ORDER
G. Sivarajan, J. (Vice Chairman)
1. Sri Mahesh Joshi, Senior Director, Doordarshan Kendra, Bangalore has filed this O.A. challenging Office Order No. 149/2006-PPC dated 2.11.2006 (Annexure-A8) issued by the 2nd respondent transferring him from DDK, Bangalore to DDK, Chennai with immediate effect on the ground that it is passed in violation of the transfer policy, without bona fides for extraneous reasons, arbitrary and illegal.
2. The applicant was appointed as Assistant Station Director, a Group-A Gazetted post under the Union of India; he joined Doordarshan Kendra, Bangalore in that capacity on 14.12.1990 after his selection through Union Public Service Commission; he was promoted to Senior Time Scale in the pay scale of Rs. 10,000-15,200 in the year 1995 and was posted as Station Director, Doordarshan Kendra, Panaji. He was subsequently posted as Station Director, Doordarshan Kendra, Gulbarga in the year 1999; he was subsequently promoted to the Junior Administrative Grade in the pay scale of Rs. 12,000-16,500 and was posted as Director (Marketing) AIR and Doordarshan, Bangalore in the year 2003 and was posted to the present post of Director, Doordarshan Kendra, Bangalore on 5.1.2005. It is also stated that on successful completion of 14 years of regular service in Group-A the applicant has been promoted to the selection grade in the pay scale of Rs. 14,300-18,300 with effect from 1.4.2005. The applicant has been awarded with Rajyotsava Award by the State of Karnataka on the Golden Jubilee Celebrations on 1.11.2006, which is highly appreciated by the 2nd respondent in his letter dated 31.10.2006. He was also in-charge of covering Golden Jubilee function of the Hon’ble High Court of Karnataka which programme is stated to be held on 4.11.2006.
3. The 5th respondent who is a Deputy Director, Doordarshan Kendra, Kolkata had sent a complaint dated 25.7.2005 (Annexure-A1) against the applicant to the 2nd respondent seeking to shift the applicant from Bangalore and for other reliefs. The said complaint was forwarded to the applicant for his comment. The applicant had offered his comment by communication dated 2.8.2006 (Annexure-A3). Subsequently, the 6th respondent who is a Member of Parliament from Karnataka had sent a letter dated 21.8.2006 (Annexure-A4) addressed to Sri P.R. Das Munshi, Hon’ble Minister for Information and Broadcasting, Government of India, New Delhi enclosing story of the applicant and requesting for shifting the applicant immediately. This complaint was also forwarded to the 7th respondent and another on 19.09.2006 (Annexure-R2) to obtain the comments. This was followed by communication dated 18.10.2006 (Annexure-R3) by way of. reminder and a further communication dated 20.10.2006 (Annexure-A5) was also issued stating that the comments in the matter are still awaited. It was also stated that as the matter relates to VIP reference andMinistry of I & B is pressing hard for furnishing thecomments, it is once again requested that the same be sent to the Directorate without further delay. This was followed by another communication dated 31.10.2006 (Annexure-A6) wherein it is stated that the Director, Doordardshan Kendra, Bangalore may please refer to his letter dated 25.10.2006 regarding VVIP reference received from MIB through Prasar Bharati, that any reference that comes from MIB needs to be answered comprehensively with supporting documents, if any for consideration before a reply.is sent to the VVIP by the Hon’ble Minister. It is stated that this may be given top priority since reminders have come on the issue. The applicant had sent his reply also by communication dated 31.10.2006 (Annexure-A7) It is at this juncture the applicant has received the impugned transfer order dated 2.11.2006. The transfer order reads thus:
No.A-10/10/2006-PPC Dated 2.11.2006
Office Order No. 149/2006-PPC
The following transfers/postings in AIR and Doordarshan have been decided with immediate effect:
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Sl. No Name From To Remarks
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1 Shri Mahesh DDK, DDK, Shri Mahesh Joshi,
Joshi, Director, Bangalore Chennai Director, DDK,
DDK, Bangalore Bangalore stands
transferred as Director
DDK, Chennai vice
Shri T.S. Gangan on
leave.
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2. Shri N.G. Srinivasa, DDG (SR), Bangalore shall take over additional charge of Director, DDK, Bangalore w.e.f. 2-11-2006 without fail.
3. This issues with the approval of the Chief Executive Officer, Prasar Bharati.
4. It is the contention of the applicant that the impugned order is passed as a punitive measure based on the complaints received from 5th and 6th respondents and that too under pressure from the said respondents on the Ministry. In other words, it is the contention of the applicant that the impugned order has been issued without any bona fide, in a mala fide manner at the instance of political leader, the 6th respondent. It is also the contention of the applicant that the said order has been issued in violation of the guidelines for transfer of officers of the 2nd respondent-organisation without any application of mind. It is the further contention of the applicant that no public interest or administrative exigency existed to bye-pass the guidelines in the matter of transfer and that the 2nd respondent due to pressure on the Ministry from the 6th respondent has issued the impugned order in an arbitrary and high handed manner. The applicant has also produced copies of the complaint made by the 5th and the 6th respondents and the communications issued by the 7th respondent seeking for the comments of the applicant on those complaints.
5. The 6th respondent has filed a reply in which he has not specifically denied the complaint (Annexure-A4) submitted to the Minister for Information and Broadcasting. He had only stated that the 6th respondent is the public person and having social and moral obligations to find out the injustice and disorder even in the public administration as well as having responsibility to prevent the disorder and mismanagement in the public administration. It is also stated that the 6th respondent has received several complaints against the applicant from the public regarding the manner of functioning of the applicant and that as per available documents and information the 6th respondent has discharged his official obligation and noticed about concerned authorities to take appropriate legal action with an intention to bring the good atmosphere in the department as well as development of the institution. It is further stated that drawing the notice of the higher authorities as well as making necessary complaint before the concerned authorities to prevent the unlawful and illegal acts of the public servant will not amount to mala fide and the 6th respondent has also a legal obligation to prevent unlawful and illegal acts of any such public servant as a Member of Parliament and as a citizen. He has further stated that the impugned order of transfer is valid and there is no mala fide and that it is also very much required to avoid his present involvement in the course of investigation in the department. Various averments touching the allegations made against the applicant are also stated. Finally it is stated that if the stay order is continued it is difficult to protect public interest as well as difficult in the further investigation of the department impartially to act on the complaints in accordance with law. The 5th respondent has also filed a reply in which he had admitted the complaint (Annexure-A1) against the applicant. He had also made averments justifying the impugned order.
