record if analysed on the basis of all the contentions raised by the State Government are enough to hold that there are serious complaints against the petitioner with regard to his working in Rewa and at the instance of Lokayukt and the Chancellor of the University enquiries are contemplated against the petitioner. If this aspect of the matter is taken into consideration and the reasons given by the State Government for transferring the petitioner is considered, then this Court does not see any reason to hold that the transfer amounts to colourable exercise of power or is arbitrary in nature. From the return filed by respondent No. 1 State Government, it is seen that throughout his service career allegations have been levelled against the petitioner and at various levels enquiries have been conducted against him. Even though some of the allegations, pertain to the period 1997,1999 and 2000, but available on record are Annexure R-3, a compliant submitted by one Shri Balendra Kumar Shukla, Advocate; Annexure R-5, a communicated dated 4-3-2008 issued from the office of Lokayukt, Madhya Pradesh; and further communications submitted by respondent No. 4 with regard to enquiry initiated by the Lokayukt Organization as contained in Annexure R-4-1, dated 19-2-2008 and Annexure R-4-2, dated 14-1-2008. Similarly, Annexure R-4-3 is a complaint submitted by certain persons on 26-12-2007, wherein allegations are made and Lokayukt Organisation has registered a case.
20. Even though Shri Balendra Kumar Shukla, Advocate by submitting a letter to the petitioner has tried to point out that he has no complaint against the petitioner, but the communication received by the State Government from the Office of Governor indicates that the University has been directed to conduct an enquiry into the working of the petitioner and the allegations levelled against him. Thereafter, complaints have been received against the petitioner on 9-1-2008 by the Office of Lokayukt and the Lokayukt, Madhya Pradesh has made communication to the University and it is seen that cases have been registered against the petitioner and the Lokayukt Organization has called for various documents from the University to facilitate enquiry into the matter.
21. Merely because one such communication made by the Office of Lokayukt vide Annexure R-5 on 4-3-2008 is after the transfer of the petitioner, that cannot be a ground to hold that no enquiry was pending against the petitioner before the order of transfer was passed on 20-2-2008. The communication Annexure R-5, even though made on 4-3-2008, indicates that the complaints were received against the petitioner on 9-1-2008 and the Office of Lokayukt had been in constant touch with the State Government and the Accounts Officer of the University right from January 2008, asking for various documents to conduct an enquiry and a case bearing No. 219/2007 has been registered against the petitioner. It is seen that Case No. 219/2007 is registered in the Office of Lokayukt with regard to various irregularities in the University concerned and petitioner is also figuring in the complaints made.
22. Similarly, the complaints submitted to the Lokayukt on 5-1 -2008 on the basis of which communication was made on 4-3-2008 vide Annexure R-5, indicates that these complaints pertain to working of Shri Parikshit Singh Chouhan, Registrar of APSV, Rewa and there can be no doubt that the person against whom these complaints are made is the petitioner, and no one else. A complete scrutiny of the documents available on record indicates that there are serious allegations against the petitioner and complaints are made by various persons pertaining to working of the petitioner as Registrar in APSV, Rewa. These complaints may be right, the allegations may be true or they may be false. At this state, in this writ petition, this Court is not required to evaluate these complaints on merit and take a decision with regard to the complaints being false, frivolous or otherwise. This Court is only required to evaluate as to whether on the basis of these complaints State Government was justified in taking action of transferring the petitioner or the transfer is vitiated being tainted with malafides attributable to respondent No. 4 and the influence made by him in getting the petitioner transferred.
23. As already indicated hereinabove except for making the allegations with regard to respondent No. 4, petitioner has not produced any cogent material so as to record a positive finding to uphold the contention of the petitioner. On the contrary available on record are various complaints and communications made particularly by the Lokayukt Organization and the Office of Governor, who is Chancellor of the University to indicate that enquiries are contemplated against the petitioner and to facilitate a proper enquiry, it was decided by the State Government to transfer the petitioner.
24. When the allegation of malafides are made and when the prayer is to interfere with a particular action of the State Government on the ground of malafides, the allegations of malafide have to be established and proved to such an extent that this Court can record a positive finding to the effect that mala fides as pleaded are established in the given set of circumstances. In the present case, if the allegation of malafides are analysed in the backdrop of the principles laid down for holding malafides to be established, it would be seen that the grounds raised in this petition are not such on the basis of which it can be said that the grounds of malafide raised are found to be correct. In fact on the basis of the material available on record, this Court can only record a finding that petitioner has made serious allegations of malafide, but has not adduced cogent material to hold the malafides to be established.
