ORDER
A.V. Savant, J.
1. We have heard the petitioner in person and all the learned Counsel appearing for the respondents.
2. The petitioner belongs to the Indian Police Service (I.P.S.). He challenges the order passed by the Central Administrative Tribunal (for short – Tribunal) Mumbai Bench, Mumbai on 26th May, 1997 (Exh. A page 82) dismissing his Original Application (O.A.) which was filed against the order of his transfer, dated 1st April, 1997 (Ex. B page 93) which was issued by the State Government transferring him from the post of Asstt. Inspector General of Police (Administration), Maharashtra State Mumbai to Nagpur as the Commandant of the State Reserve Police Force. The principal challenge that was raised before the Tribunal was on the ground of mala fides as also on the ground of violation of guidelines contained in Chapter I – para 30 of the Bombay Police Manual, Vol. I viz. that the proposal for his transfer ought to have been initiated by the Director General of Police and by none else. These are also the two principal contentions which Shri Singh has urged before us while assailing both the orders; that of the tribunal as also the order of his transfer.
3. Detailed affidavits have been filed by the concerned respondents since there are allegations of mala fides against the fourth respondent Shri Gopinath Munde, the Deputy Chief Minister, who is also the Home Minister and the fifth respondent Shri Dinesh Afzalpurkar, who is the Chief Secretary, Government of Maharashtra. On behalf of the State Government, Smt. Anjali Sakhalkar, the Joint Secretary in the Home Department has filed a detailed affidavit. Smt. Sakhalakar’s affidavit gives the details of all the postings of the petitioner ever since he joined the I.P.S. on 23rd December, 1985. Initially, he was posted as Asstt. Superintendent of Police, Rural Division, Akola where he worked from 20th November, 1987 to 30th July, 1988. He then worked as Asstt. Superintendent of Police (City) Akola from 1st August, 1988 to 10th December, 1989. Thereafter he worked as Superintendent of Police, Wardha from 12th January, 1990 to 13th June, 1991; as Joint Commissioner (Vigilance), Food and Drugs Administration, Maharashtra State from 16th August, 1991 to 1st February, 1993; as Superintendent of Police C.B.I. Anti-corruption, Mumbai, from 2nd February, 1993 to 23rd May, 1996 and then as Asstt. Inspector General Police, Maharashtra State, Mumbai in the office of the Director General of Police where he worked in two capacities, viz. (a) Asstt. Inspector General of Police (Establishment) from 27th May, 1996 to 11th July 1996 and (b) Asstt. Inspector General of Police (Administration) from 12th July, 1996 to 2nd April, 1997.
4. Apart from the allegations of mala fides and violation of the guidelines contained in para 30 of the Bombay Police Manual, the petitioner has also contended that since his wife belongs to the Indian Postal Service and is presently posted in Mumbai, as per the guidelines issued by the State Government on 19th August, 1975 (page 245), the petitioner must also be posted in Mumbai.
5. Before we go to the pleadings, we must bear in mind the approach of the Hon’ble Supreme Court and the scope of judicial review in matters of challenge to an
order of transfer. As far as the guidelines regarding posting of husband and wife at a particular place are concerned, we may refer to the decision of the Supreme Court in Bank of India v. Jagjit Singh Metha, . In para 5 of the judgment at page 520 of the report, the Supreme Court observed that there can be no doubt that ordinarily, and as far as practicable, the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All India Services (like the case before us), the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other’s posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the postings of both at one place without sacrifice of the requirements of the administration and needs of other employees.
6. In Union of India and others v. S.L. Abbas, , the Supreme Court had an occasion to consider the question of transfer of a Government employee, which was alleged to be in violation of certain guidelines. While reiterating that transfer is an incidence of Government service, the Supreme Court observed in para 7 of the Judgment at page 2445 of the report as under:
“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. The guidelines say that as far as possible,
husband and wife must be posted at the same place. The said guideline
however does not confer upon the Government employee a legally
enforceable right.”