6. On behalf of respondents 1 to 4 and 7, the 7th respondent has filed reply. In the said reply it is stated that the impugned order of transfer was issued in public interest keeping in view the requirement of the services of the applicant at the place of transfer i.e., Chennai, that the transfer is neither mala fide nor is it motivated as has been wrongly alleged by the applicant and that the transfer has not been made for any extraneous reasons or at the behest of anybody. It is further averred that it is settled law that a transfer is a normal incidence of service and a transfer made on account of administrative exigencies is not to be interdicted. It is also stated that the transfer of the applicant from Bangalore to Chennai was neither on account of any complaint submitted by respondent No. 6 against the applicant nor was it on account of any reference made by the Ministry of Information and Broadcasting and that the transfer of the applicant was part of a chain of transfers, each of which was ordered on administrative grounds. The circumstances under which the transfer has been effected is stated in Paragraph 3 of the reply statement as follows:
3. The Director of Doordarshan Kendra, Chennai was one Shri T.S. Gagan. He suffered a massive heart attack and went on long leave. Thereafter, he underwent angioplasty and in view of his medical condition he was advised not to undertake arduous duties or to travel. As such he could not resume his duties as Director, Doordarshan Kendra, Chennai. The Director of Doordarshan Kendra, Mumbai was one Sri Mukesh Sharma, who had been holding the said post since 2000. On certain administrative grounds as well as in view of the fact that Shri Mukesh Sharma had served Doordarshan Kendra, Mumbai for more than the normal tenure, it was considered desirable to shift him to another station. In view of these circumstances, on 1.11.2006 a decision was taken to transfer the applicant from Doordarshan Kendra Bangalore to Dordarshan Kendra, Chennai and to transfer Sri Mukesh Sharma from Doordarshan Kendra, Mumbai to Dordarshan Kendra, Bangalore. It is submitted that Doordarshan Kendra, Chennai is a major Kendra and, therefore, it was deemed expedient to post a person of the seniority of the applicant. Formal orders in this regard were issued on 2.11.2006. A copy of the order dated 2.11.2006 transferring Shri Mukesh Sharma, is produced herewith as Annexure-R1. It is submitted that the above transfers were solely on account of administrative exigencies and were not actuated by any other consideration.
7. It is also stated that out of his service of 16 years, more than 13 years have been spent by the applicant at or around Bangalore on one post or the other, that the applicant cannot claim an indefeasible right to serve only at one State, that transfer being a normal incidence of service and the applicant having spent a major part of his service at Bangalore cannot grudge his transfer to another station. It is also stated that the applicant was transferred to a major station in the South Zone and was not transferred to a far off place, that the applicant belongs to a cadre which has an all India transfer liability including mandatory transfer to a category ‘C’ station i.e., a hard posting like a North East Station etc., generally for two years. It is asserted that the decision to transfer the applicant has been taken independently by respondent No. 2 on account of administrative exigencies and not at the instance of any person or the Minister nor does the transfer has any linkage with any complaint against the applicant whether submitted by respondent No. 5 or 6 or any other person. It is further stated that a complaint was submitted by respondent No. 6 against the applicant way back in August 2006, that the said complaint was forwarded by the Ministry of Information and Broadcasting to Doordarshan for comments, that the applicant submitted a reply dated 25.10.2006 to the 7th respondent, that by a letter dated 31.10.2006 the 7th respondent forwarded complete copy of the complaint sent by respondent No. 6 to the applicant and requested him to furnish a detailed reply and that the applicant had forwarded a reply dated 16.11.2006 and that the reply given by the applicant to the complaint is under consideration before the Competent Authority. It is reiterated that the transfer of the applicant was purely on administrative ground and in public interest. The allegations of mala fide and extraneous considerations, it is stated, are clearly incorrect. Regarding involvement of the applicant in the Golden Jubilee celebrations of the Karnataka High Court, it stated that the applicant is not the only person who was involved in the entire exercise and that at any rate the said programme has also come to an end and that cannot be a ground for not transferring the applicant. Various other allegations made against the official respondents are also denied. The official respondents have also produced various documents in support of their stand.
8. The applicant has filed a rejoinder. Along with the said rejoinder the applicant has produced various transfer orders issued by the official respondents from 2004 (Annexures-A9 and A10). The applicant has also produced certain documents to show that other Station Directors were also seeking for a transfer to Chennai (Annexures-A1 1 and A12). The applicant has also produced certain documents to show that the 5th respondent is in the agreed list and that directions were issued not to post the 5th respondent in any sensitive portfolio (Annexures-A14 and A15). The applicant has also produced certain commendation issued by the 6th respondent while he was a Minister of Textile of the Government of India and a communication dated 31.10.2006 (Annexure-A19) issued by the 2nd respondent congratulating the applicant on getting prestigious Karnataka Rajyotsava Award. The applicant reiterated that his transfer from DDK, Bangalore to Chennai was issued in violation of the transfer policy, on extraneous reasons, in an arbitrary and illegal manner.
9. An interim stay order was passed on 3.11.2006 as follows:
…Mr. N.G. Phadke, learned Counsel for the applicant submits that the applicant has completed only one year and six months at Bangalore and that he has been transferred without any reasonable cause to Chennai particularly at a time when he was concentrating on the Golden Jubilee Celebration of the Karnataka High Court, the last day function is fixed to 4.11.2006. Counsel submits that if the transfer is effected as ordered, it will certainly cause serious dislocation in the matter of attending to the work of Golden Jubilee Celebration of the Karnataka High Court. The Counsel also submits that the transfer is effected only at the instance of the fifth and sixth respondents in a mala fide manner. He also submitted that there is nothing in the impugned order to show that the transfer was effected in public interest or for meeting any urgent situation in Chennai. He also submitted that the Golden Jubilee Celebration of the Karnataka High Court is going on for which the participation of the Doordarshan is absolutely required.
