Supreme Court of India
AIRPORTS AUTHORITY OF INDIAversusRAJEEV RATAN PANDEY & ORS.
- Citation
- 2009 INSC 1048
- Decided
- 17 August 2009
- Disposal
- Appeal(s) allowed
Holding
In transfer orders of government employees, the burden of proving mala fides rests on the party alleging it, and absent convincing material, courts will not interfere with the transfer, rendering the High Court's stay erroneous.
Summary
Senior Manager Rajeev Ratan Pandey was transferred by the Airports Authority of India from Lucknow to Calicut. He challenged the transfer in a writ petition, alleging it violated the Authority's transfer policy, but did not initially claim any mala fides. After the High Court refused an interim stay, he filed a supplementary affidavit alleging that the transfer was made in bad faith, prompting the High Court to stay the order. On appeal, the Supreme Court held that judicial review of government employee transfers is limited and that the burden of proving mala fides lies on the party making the allegation, which must be supported by convincing material. Since the allegation of mala fides was raised only in a supplementary affidavit and was unsupported, the High Court’s stay was erroneous. The Supreme Court set aside the interim order, allowing the transfer to stand.
Issues considered
- Whether a High Court can stay a government employee's transfer order on the basis of alleged mala fides raised in a supplementary affidavit.
- What is the scope of judicial review of transfer orders of government employees.
- Who bears the burden of proving mala fides in transfer cases and what standard of proof is required.
Legislation cited
- Constitution of Indias. Article 136, s. Article 226
Subjects
transfergovernment employeejudicial reviewmala fidesinterim stayservice lawadministrative law
Judgment
[2009] 13 (ADDL.) S.C.R. 343
AIRPORTS AUTHORITY OF INDIA A
v.
RAJEEV RATAN PANDEY & ORS.
(Civil Appeal No. 5550 of 2009)
AUGUST 17, 2009
B
[TARUN CHATTERJEE AND R.M. LODHA, JJ.]
-"' SERVICE LAW:
Transfer - Writ petition before High Court challenging
order of transfer as violative of transfer policy - Later, a
c
supplementary affidavit filed alleging ma/a fides - High Court
by an interim order staying transfer - Held: In matters of
~
~
j._
. transfer of government employees scope of judicial review is
limited and courts would not interfere with a transfer order
lightly ~ The burden of proving ma/a fide is on the party w~o
D
alleges it - In the instant case, prima facie, the a/legation of
ma/a fide is an after thought - Besides, except a bald
statement, there is no convincing and cogent material on
record in proof of the allegation - High Court erred in staying
the order of transfer - Order of High Court set aside - E
Constitution of India, 1950 ..:.. Articles 136 and 226 - Judicial
review - Interim order - Interference with .
•
• Respondent no.1 filed a writ petition before the High
Court challenging the order of his transfer from Lucknow F
to Calicut as violative of the transfer policy, and prayed
for interim stay of the order of transfer. Initially, no stay
was granted. Subsequently, the respondent filed a
supplementary affidavit stating that the transfer order was
actuated with mala tides. Thereupon the High Court
G
passed an interim order staying operation of the order of
~ transfer. Aggrieved, the Department filed the appeal.
Allowing the appeal, the Court
343 H
-
344 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A HELD: 1.1. In a matter of transfer of a government
employee, scope of judicial review is limited and I
High
Court would not interfere with an order of transfer lightly.
This is so because the courts do not substitute their own
decision in th~ matter of transfer. [Para 5) [347-F]
B 1.2. That the burden of proving mala-fides is on a
person leveling such allegations and the burden is
heavy, admits of no legal ambiguity. In the instant case,
at the threshold, no allegations of mala fides have been
pleaded in the writ petition. It is only by way of a
C supplementary affidavit that allegations of mala fides have
been put forth by respondent no. 1 but even such
aHegations are not supported by any material
whatsoever, leave aside any convincing and cogent
material. Therefore, the plea of mala fides hardly deserved
D ·acceptance, prima facie, justifying stay of operation of a
transfer order. [Para 5]'[346-G-H; 347-A-D]
2. Ordinarily, this Court would not entertain a matter
arising out of an ad-interim order, but since U is founded
on a plea which apparently is afterthought, the Court is
E constrained to interfere with the matter. Accordingly, the
impugned order is set aside. [Para 4 and 6] [346-C-D; 347"
G-H] r
I.-
State of U.P. v. Gobardhan Lal (2004) 11 SCC 402,
F relied on.
Arvind Dattatraya Dhande v. State of Maharashtra & Ors.
(1997) 6 sec 169, held inapplicable. .c
Case Law Reference:
(200.4) 11 sec 402 relied on Para 5
(1997) 6 sec 169 held inapplicable Para 5
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 5550 of 2009.
AIRPORTS AUTHORITY OF INDIA v. RAJEEV RATAN 345
PANDEY & ORS.
From the Judgment & Order dated 03.07.2009 of the High A
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Writ Petition No.820 of 2009.
Gopal Subramanium, S.G., Atul Nanda, Rameeza Hakeem
Law Associates & Co. for the Appellant.
B
Shail Kr. Dwivedi, AAG, Anuvrat Sharma Vandana Mishra,
Alka Sinha, for the Respondents.