After making these observations, in para 8 of the judgment at page 2446 of the report,
regarding the scope of judicial review this is what the Supreme Court has stated:
“8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323A of the Constitution. The constraints, and norms which the High Court observes while exercising the said jurisdiction apply equally to the tribunal created under Article 323A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority)”.
7. In Rajendra Roy v. Union of India and another, , the Supreme Court held that it was true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but, on that score, the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the tribunal should not interfere with the order of transfer. In a transferable post, an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. These observations are to be found in para 7 of the judgment at page 1239 of the report.
8. In State of Madhya Pradesh and another v. S.S. Kourav and others, , the Supreme Court reiterated the proposition that the courts or tribunals are not the appellate fora 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 fides or by extraneous consideration without any factual background foundation. In the facts of the case before the Supreme Court, it was held that when an order of transfer was issued on administrative grounds, the Court cannot go into the expediency of posting an officer at a particular place. These observations are to be found in para 4 of the judgment, at page 1057 of the report.
9. In Abani Kanta Ray v. State of Orissa and others, 1995 Suppl. (4) Supreme Court Cases, 169, the Supreme Court observed in para 10 of the judgment at page 174 of the report that it was settled law that a transfer which is an incidence of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. In saying so, the Supreme Court referred to its earlier decision in N.K. Singh v. Union of India, 1994(6) Supreme Court Cases, 98.
10. Bearing in mind the above approach of the Supreme Court, one has to necessarily find out whether the order of transfer is vitiated either by mala fides or by the breach of any provision of law or even rules. It is relevant to bear in mind that in accordance with the rules of business framed by the State Government, in exercise of its powers under Article 166 of the Constitution, the proposals for appointment, posting and transfer of officers of All India and Class-I services (except appointment of the Deputy Collector as a Special Officer for conducting the Departmental Enquirias) and such other officer as may be specified from time to time by special general order, are matters which must be submitted to the Chief Minister before issue of the orders. We will refer to the pleadings in this behalf, but Shri Singh fairly stated that he was making no allegations of any mala fides against the Chief Minister who himself dealt with the matter and has passed the final order. There are no allegations of mala fides against Smt. Sakhalkar, the concerned Joint Secretary in the Home Department, who initiated the proposal for transfer. Indeed, neither the Chief Minister nor Smt. Sakhalkar is a party to this petition.
11. As far as the allegations of mala fides are concerned, it is true that the petitioner has made allegations both against respondent No. 4 Shri Gopinath Munde, Deputy Chief Minister, and respondent No. 5 Shri Dinesh Afzalpurkar, the Chief Secretary. The allegations against the fourth respondent Deputy Chief Minister, who is in-charge of the Home Portfolio, are that he was indulging in large scale transfers of police officers
and was entertaining representations and recommendations from various persons. The petitioner did not approve of this style of functioning of the fourth respondent. He has attributed motives to the fourth respondent in entertaining such applications and representations for transfers. In his affidavit-in-reply, the fourth respondent has denied these allegations. While setting out the manner in which the proposal for petitioner’s transfer to Nagpur was initiated and processed in accordance with the rules of business framed under Article 166 of the Constitution, the fourth respondent has denied the allegations of mala fides made against him. Shri Munde has categorically stated that the proposal for transferring the petitioner originated in the Home Department of the State Government. After it was so originated on administrative convenience, it was cleared by the Additional Secretary, Home. Thereafter, the said proposal was forwarded to the Chief Minister, through the Deputy Chief Minister in accordance with the Rules of business having regard to the fact that the fourth respondent is also the Home Minister. The fourth respondent then states that in routine course he had cleared the said proposal and thereafter it went to the Chief Minister, who again cleared the same in a routine manner in accordance with the rules of business. He further states that the petitioner’s transfer and posting at Nagpur as Commandant of the State Reserve Police Force was made in routine course on account of administrative convenience and for no extraneous reasons.
