Airport Authority Of India vs Rajiv Ratan Pandey & Ors

Rajeev Ratan Pandey & Ors. ...Respondents

JUDGEMENT

R.M. Lodha, J.

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

2 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

3 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 1 (2004) 11 SCC 402

4 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

2 (1997) 6 SCC 169

5 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.

........................J (Tarun Chatterjee)

........................J (R. M. Lodha)

New Delhi August 17, 2009.

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