Having considered the matter we are of the view that the matter requires consideration. Accordingly issue urgent notice to the respondents to show cause as to why this application shall not be admitted. Reply within 4 weeks rejoinder if any within 2 weeks thereafter.
Since nobody has been posted as Director in the place of the applicant and since only a direction was issued to the DDG (SR), Bangalore to take charge there will be an interim stay of Annexure-A8 for a period of one month. However, the official respondents are free, if they are so advised, to move for vacating the interim order in the meanwhile after filing the reply. Post on 1.12.2006.
10. Mr. N.G. Phadke, learned Counsel appearing for the applicant submitted that the applicant was holding the post of Director, DDK, Bangalore only from 5.1.2005 and that he had completed only one year 10 months in the post whereas as per the transfer policy the applicant is entitled to continue in the same station for 4 years and that the transfer is made in violation of the transfer policy. Counsel also submitted that during his tenure under the 2nd respondent the applicant had worked in Panaji, Goa 570 kms. away during 1995-97 and DDK, Gulbarga 657 kms. away during 1999-2003. The Counsel also submitted that even according to the respondents the incumbent of the post of Station Director at Chennai was only on leave and that at any rate if a Station Director is required to be posted at Chennai Mr. Mukesh Sharma, DDK, Mumbai who had completed the normal tenure at Mumbai was available for being posted at Chennai and, therefore, there was no need for the 2nd respondent to transfer the applicant who had not completed the tenure from Bangalore to Chennai. The Counsel further submitted that the applicant is a very sincere officer who had been awarded with ‘Rajyotsava Award’ by the State of Karnataka on the Golden Jubilee Celebration on 1.11.2006 and that the 2nd respondent himself had sent an appreciation letter dated 31.10.2006 stating that “it is high water mark not only for the Kendra Director Dr. Mahesh Joshi but more so for the entire family of Doordarshan Chandana”. Counsel further submitted that the transfer of the applicant from DDK, Bangalore to DDK, Chennai is only as a result of the complaint made by the 6th respondent to the Minister for Information and Broadcasting wherein the 6th respondent had specifically requested the Minister to shift the applicant from Bangalore immediately. The Counsel in short submitted that the transfer of the applicant is in violation of the guidelines, without any bona fide for extraneous reasons and not for administrative reasons or public interest. The Counsel has also relied on the decisions of the Supreme Court and various High Courts in support.
11. Mr. V.T. Gopalan, learned Additional Solicitor General assisted by Mr. S. Prakash Shetty and Mr. Rajiv Sharma, Standing Counsel for respondents 1 to 4 and 7 on the other hand submitted that the transfer of the applicant from Bangalore to Chennai was purely on administrative ground and in public interest and that it has nothing to do with the complaint made either by the 5th respondent or by the 6th respondent. The Additional Solicitor General submitted that since the incumbent to the post of Director, DDK, Chennai was on long leave, there was a need for posting a competent Station Director at Chennai, that one Sri Mukesh Sharma, DDK, Mumbai was also due for transfer and, therefore, as a chain the applicant was transferred to DDK, Chennai and the said Mukesh Sharma was transferred in his place to DDK, Bangalore purely on administrative grounds. The Additional Solicitor General submits that there is nothing unusual in the transfer of the applicant which is made in public interest. The Additional Solicitor General also took us to various decisions of the Supreme Court to say that Courts and Tribunals will not interfere with orders of transfer issued on administrative ground and in public interest unless it is vitiated by mala fides or for violation of statutory rules. The Additional Solicitor General submits that there is no violation of any statutory rule nor is there any specific pleading regarding mala fides on the part of the official respondents. The Additional Solicitor General, relying on the decision of a Constitution Bench of the Supreme Court in E.P. Royappa v. State of Tamil Nadu , submitted that the burden of establishing mala fides is very heavy on the person alleging it and that in the instant case, there is no reliable materials to establish mala fides. The Additional Solicitor General submitted that the administrative guidelines/ transfer policy have no statutory force and are not binding on the authorities. The Additional Solicitor General submitted that the applicant has not made out any case for interference with the transfer order under challenge.
12. Mr. G.R. Prakash, learned Counsel for the 5th respondent had made submissions on the lines made in the reply of the said respondent. There is no representation on behalf of the 6th respondent.
13. After reserving the case for orders, an affidavit is filed by the 7th respondent on behalf of respondents 1 to 4 and 7 on 29.12.2006 stating that in the reply filed on behalf of the said respondents there was no averment to the effect that respondents 1 to 4 had authorized the 7th respondent to file reply on their behalf also. It is stated in the affidavit that respondents 1 to 4 have authorized the 7th respondent to file the reply on their behalf also. On 10.1.2007 a memo was filed by Mr. Prakash Shetty, Advocate for respondents 1 to 4 and 7. It is stated that during the pendency of this case, the respondent department passed an order transferring Sri T.S. Gagan from DDK, Chennai to DDK Indore by its order dated 2.1.2007 and by producing a copy of which the respondents seek permission to inform the same to this Tribunal.
14. Before proceeding to consider the merits of the rival contention urged by the Counsel for parties, it is necessary to bearin mind the law regarding the scope of interference in judicial review assailing the order of transfer.
15. In Shilpi Bose v. State of Bihar 1991 Supp. (2) SCC 659, the Supreme Court at page 661, para 4 observed thus:
4. In our opinion, the Courts should not interfere with a transfer order which is 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.
16. In Union of India v. S.L. Abbas , the Supreme Court observed that:
7. 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.
17. A similar view has been taken by the Supreme Court in National Hydroelectric Power Corporation Limited v. Shri Bhagwan , wherein at Para 5 at page 577 it was 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 class or category of transferable post from one place to another is not only an incident but a condition of service, necessary too in public interest and efficiency in public administration.” Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provision prohibiting any such transfer the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.