12. As far as the Chief Secretary, respondent No. 5 is concerned, the petitioner has alleged personal bias against him on account of an alleged investigation carried out by the petitioner against the fifth respondent when the petitioner was working with the C.B.I. In the course of his submissions, Shri Singh also referred to the fact that two writ petitions were filed in this Court against the initial appointment of the fifth respondent as the Chief Secretary of the State and his extention for a period of six months at the end of the initial term of appointment. As far as the Original Side Writ Petition No. 2234 of 1996 filed by an Advocate of this Court Shri M.P. Vashi is concerned, it is relevant to note that by an order dated 3rd December 1996 the Division Bench of Shri M.B. Shah, C.J. and Shri J.N. Patel, J. rejected the said writ petition by a reasoned order. As far as Original Side Writ Petition No. 28 of 1997 filed by a journalist Smt. Uma Jangam is concerned, the same has been rejected on 4th February 1997 when it was heard by Shri M.B. Shah, C.J., and Shri F.I. Rebello, J. All the Counsel appearing before us and Shri Singh, the petitioner, are agreed that there is no further proceedings pending either in this Court or in the Supreme Court as far as the appointment and/or extention granted to Shri Afzalpurkar is concerned. That apart, the allegations made against the Chief Secretary are denied by him in his affidavit dated 24th June 1997. He has denied that he had any personal bias or malice against the petitioner. In para 6 of his affidavit, he has categorically stated that as the Chief Secretary he was not concerned with the transfer of the petitioner and the file did not go through him.
13. On behalf of the State Government Smt. Anjali Sakhalkar, Joint Secretary, Home Department, has filed a detailed affidavit dated 24th June 1997. In para 5 of her affidavit she has referred to the procedure followed under Rule 15(1)(ix) of the Rules of Business framed by the State Government in exercise of its powers under Article 166 of the Constitution. She has referred to the fact that in accordance with the said rules, the proposal was processed and was finally placed before the Chief Minister and only after the approval of the Chief Minister was obtained, the petitioner was transferred from Mumbai to Nagpur and was posted as Commandant, Group-IV State Reserve Police Force, Nagpur. In para 11, she has denied the allegation that the
petitioner was transferred from Establishment to the Administration Section when he was in the D.G.’s office because he was opposed to some of the transfers suggested by the Government. In para 12, Smt. Sakhalkar has indicated that the post of Commandant, State Reserve Police Force, Nagpur, is an important post and she has given the strength of the force that would be at the disposal of the petitioner. She has referred to the circumstances in which the said post had fallen vacant where the petitioner has been transferred. In para 12, she has also referred to the details of initiation of the proposal for transfer of the petitioner and the various stages through which the proposal was processed culminating in the approval of the Chief Minister. In para 17, she has categorically stated that the fifth respondent Chief Secretary is not concerned with the appointment, transfer and posting of police officers of the rank of Superintendent of Police and below. She has further reiterated the fact that the Chief Secretary was, at no point of time, and in no way, concerned either with the proposal or the order of transfer of the petitioner from Mumbai to Nagpur. These are, in brief, the pleadings on the question of mala fides which is the principal ground of attack of Shri Singh.
14. In this behalf, it is necessary to bear in mind the law laid down by the Supreme in the case of E.P. Royappa v. State of Tamil Nadu and another, reported at . That was a case where the Chief Secretary of Madras had made allegations of mala fides against the Chief Minister of the State. While dealing with such a situation, the Supreme Court observed in para 92 of the judgment at page 586 of the report that the burden of establishing mala fides is very heavy on the person who alleges it. 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. The Supreme Court was dealing with the allegations made by the Chief Secretary against the Chief Minister and it referred to the anxiety of the Court in insisting on a high degree of proof in support of such allegations. At the end of para 93 of the judgment, the Supreme Court concluded that a few circumstances had created suspicion, but suspicion cannot take the place of proof and the proof needed was of a high degree.