25. The legal meaning of 'malice' and the grounds for holding an action of the State to be malafide is considered by the Supreme Court in the case of State of A.P. and Ors. v. Goverdhanlal Pitti : [2003]2SCR908 . In the said case, malafides were attributed to the State in the matter of acquiring of land. The question of malafides is considered by the Supreme Court in Paras 12,13 and 14, in the following manner:
(12) The legal meaning of malice is 'ill-will' or spite towards a party and any indirect or improper motive in taking an action. This is sometimes described as 'malice in fact'. 'Legal malice' or 'malice in law' means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others (See : Words and Phrases legally defined in Third Edition. London Butterworths 1989).
(13) Where malice is attributed to the State, it can never be a ease of personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in its authoritative work on Administrative Law (Eighth Edition at Page 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described malafide if it seek to 'acquire land' 'for a purpose not authorised by the Act'. The State, if it wishes to acquire land, should exercise its power bonafide for the statutory purpose and for none other'.
(14) The legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bonafide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings.
26. If the case in hand and the malafides attributed particularly to respondent No. 4 and his influencing the action of the State is analysed, it would be seen that petitioner has failed to prove as to how respondent No. 4 has influenced the decision making process of the State Government. On the contrary, the State has established its bonafide in transferring the petitioner by pointing out that enquiries are contemplated against the petitioner and, therefore, his continuation in Rewa is not conducive for conducting the enquiry.
27. Transfer of an employee to facilitate enquiry or disciplinary action is held by the Supreme Court to be a proper exercise of power warranting no interference in a petition under Article 226 of the Constitution. The aforesaid principle is laid down in the case of State of U.P. and Anr. v. Siya Ram and Anr. : AIR2004SC4121 .
28. Scope of judicial review into an order of transfer and the principles governing interference by exercising discretionary jurisdiction under Article 226 of the Constitution has been considered by the Supreme Court in the case of Mohd. Masood Ahmad v. State of U.P. and Ors. : (2007)8SCC150 . In the aforesaid case, after considering various judgments on the question and in Para 7 of the aforesaid judgment, the principle is so laid down by the Supreme Court:
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India (8), National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (9), Stale Bank of India v. Anjan Sanyal (10). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. (11) and OnkarNath Tiwari v. Chief Engineer Minor litigation Department (12), it has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the order were not competent to pass the orders.
From the aforesaid principles laid down by the Supreme Court in various cases, it is clear that an order of transfer can be interfered with by this Court only if malafides are established or if the transfer is found to be contrary to statutory provisions or provisions having the force of law. In the present case, no statutory provisions, rule or regulation is alleged to be violated in transferring the petitioner. The only allegation is with regard to malafides of respondent No. 4 and his influence in getting the petitioner transferred. This Court has already analysed the material available on record and it is found that even though allegations of malafide are made against respondent No. 4, but the material available on record are not enough to hold the said malafides arc established. Vague allegations of malafide cannot be a ground for interfering with an order of transfer.
29. When the allegations levelled by the petitioner of malafides are analysed in comparison to the submission made by the State Government with regard to complaints received against the petitioner and the fact that enquiry is contemplated to be held against these allegations, this Court has to hold that the administrative exigency to exists in the present case and there is nothing to hold that the transfer of the petitioner is because of malafides attributed to respondent No. 4. On the contrary, the material available on record makes out a case of administrative exigency being available for transferring the petitioner and as the State Government, respondent No. 1, has taken the action after evaluating the aforesaid administrative exigency in the absence of malafides being proved to the extent required for interference, no case is made out for granting any relief to the petitioner.
30. As the case in hand is a case of transfer of an employee from one place to another on complaints received to facilitate enquiry, that being the factual position, this Court does not find any merit in the claim made by the petitioner warranting interference.
31. During the course of hearing it was stated by the petitioner that in the light of status quo granted by this Court, petitioner has worked in Rewa and is, therefore, entitled to salary due for various periods.
32. Respondents have refuted the aforesaid and it is stated by them that petitioner was relieved even before the order of status quo was passed and, therefore, he is not entitled to salary. This is a disputed question of fact, accordingly it is directed that with regard to the working of the petitioner and his claim for salary, petitioner may represent the matter to the State Government and the State Government shall conduct an enquiry with regard to the working of the petitioner or otherwise, shall pass appropriate orders with regard to payment of salary and the order so passed by the State Government shall be complied with by the University.
33. Even though during the course of hearing serious allegations were levelled by the petitioner against respondent No. 4 and respondent No. 4 had also made serious counter-allegations against the petitioner and sought for taking action under Section 340, Cr.PC, but considering the facts and circumstances of the case, this Court is of the considered view that for deciding the present petition it is not necessary for this Court to consider all these factors. The question of transfer of the petitioner and its validity has been decided by this Court without entering into the above controversy and, therefore, this Court does not deem it proper to make any comment or take any action in this regard.
34. Accordingly, for the reasons indicated hereinabove, petition stands dismissed without any order so as to costs.