18. A three Judges Bench of the Supreme Court inMajor General J.K. Bansal v. Union of India and Ors. has also adopted the aforesaid view.
19. In State of M.P. and Anr. v. S.S. Kourav and Ors. , the Supreme Court observed that:
The Courts or Tribunals are not the appellate forums to decide on transfers of officers on administrative grounds; the wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places; it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fide or by extraneous consideration without any factual background foundation.
20. Again, the Hon’ble Supreme Court in State of U.P. and Anr. v. Siya Ram and Anr. where the respondents therein was transferred on administrative grounds, the Hon’ble Supreme Court observed thus:
5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other 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 mala fide exercise or stated to be in violation off statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were Appellate Authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan.
6. The above position was recently highlighted in Union of India v.Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.
21. Again, the Hon’ble Supreme Court in State of U.P. v. Gobardhan Lal , in Paragraphs 7 and 8 observed thus:
7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals 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 Courts 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.
22. On the question of mala fides, the Supreme Court in State of Punjab and Anr. v. Gurdial Singh and Ors. , considered the question as to what is mala fides in the province of exercise of power. It was observed that “wisdom in administrative action is the property of the executive and judicial circumspection keeps the Court lock jawed save where power has been polluted by oblique ends or is otherwise void on well established grounds.” Thereafter in Paragraph 9 of the judgment it was considered thus:
9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power–sometimes called colourable exercise or fraud on power and often times overlaps motives, passion and satisfactions–is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: ” I repeat…that all power is a trust–that we are accountable for its exercise–that, from the people, and for the people, all springs and all must exist”. Fraud on power voids the order if it is not exercise bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other officer act.
23. The Constitution Bench of the Supreme Court in E.P. Royappa v. State of Tamil Nadu (supra), in Paragraph 86 observed that even if a public servant is in an officiating position he can complain of violation of Articles 14 and 16 of the Constitution if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of the power by the State machine. Thereafter the Court considered the question “whether the transfer of the petitioner therein first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide exercise of power. What was the operative reason for such transfer; was it the exigencies of public administration or extra administrations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except or collateral reasons?” It was further observedthat these are the questions which call for our consideration.
24. In the very same decision the Supreme Court at page 586 Para 92 observed “that the burden of establishing mala fides is very heavy on the person who alleges it, that the allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
25. In Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Ors. , observed thus:
2. It is the contention of the petitioner that his transfer is mala fide and without following any guidelines for transferring the officers. As against this, it has been pointed out that the petitioner is transferred because certain complaints were received against him. Learned Counsel for the petitioner has drawn our attention to Annexure-A2, the additional affidavit filed by the petitioner, which is in the form of noting and order (C&DS) dated 27.8.2000 which indicates that transfers are effected at the recommendations of their Ministers or MLAs/MPs/MLCs,
In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.
26. In A.L. Kalra v. Project and Equipment Corporation of India Ltd. , a three Judges Bench of the Supreme Court considered the scope and ambit of Article 14. After referring to the decisions of the Hon’ble Supreme Court in E.P. Royappa’s case , Ajay Hasia’s case , and Maneka Gandhi’s case , it was observed that:
19. The scope and ambit of Article 14 have been the subject matter of a catena of decisions. One facet of Article 14 which has been noticed in E.P. Royappa v. State of Tamil Nadu , deserves special mention because that effectively answers the contention of Mr. Sinha. The Constitution Bench speaking through Bhagwati, J. in a concurringj udgment in Royappa case observed as under [SCC Para 85. p.38 : SCC (L & S) P.200].
“The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any manner relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
This view was approved by the Constitution Bench in Ajay Hasia case. It thus appears well-settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessary involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed in Ajay Hasia case and put the matter beyond controversy when it said “wherever therefore, there is arbitrariness in State action whether it be of the Legislature or of the executive or of an ‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such State action”. This view was further elaborated and affirmed in D.S. Nakara v. Union of India . In Maneka Gandhi v. Union of India , it was observed that Article 14 strikes at arbitrariness in State action and ensures, fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14.
27. A Constitution Bench of the Supreme Court in A.K. Kraipak and Ors. v. Union of India and Ors. 1970 SC 150 at page 156 in Para 20, observed that the aims of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice, that a third rule was envisaged that quasi-judicial enquiries must be held, in good faith, without bias and not arbitrarily and unreasonably, that the same came to be added to the rules of natural justice and that whenever a complaint is made before a Court that some principle of natural justice had been controverted the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
28. Since the Counsel for the applicant has refereed to and relied on some of the decisions of the High Courts also it is only proper to refer to those decisions also. The decision of the High Court of Kerala in P. Rushkaran v. Coir Board and Anr. 1979 I L.L.J. 139 involving a transfer of an employee of the Coir Board rendered by V. Khalid, J. (as his Lordship then was) considered a question as to whether the transfer was in the exigencies of service or was for other reasons. In Paragraph 13 of the judgment the Court considered the jurisdiction in interfering with the orders of transfers and observed that:
13 …It cannot be disputed that an employer has a right to transfer his employee. An employee accepts employment fully knowing that he is liable to transfer from place to place for administrative reasons and in the interests of the employer. This is one of the conditions of service. No employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge.