15. Similar approach is indicated in N.K. Singh v. Union of India, reported at . In para 18 of the judgment, the Supreme Court rejected the plea which would call for approving inquiry into the matter which was held to be unjustified within the scope of judicial review of an order of transfer which was being scrutinised with reference to the private rights of an individual. The proposition of law laid down in N.K. Singh’s case was again reiterated by the Supreme Court in A.K. Roy’s case, 1995, Supp. (4), Supreme Court Cases, 169 (supra para 9 of this order). In para 10 of the judgment in A.K. Roy’s case, at page 174, the Supreme Court reiterated the proposition of law laid down in N.K. Singh’s case.
16. In the light of the above legal position, in our view, no proof of the requisite degree is before us to come to the conclusion that the order of petitioner’s transfer from Mumbai to Nagpur is actuated by mala fides. The allegations made by the petitioner are mainly against respondents No. 4 and 5 which have been denied. The Rules of Business under Article 166 have been followed. No allegation of mala fides is made against the Chief Minister or even against Smt. Sakhalkar, the concerned Joint Secretary, Home Department. The initiation of the proposal for petitioner’s transfer was at her level viz. the Joint Secretary, Home Department and the final approval has been accorded by the Chief Minister, against none of whom any allegations of mala fides have been made. They are not even parties to this petition.
17. Shri Singh relied heavily on the observations of the Supreme Court in the case of Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others, reported at . In particular, he invited our attention to the observations made in paragraphs 36 & 37 of the judgment, at page 306 of the Report. These observations were made in the light of the allegations that the marks obtained by the daughter of the Chief Minister were altered and the grade-sheets were tampered at the behest of the Chief Minister of the State. The High Court took the view that though there was no direct evidence it could reasonably be inferred that the tampering was done at the behest of the Chief Minister. With respect, we do not think that the ratio of the decision in Nilangekar Patil’s case has any application to the facts of the case before us when no allegations of mala fides are made against Smt. Sakhalkar who initiated the proposal and against the Chief Minister, who accorded the final approval to the transfer. We, therefore, do not find any merit in the allegations of mala fides made by the petitioner.
18. Coming to the ground that the guidelines contained in para 30 of the Police Manual were breached, we find it convenient to reproduce the said para 30 :—
“30. Inspector General of Police. (1) The Inspector General of Police is the Head of all the Police Force in the State including the Bombay City Police. He is the, Head of the Police Department and the Adviser to Government on all questions of Police Administration. He is responsible for the internal economy, general training and discipline of the Police Force, and for its efficient organization as a means of preventing and checking crime and preserving law and order.”
Shri Singh’s contention is that, in the light of the above guidelines, none else than the Director General could have initiated the proposal for his transfer. The sequitur to this is that, in the facts of the case, initiation by any one else is mala fide. In this behalf, it is relevant to note that under section 4 of the Bombay Police Act, 1951, the Superintendence of the Police Force throughout the State vests in and is exercisable by the State Government and the Secretary to the State Government in Home Department, whether designated as Secretary, Home Secretary, Special Secretary, Additional Chief Secretary or otherwise in-charge of Law & Order division of the Home Department shall exercise control, direction and supervision over the entire police force. Section 6 of the Bombay Police Act, deals with the Director General of Police, who has to be appointed, subject to the provisions of section 4, by the State Government, who shall exercise such powers and perform such functions and duties and have such responsibilities and authorities, as may be provided by or under the said Act or orders made by the State Government. Shri A.S. Samra, Director General of Police, Maharashtra State, has filed his affidavit and has referred to the circumstances leading to the proposal of transfer of the petitioner from Mumbai to Nagpur. As far as the petitioner’s transfer from the Establishment Section to the Administration Section in the office of the D.G. Police, Shri Samra has referred to this as a mere change of the subject being handled by the petitioner which could not be termed as a transfer. He has referred to the discussion with the Additional Chief Secretary about the petitioner’s posting out of Bombay. Since the Government did not want to keep the post of Commandant, S.R.P.F. Group IV, Nagpur vacant, which had been lying vacant for some time, it was proposed to post the petitioner as Commandant, S.R.P.F. Group IV, Nagpur. Shri Samra states that the post of Commandant, S.R.P.F. Group IV, Nagpur is an I.P.S. cadre post like the post of Addl. I.G., and any I.P.S. Officer in the senior scale is liable to be posted to these posts. He states that it would be incorrect to say
that the post of Commandant, S.R.P.F. Group IV, Nagpur, is, in any way, less important than the post of Additional I.G., Mumbai. In view of the clear provisions of section 4 and section 6 of the Bombay Police Act, 1951, and the affidavit made by Shri Samra, we find no substance in the petitioner’s contention that his transfer to Nagpur from Mumbai as Commandant, S.R.P.F. is in violation of para 30 of the Bombay Police Manual, merely because the proposal was initiated by Smt. Sakhalkar and not by Shri Samra.