The Judgment of the Court was delivered by
~-·
R.M. LODHA, J. 1. Leave granted.
c
2. This appeal by special leave is directed against an ad-
interim Order dated July 3, 2009 whereby the Division Bench
of the High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow stayed the operation of transfer order dated May 15,
>•
2009. D
J. 3. Rajeev Ratan Pandey, Senior Manager, Engineering
(Civil), Respondent No. 1, vide order dated May 15, 2009,
came to be transferred from Lucknow (Northern region) to
Calicut (Southern region) by the appellant. The Respondent No.
1 challenged the order of transfer by filing a writ petition before E
the High Court on the grounds, viz., that the order of transfer
has been issued against the transfer policy inasmuch as it
provides that the inter-regional transfers shal( not be made
"'
-f' . before the incumbent completes at least five year tenure in that
region; that the official shall not normally be transferred within F
region second time unless all others in that cadre have done
one turn of out of region transfer; that except in cases where
operational/administrative reasons warrant, transfers shall
normally be avoided and transfer when made shall be in
accordance with the seniority at the station in the region. He G
made a representation to the Competent Authority on May 25,
2009 for cancellation of his transfer. On May 28, 2009, the
~
Respondent No. 1 was relieved from his posting at Lucknow.
His representation came to be rejected by the Authority on June
2, 2009. In the writ petition initially no interim order of stay was H
I
346 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A granted. It transpires from the record that on June 9, 2009 he
sent a letter to the Director, Airport Authority, Calicut that he )...
was Lmder medical treatment and the doctor has advised him
some rest. He informed the said Authority that he would join
duties at Calicut Airport as soon as he got well. He did not join
B his duties at Calicut Airport and on July 3, 2009 filed a ~
supplementary affidavit before the High Court alleging therein
for the first time that the transfer order was actuated with mala-
fides. On that day itself, i.e., July 3, 2009, the Division Bench
passed an ad-interim order staying the operation of the transfer ~
c order dated May 15, 2009.
4. Ordinarily, we would not have entertained a matter
arising out of an· ad-interim order but since it is founded on a
\
plea which apparently is afterthought, we are constrained to
I
interfere with the matter. In prima facie view of the Division
D Bench, the order of transfer suffers from strong mala-fides but 1~
the fact of the matter is that in the entire petition, there is not
~
even whisper of mala-fides against the Authority. The writ
petition was filed by the Respondent no. 1 on June 1, 2009
which contains no allegation that the transfer order has been
E issued maliciously. For the first time in a supplementary affidavit
filed on ,July 3, 2009, the allegations 0f mala-fides have been .r
made by the Respondent No. 1. Prima facie, we have no doubt
r
that the allegations of mala-fides are afterthought. Moreover,
except the bald statement in the supplementary affidavit, there .,.
't-
F is no convincing and cogent material placed by the Respondent
No. 1 in proof thereof.
"·
5. IQ the case of State of U.P. v. Gobardhan La/1, while
dealing with a matter of transfer, this Court observed that
allegations of mala-fides must inspire confidence of the Court
G and ought not to be entertained on the mere asking of it or on
~
consideration borne out of conjectures or surmises and except
for strong and convincing reasons, no interference would ~
ordinarily be made with an order of transfer. That the burden
of proving mala-fides is on a person leveling such allegations ?'
H 1. (2004) 11 sec 402.
AIRPORTS AUTHORITY OF INDIA v. RAJEEV RATAN 347
PANDEY & ORS. [R.M. LODHA, J.]
and the burden is heavy, admits of no legal ambiguity. Mere A
assertion or bald statement is not enough to discharge the
heavy burden that the law imposes upon the person leveling
allegations of mala-fides; it must be supported by requisite
materials. In the present case, as noticed above, at the
threshold, no allegations of mala-fides have been pleaded in B
the writ petition. It is only by way of a supplementary affidavit
that allegations of mala-fides have been put forth by the
Respondent No. 1 but even such allegations are not supported
by any material whatsoever. In a matter such as the present one
where plea of mala-fides is not made in the writ petition and c
the assertion of mala-fides is made for the first time in a
supplementary affidavit which too is not supported by any
convincing and cogent material, the plea of mala-fides hardly
deserved acceptance, prima facie, justifying stay of operation
of a transfer order. The High Court has referred to a decision
0
of this Court in the case of Arvind Oattatraya Dhande v. State
of Maharashtra & Ors. 2 but in what we have said above, that
decision cannot be applied to the facts of the present case. In
the writ petition, the transfer order has been assailed by the
present Respondent No. 1 on the sole ground that it was
violative of. transfer policy framed by the appellant. The High . E
Court, did not, even find any contravention of transfer policy in
transferring the Respondent No. 1 from Lucknow to Calicut. In
a matter of transfer of a government employee, scope of judicial
review is limited and High Court would not interfere with an
order of transfer lightly, be it at interim stage or final hearing. F
This is so because the courts do not substitute their own
decision in the matter of transfer. In the present case, High
Court fell into a grave error in staying the transfer order which,
if allowed to stand, may cause prejudice to the administrative
functioning of the appellant. G
6. Appeal is, accordingly, allowed. The impugned order
dated July 3, 2009 is set aside. No order as to costs.
R.P. Appeal allowed.
2. (1997) 6 sec 169. H
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