Earlier decisions of that Court which took the following were also noted. In deciding the question as to what was the motive operating in the mind of the authority while passing the order of transfer, one has to look into the circumstances under which the transfer order was passed and if the dominant motive of the employer was to punish the petitioner, the transfer is bad. If it was to ensure efficiency in administration, the transfer has to stand. If the order is really intended as a punishment, though apparently innocuous, it will be open to the Court to consider whether the order is vitiated either by mala fide or by non-compliance of the principles of natural justice. While normally this Court will not intervene in orders of transfers it will certainly step in where it is found that any order of transfer the authority is not motivated on account of administrative exigency but by an improper purpose. The Court with reference to the facts of that case observed in Paragraph 23 as follows:
23. On a careful consideration of the materials available in the records, I find that the respondents have not disclosed all that is necessary for this Court to justify Ext.P3. When allegations are made against the respondents, including that of mala fides, it is the duty of the respondents to clear all charges against them so that the Court will be in a position to hold them. That things were not satisfactory can be discerned from the language of the correspondence and orders that have been exhibited in the files. The respondents cannot feign ignorance of the fact that some ones item appeared in the press that the then industries Minister had desired the ouster of the then Chairman of the Board. I am referring to them only to highlight the fact that in such cases the duty of the employer is to take the Court into confidence and tell the Court the whole truth. In view of the fact that the counter-affidavit does not indicate the availability or otherwise of the Upper Division Clerks in the Head Office, as to how the petitioner was picked from the remaining three bachelor Lower Division Clerks and how he was found more competent than the others. I have to hold that the transfer was not in the course of administrative routine or due to administrative necessity but for other reasons.
The Court ultimately held that the transfer was not in the course of administrative routine or due to administrative necessities but for other consideration. The following observations of the Court is also relevant:
25. This Court will normally lean in favour of the employer when a transfer order is challenged, for a proper administration of a Government or a Department of Government or even a Private Company, transfers will be necessary in the exigencies of service or for administrative reasons. An employee will not be lightly taken when orders of transfer are challenged. The whole difficulty arises when under the cover of ordering a transfer, an employer seeks to achieve something which he cannot otherwise achieve. In such cases, the employees in distress seek the assistance of Courts in their unequal contest with their employers. A transfer can uproot family, cause irreparable harm to an employee and drive him into desperation. It is on account of this, that transfers when affected by way of punishment, though on the face of it may bear the insignic of innocence, are quashed by Courts. I am not satisfied with the explanation given by the respondents.
29. A Division Bench of the Madras High Court in C. Ramanathan v. Acting Zonal Manager, FCI, Madras and Ors. (1980) 4 FLR 385, where a challenge to the transfer order was made on the ground that the order of transfer was vitiated by bad faith and it was in the nature of punishment inflicted on him due to personal differences with the first respondent and the first respondent circumvented the process of disciplinary proceedings and adopted the devious method of transferring the appellant and thus punishing him. Another contention was that the appellant being a well known union leader, he was transferred without following the guidelines in the matter of transfer which provided that a person should be placed at one place for at least 5 years. In that context it was observed thus:
7. Courts are chary to interfere with an order of transfer made for administrative reasons. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interests of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power by the concerned authority, is generally, upheld by Civil Courts, as Courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. But if in a given case, an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reasons but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer. No doubt, a normal order of transfer can be misunderstood as a punitive measure. But if the circumstances surrounding such an order leads to a reasonable inference by a well instructed mind, that such order was made in the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the Court, can be contended so as to decipher the intendment of the order and set it aside on the ground that is one made with a design and motive or circumventing disciplinary action and, particularly when civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Article 311(2) of the Constitution India.
The Court in that case after considering the pleadings held that:
We are satisfied that the order was passed for a collateral purpose and not for an administrative convenience in the public interest. We are, of course, conscious of the fact that innocuous and normal orders of transfers ought not to be interfered with by Courts if it was made for administrative exigencies or for other valid reasons but as in our view the order in question was passed by the disciplinary machinery and in order to avoid a fair opportunity being given to the appellant to explain his alleged misconduct. We are constrained to interfere in the instant case. Having regard to the specific allegation made in the counter affidavit by the first respondent, we are going behind the apparent reasons given in support of the order of transfer and after appreciating all the circumstances in the case, we are of the view that the order of transfer apparently was meant really to impose a punishment on the officer concerned. It appears to us to be colourable exercise of power or an exercise of power surcharged with bad faith as irrelevant consideration motivated the passing of the challenging order. Instead of taking disciplinary action against the appellant, this order of transfer has been made in order to circumvent the prescribed process in an action ordinarily undertaken against the Government servant for misconduct.
30. The Calcutta High Court also in Mahadeb Mahato v. District Inspector of Schools 85 Ors. 1987 II CLR 351, in Paragraph-9 took a similar view. A Division Bench decision of the Madhya Pradesh High Court in R.K. Dubey v. M.P. State Agro Industries Corporation 1992 (2) LLJ 182, has observed thus:
In any service when the relationship is that of master and servant, transfer, retirement, promotion etc., are incidents of service. Usually the master has full power to transfer his servant wherever he wants because transfer is ordered looking to the character and quality of work the servant does. Thus, if the master as of the opinion that a particular servant is required at a particular place for a particular duty, the master has a right to transfer such a servant from one place to another. This power of the master is not absolute and should not be exercised capriciously. At the same time, the master should avoid to transfer his servant simply to accommodate the other favoured servant. Furthermore an order of transfer of a servant should be passed in public interest or in the interest of the institution itself where the servant serves. Exigencies of administrative purpose also sometimes persuade the master to transfer the servant from one place to another. Orders of transfer of a Govt. servant like any other administrative or executive orders are passed invariably for administrative purposes or in public interest. Such orders normally are outside the purview of examination by Courts of law. But an executive decision or action or an administrative decision is liable to be struck down if it is used mala fide or for a collateral purpose.
It was further observed in Paragraph 11 of the said decision that “this Court is always reluctant to interfere in the matters of transfer of a public servant but if it appears that the order of transfer is lacking in bona fide, then for the sake of justice and fair play, this Court grants the relief.
31. One common thread that runs through all the decisions referred to above is that Courts will certainly interfere with an order of transfer of a Government servant if it is vitiated by mala fides in the sense understood in Gurdial Singh’s case supra. It is also a settled position that while ordering transfer the authorities must keep in mind the guidelines issued by the Government on the subject and must be given effect to except in cases where public interest or administrative exigencies demand otherwise.