19. Shri Singh also contended that even his initial repatriation to the State Government from the C.B.I., Mumbai in the year 1996 was mala fide. After he had worked as Superintendent of Police, C.B.I., Anti-Corruption Bureau, Mumbai, from 2nd February 1993 to 25th March 1996, he was repatriated to the State Government and started working as Assistant Inspector General of Police in the office of the D.G. Police from 27th May 1996. However, this is an issue which is the subject matter of pending O.A. No. 469 of 1996 before the Central Administrative Tribunal, Mumbai Bench, Mumbai. Shri Singh fairly stated that he has not been able to obtain any interim order either from the tribunal, or from the High Court in respect of his repatriation from the C.B.I., Mumbai, to the State Police. Be that as it may, since the main proceedings are pending before the Tribunal Mumbai, we do not think it proper to make any observations on the question of petitioner’s repatriation from the C.B.I. to the State Police.
20. It was then suggested by Shri Singh that the Tribunal’s order passed by the learned Single Member was in violation of the provisions of the Administrative Tribunals Act, 1985. Reliance was placed on Appendix VII under Rule 154(c) dealing with subject wise classification of Division Bench cases. Item 3 in the said Appendix VII mentions that the All India Services matters would be heard by the Division Bench. Appendix VIII under the same Rule 154 dealing with the subject-wise classification of Single Bench cases mentions ltem (1) as Postings and Transfers. The petitioner’s case was of an order of transfer only which could, therefore, be heard by a Single member. However, this contention need not detain us long since the Supreme Court had occasion to consider an identical question in Indermani Kirtipal v. Union of India and others, reported at . Dealing with the competence of a single member to decide the matter relating to promotion, the Supreme Court held that the question is not of initial lack of jurisdiction. Since the matter was decided after considering the case on merits, the Supreme Court held that it was no longer open to the unsuccessful party to plead that the single member had no jurisdiction to decide the issue of that the order suffered from initial lack of jurisdiction. It may incidentally be mentioned here that no objection was raised before the learned Single member when he heard the petitioner on merits and decided the matter on 26th May 1997. In view of the above, we find no substance in this contention of Shri Singh.
21. We may also refer to the recent Supreme Court decision in L. Chandra Kumar v. Union of India and others, . While upholding the power of judicial review vested in the High Court under Article 226 of the Constitution of India as a part of the basic structure, the Supreme Court has observed that the requirement of approaching the tribunal would ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which would be of use to it in finally deciding the matter. We must also remember the limitations of the power of judicial review. One such limitation is that we cannot sit in appeal over the order of the Tribunal. In the view that we have taken, we do not find that the order of transfer is either vitiated by mala fides, which was the main attack of Shri Singh or by breach of any provision of law or rule. There is, thus, no merit in the writ petition.
22. We may indicate that after we had heard the matter initially on 2nd July 1997, the petitioner had expressed a desire to make a representation to the State Government pursuant to the directions contained in para 11 of the order of the Tribunal. The petitioner made such a representation which has been considered on merits and has been rejected. However, no submissions were made before us in respect of the said rejection of his representation. This was relating to the posting of the petitioner at the place where his wife is working so as to ensure that both the spouses are posted at the same place. We have already indicated the approach of the Supreme Court in this behalf, which makes it clear that there is no right in a Government servant to insist that both the spouses shall be posted at one and the same place. In any view of the matter, we find no merit in the writ petition which is accordingly, rejected.
23. Petition dismissed.