32. It is also relevant to note that the Director General, Doordarshan had issued an office memorandum dated 31.12.1992 containing the decision that a uniform transfer policy as applicable in All India Radio shall be implemented in Doordarshan also and that it shall come into effect from the date of issue of this office memorandum. The transfer policy for All India Radio as contained in the communication dated 14.7.1982 issued by the Government of India, Ministry of Information and Broadcasting which extend to Doordarshan also. As per Clause (i), the Station/Officer of All India Radio will be categorised into A, B and C categories, as indicated in the Annexure, for the purpose of fixation of tenure of personnel at these station/officers. Clause (ii) provides that the normal tenure at station/ offices categories as A, B will be 4 years and at stations/offices categorised as C will be 2 years. The list attached to the Government order shows that Bangalore and Chenhai are categorised as A. Clause (xvi) provides that six months before expiry of normal tenure of posting at a station, an employee may indicate his choice of minimum of three different stations where he would like to be preferably posted and such option my be taken into consideration before his next posting is decided. Clause (xxv) provides that transfers will, as far as possible be synchronised with the end of the academic year so that the education of the children does not suffer. Para-2 of the policy says that “transfer policy, as enunciated above, should be implemented as objectively as possible. If any exception is required to be made, it would be got approved at the highest level in the Directorate.”
33. Now coming to the facts of the present case, the applicant was posted as a Senior Director of Doordarshan, Bangalore since 1.4.2005; he had completed only 1 year 7 months in the said post of Bangalore. As per the transfer policy of AIR and Doordarshan Kendra mentioned above, there is a tenure of 4 years at a station and further, the incumbent has got an option on the expiry of the tenure period to mention 3 choice places for a posting to another station. Further, as per Paragraph-2, if a transfer has to be made in violation of the aforesaid guide lines the approval of the highest level in the Directorate has to be obtained. The applicant while functioning at Bangalore has been awarded with the Prestigious Karnataka Rajyotsava Award for his contribution to public service broadcasting for the year 2006. This has been appreciated by the Chief Executive of the second respondent in his letter dated 31.10.2006 (Annexure-A19). It is worthwhile to extract contents of the said letter.
I am extremely glad to learn that Dr. Mahesh Joshi, Director of Doordarshan Kendra, Bangalore, has been conferred the prestigious Karnataka Rajyotsava Award, for his contribution to Public Service Broadcasting. I understand that this is for the first time such an award is being accorded in Mass Media category to Doordarshan. The happiness is greater as it comes at a time when the State is celebrating its Golden Jubilee.
It is high water mark not only for the Kendra Director, Dr. Mahesh Joshi but more so for the entire family of Doordarshan Chandana. I am glad that Bangalore Doordrshan Kendra has received recognition from Karnataka Government for striving to reach out to the masses. The Chandanotsava Festivals, Invited Audience Programmes and Public Grievance Programmes like–hello CM, Hello Dy. CM etc., held in various parts of the State have endeared the Channel to one and all. This prestigious award will enthuse us to attain greater heights.
I offer my most warm congratulations to Doordarshan Kendra, Bangalore and its director Dr. Joshi.
34. Here it has to be noted that before the ink is blotted the very same authority has issued the transfer order dated 2.11.2006, impugned in this O.A. Though the impugned order does not speak that the transfer is made on administrative grounds or in public interest, in the reply it is stated that the applicant is transferred from Bangalore to Chennai on administrative grounds. Thus by applying the legal principles laid down by the Supreme Court and set out in the earlier parts of this judgment the Court/Tribunal can normally interfere with such an order only if it is passed in violation of statutory rules or mala fide.
35. As already stated, the case of the applicant is that he has been transferred from Bangalore to Chennai in violation of the guide lines regarding transfer policy only on the basis of the complaints made by the 5th and 6th respondents and that too, particularly, on the complaint of the 6th respondent who is a Member of Parliament before the Hon’ble Minister for Information and Broadcasting, Government of India, to shift the applicant from Bangalore immediately. According to the applicant, the second respondent without application of mind and without any bona fides, at the dictation of the Minister for Information and Broadcasting due to the pressure of the 6th respondent, the M.P., has issued the transfer order without following the procedure and formalities in that behalf. According to the applicant, the transfer is not for any administrative reason nor in the public interest but only to oblige the request of the 6th respondent and consequently in bad faith and for a collateral purpose. On the other hand, the case of the official respondents 1 to 4 and 7 as stated in their reply affidavit is that the transfer of the applicant from Bangalore to Chennai was only on administrative grounds and in public interest due to the exigencies of service. It is also their case that the complaint filed by the 5th or 6th respondents has nothing to do with the transfer. It is also stated that the complaint received from the 6th respondent and the reply submitted by the applicant which was received on 17.11.2006 is pending consideration. Thus, though the respondents have maintained the stand that the transfer of the applicant from Bangalore to Chennai is purely on administrative grounds and in public interest since the incumbent of the post of Director at Chennai was on long leave, in view of the specific averments of the applicant that the transfer was made without any bona fides and for collateral purpose, in that, it was solely due to the pressure from the 6th respondent on the Minister concerned, in view of the principles laid down by the Hon’ble Supreme Court and High Courts, it is necessary to consider the question as to whether the transfer order of the petitioner was arbitrary, hostile and in mala fide exercise of power. The considerations as stated by the Supreme Court in E.P. Royappa’s case supra are what was the operative reason for such transfer, was it in the exigencies of public administration or extra administrative consideration having no relevance to the question of transfer and as to was the transfer so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons. We have to bear in mind the principle stated by the Kerala High Court in Pushkaran ‘s case (supra) that it is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, the transfer order gets exposed to challenge and where it is found that the transfer was not in the course of administrative routine or due to administrative necessity but for other reasons the Courts will interfere with transfer orders. The Division Bench of the Madras High Court in Ramanathan’s case (supra) wherein it was held that if in a given case an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reasons but it was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer and if the circumstances surrounding such an order leads to a reasonable inference by a well instructed mind that such order was made on the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations the arms of the Court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive and the finding that it appears to us to be colourable exercise of power or an exercise of power surcharged with bad faith as irrelevant consideration motivated the passing of the challenging order. It is also relevant to bear in mind the decision of the Supreme Court in Gurdial Singh (supra) that the wisdom in administrative action in the property of the executive and the judicial circumspection keeps the Court lock jawed save where power has been polluted by oblique ends or is otherwise void on well established grounds (under lining supplied). Regarding the meaning of mala fides in the jurisprudence of power, the Supreme Court observed that bad faith which invalidates the exercise of power–sometimes called colourable exercise or fraud on power and often times overlaps motives, passion and satisfactions–is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal and that the action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment.
36. The admitted facts in this regard are that the 5th respondent, who is a Deputy Director (ad hoc), Doordarshan Kendra, Kolkata had filed a complaint dated 25.7.2005 (Annexure-A1) against the applicant before the second respondent. In the said complaint, the 5th respondent wanted to shift the applicant from Doordarshan Kendra, Bangalore alleged to be in the interest of organisation. Similarly, the 6th respondent, who is a Member of Parliament from Karnataka had addressed a letter dated 21.8.2006 to Shri P.R. Das Munshi, Hon’ble Minister for Information and Broadcasting, Government of India, New Delhi (Annexure-A2) enclosing the history of the applicant and specifically requesting him to shift the applicant immediately. The second respondent forwarded Annexure-A1 complaint of the 5th respondent for the comments of the applicant. Similarly, the Ministry of Information and Broadcasting had forwarded the complaints submitted by the 6th respondent to the 7th respondent for report and for getting the comments from the applicant. This communication, it must be noted, was first issued on 19.9.2006 and thereafter reminders were sent on 29.9.2006, 20.10.2006, 25.10.2006 and 31.10.2006 (See Annexures-A5 and A6). It is pertinent here to extract the communication dated 31.10.2006 (Annexure-A6) and it reads:
Director, Doordarshan Kendra, Bangalore may please refer to his letter No. BNG/ DDK/DTC(MJ)/2006 dated 25.10.2006 regarding a VVIP reference received from MIB through Prasar Bharati. Any reference that comes from MIB needs to be answered comprehensively with supporting documents etc., if any for his consideration before a reply is sent to the VVIP by the Hon’ble Minister. While the points mentioned in the letter had already been stated in the earlier communication addressed to you, please find enclosed a copy of the complaint forwarded by the Directorate. Kindly prepare a detailed point-wise reply with supporting documents to be enclosed. On seeing the details I would forward along with my comments a draft reply to the Ministry and also if need be cross check one or two records wherever it is needed. This may be given top priority since reminders have come on the issue. Kindly send it immediately.
The applicant, of course, submitted his reply on the very same day (Annexure-A7) but the same was received by the Ministry only on 17.11.2006 as per the reply. The impugned order was passed in the meanwhile on 2.11.2006. Though it is stated in the impugned order that the following transfers and postings in AIR and Doordarshan has been decided with immediate effect, only the applicant was transferred and the 7th respondent was directed to take over additional charge of Director, Doordarshan Kendra, Bangalore, with immediate effect, from 2.11.2006 without fail.
37. It-is also relevant in this context to note that the applicant was seriously involved in covering the Golden Jubilee Functions of the Hon’ ble High Court of Karnataka scheduled to be held on 4.11.2006.
38. The reason for the transfer of the applicant as is seen from the reply of the official respondent is that the Director, Doordarshan, Chennai, Shri T.S. Gagan had a massive heart attack and went on leave; that he underwent an angioplasty and in view of his medical condition, he was advised not to undertake arduous duties or travel and as such he could not resume his duty as Director, Doordarshan, Chennai. It is also stated that the Director, Doordarshan, Mumbai, one Shri Mukesh Sharma, who had been holding the said post since 2000 and that on certain administrative ground as well as in view of the fact that he had served Doordarshan for more than the normal tenure it was considered desirable to shift him to another station. It is stated that in view of these circumstances, on 1.11.2006, a decision was taken to transfer the applicant from Doordarshan Kendra, Bangalore to Doordarshan Kendra, Chennai and to transfer Shri Mukesh Sharma from Mumbai to Bangalore. It is their further case that Doordarshan Kendra, Chennai is a major Kendra and therefore, it was deemed expedient to post a person more senior than the applicant.
39. The case of the official respondents is that the transfer of the applicant was in the exigencies of service. We find on a perusal of the Government file placed before the Bench that Shri T.S. Gagan who had undergone surgery had applied for leave upto December end. We also find that he had requested for retention at Chennai itself till June 2007 on account of the education of his children and on medical grounds. As already noted, the applicant was holding the post of Director, Doordarshan Kendra, Bangalore only from April, 2005, he did not complete the normal tenure period. On the other hand, Shri Mukesh Shrama, Director, Doordarshan Kendra, Mumbai was in the said station since 2000 and according to the respondents he was due fortransfer. Ordinarily, since the incumbent of the post of Director, Doordarshan Kendra, Chennai was on leave till December, 2006, there was no need for posting another person at Chennai unless the circumstances so warrant. No such circumstance has been pointed out. If at all, somebody has to be posted at Chennai, Shri Mukesh Sharma who was due for transfer as per the guideline ought to have been transferred to Doordarshan Kendra, Chennai. Regarding the competence of Shri Mukesh Sharma, the correspondence resting in the file placed before us speak volumes. He was also a very senior officer. The impugned order is passed by the 2nd respondent. The very same respondent had appreciated the service of the applicant in the context of the conferment of the prestigious Karnataka Rajyotsava Award, the full text of which we have already extracted earlier. This appreciation was made on 31.10.2006. It is very difficult to believe that the very same person of his own initiative will issue an order transferring the applicant within 2 days in an unceremonious, way as has been done in the impugned order. As already noted, the applicant was in-charge of the covering of Golden Jubilee Function of Hon’ble High Court of Karnataka to be held on 4.11.2006 and he has been transferred with immediate effect on 2.11.2006. See the unceremonious way of dealing with a man about whom it is said that it is high water mark not only for the Kendra Director, Dr. Mahesh Joshi but more so for the entire family of Doordarshan Chandana. Is it the intention of the respondents to see that the applicant should not any more monitor the Golden Jubilee Function of the High Court and to receive similar award or appreciation from the Hon’ble High Court as done by the Karnataka Government? What was the necessity for relieving the applicant on 2.11.2006 itself if the object was not as stated above? Nothing more is required for a reasonable inference that the second respondent has passed the transfer order not on his own independent judgment but only at the dictate of somebody else without any bona fides, for extraneous reasons. As held by the Supreme Court and by the High Courts “acolourable exercise of power”. It is in this context the request made by the 5th respondent in his complaint (Annexure-A1) for shifting the applicant from Bangalore and the forceful request of the 6th respondent, M.P. to the Hon’ble Minister for Information and Broadcasting specifically for shifting the applicant with immediate effect looms large. As already noted the receipt of the complaint from the 5th respondent and also from the 6th respondent with the aforesaid request is admitted and the Ministry of Information and Broadcasting, New Delhi, has been insisting for early reply from the 7th respondent and the applicant. From the correspondence, it is clear that there was pressure from the M.P. with the Ministry for an early action. Though the 6th respondent had made the complaint to the Hon’ble Minister as early as on 21.8.2006 and the same could not be effectively replied till 30.11.2006, the Ministry of Information and Broadcasting with all reasonable action would have thought of issuing directions to the second respondent to transfer the applicant from DDK, Bangalore as an immediate measure to pacify the 6th respondent.
40. As already noted, if the administrative exigency was for filling up the post of Director, Doordarshan Kendra, Chennai, since the incumbent of the said post was on leave and since the respondents wanted to transfer Shri Mukesh Sharma from Mumbai on account of the fact that he has completed the tenure period, there was no need at all for transferring the applicant from Bangalore to Chennai. The said Shri Mukesh Sharma could have been transferred to Chennai. Though it is true that it is for the Competent Authority to consider as to who should be transferred to a particular station, in the instant case, Shri Mukesh Sharma, Director, DDK, Mumbai was an equally competent person as that of the applicant as per the records available in the file and no special circumstances has been pointed out to say that the applicant alone has to be transferred to Chennai.
41. We also do not find any correspondence in the Government file requiring the need for transferring the applicant from Bangalore to Chennai. The noting of the second respondent in the file on 1.11.2006 is that “on administrative grounds, the following transfers may be effected with effect from 2.11.2006: (i) Shri Mahesh Joshi, Director, DDK, Bangalore stands transferred as Director, DDK, Chennai vide Shri T.S. Gagan on leave; (ii) Shri N.G. Srinivasa, DD (SR) Bangalore shall take over additional charge of Director, DDK, Bangalore with effect from 2.11.2006 without fail”. This order is passed by the CEO, Prasar Bharati or 1.11.2006. The file only shows that this order is passed by the second respondent at his ipsi dixit without consideration of any of the relevant matters as if it has come to his mind on that day. The noting in the second page is that “CEO has directed over phone that the following transfer may be effected on administrative grounds.
1. Shri Mukesh Sharma, Director, DDK, Mumbai consequent to his transfer stands posted as Director, DDK, Bangalore. Post facto approval of CEO Prasar Bharathi on his return from Beijing, China may be taken.
Now it is seen that Shri T.S. Gagan is transferred from Chennai to Indore by order dated 2.1.2007. It is noted that he is on long medical leave (at Chennai). This is in spite of the request made by him to retain at Chennai till the end of the academic year. It is seen that he sought leave only till the end of December 2006. It is not clear as to why there was need for transfer if he was on long leave as stated. Is it for creating vacancy at DDK, Chennai for accommodating the applicant? We are of the considered view that the order under challenge is not one passed innocently on administrative ground or in public interest but only for extraneous reasons and that too without any bona fides in an arbitration manner attracting Articles 14 and 16 of the Constitution.
42. We have noted the transfer policy in the All India Radio and Doordarshan in Paragraph 30 supra. From the reply filed by the official respondents it is seen that they have considered the transfer policy in the matter of transfer of Shri Mukesh Sharma, DDK, Mumbai (See: Paragraph 3 of the reply where it is stated that Shri Mukesh Sharma had served DDK, Mumbai for more than the normal tenure, it was considered desirable to shift him to another station). However, when it came to the applicant no such consideration was given. Thus, it is a clear case attracting the provisions of Articles 14 and 16 of the Constitution as explained by the Supreme Court in the decisions referred to earlier in this order. We have already held that the transfer was not in public interest nor on administrative grounds.
43. Viewed from any angle, it does not inspire confidence in us to hold that the order transferring the applicant from DDK, Bangalore to DDK, Chennai was made on administrative grounds or in public interest. On the other hand, on the admitted facts, it is seen that the 6th respondent, M.P. had requested for shifting the applicant immediately from Bangalore; the said request was made to the Hon’ble Minister for Information and Broadcasting personally and that the Ministry was pressing hard for the comments of the applicant time and again by way of reminders. It is also evident that no satisfactory reply could be given to the 6th respondent from the Ministry on the request made by him for about three months and it is only to pacify him the applicant has been transferred as requested by the 6th respondent. From these circumstances, it is clear that the transfer of the applicant was mala fide within the meaning of the expression as clarified by the Supreme Court in the Gurdial Singh’s case supra. Thus, it is clear that the transfer of the applicant was not on administrative grounds nor on public interest but by way of colourable exercise of the power vested in the second respondent without any bona fide and for extraneous reasons. The action is bad since the true object was to reach an end different from the one for which the power is entrusted on the 2nd respondent.
44. Though, as held by the Constitution Bench of the Supreme Court in E.P. Royappa’s case (supra), the burden of establishing mala fides is very heavy on the person who alleges mala fides in view of the discussion above and our findings above the said burden is discharged. It is made clear that we have arrived at the aforesaid findings only on the basis of the admitted facts and by way of reasonable inference drawn on the admitted facts.
45. For all these reasons the impugned order of transfer cannot be sustained. It is accordingly quashed. In the circumstances of the case there will be no order as to costs.