Swapna Poddar vs Andaman & Nicobar Administration & Others.

The Court:

This Writ application is directed against the order dated 29th January, 2019 passed by the Central Administrative Tribunal, Calcutta Bench, by which the application filed by the Writ petitioner challenging the order of transfer was dismissed.

The grievance of the petitioner before the Tribunal appears to be that she was transferred to a remote place within seven months from her present posting.

The applicant had joined as GTT/PGT under the Directorate of Education in 1985 and her last posting was at SSS Manglutan, South Andaman, Port Blair from 1st August, 2017. The respondent authorities issued a transfer order on 13th March, 2018 by which the applicant was sought to be transferred from her present place of posting as Vice Principal, SSS Manglutan, Port Blair to SS Mus, Car Nicobar a remote posting within 7 months of the present posting. The applicant only had 4 years of service left prior to superannuation and there was no justification for the authorities to transfer the petitioner from his present posting to a remote place only 7 months after the applicant had joined the present posting. The applicant contends that although the applicant earlier filed Original Application being OA No.351/00429/2018 against her transfer from SSS Manglutan the respondent authorities by its office order dated 13th March, 2018 in which an order was passed on 28th March, 2018 directing the respondent authorities more particularly the Chief Secretary to consider the representation made by the petitioner before the authorities for consideration of her case and for cancellation of her transfer order by keeping in mind the transfer guidelines the representation instead was considered by the Director, Education, Andaman & Nicobar Administration. Since the reasoned order was passed by an authority other than the Chief Secretary the said order is non-est and is liable to be set aside. The reasoned order is a product of malice in law and malice in fact and passed on extraneous consideration. Before the Tribunal it is submitted on behalf of the present applicant that the applicant's child is studying in Class XI and her spouse is posted in a non-transferable post at Port Blair. The applicant could not have been posted earlier in Car Nicobar zone. There was no Bengali Medium School at Car Nicobar and hence she could not be penalised with a posting to the said remote zone as the fag end of her service career.

The respondent authorities in support of the reasoned order has submitted that the applicant's tenure profile vis-a-vis the mandated profile under the transfer policy of the respondents requires that the applicant be transferred to the Zone - II where she had never served and that her transfer was based absolutely on station seniority. Regarding the non-transferrable posting of the spouse the respondents referred to Sub-paragraph 2 (VIII) of the prevalent transfer guidelines which states that consideration a large number of teachers having their spouse working in non-transferrable Government service at Port Blair the tenure fixed for other categories and teachers in different zones and their cases of transfer back to earlier posting or to other zone can be considered only after they have completed half the tenure in such zone (subject to completion of academic session) and hence with the applicant having never served Zone-II, the question of her completion of half the tenure or tenure in Port Blair on spouse ground does not arise. The respondents have further gone on to state that GSSS Manglutan is a low enrolment school wherein one Principal and two Vice-Principals have been retained by virtue of Court's order and there are about 40 schools under the Administration in the Educational Zone I, II and III which are functioning without any regular Principals and Vice-Principals.

The main issue before the Tribunal was whether the speaking order dated 19th July, 2018 is illegal.

The Tribunal in the impugned order has closely examined the contents of the representation dated 19th March, 2018 and the speaking order dated 19th July, 2018 in the light of the representation made to find out if the said order is perverse or suffers from illegality. The petitioner in the representation had urged four grounds for reconsideration of the transfer order viz.-

(a) That the applicant had been serving for 11 years in different schools in Middle and North Andaman.

(b) That the applicant was transferred to GSSS Manglutan during August 2017 and that within seven months of posting at GSSS Manglutan had been again transferred to GSS Mus, Car Nicobar although the posting tenure at South Andaman is five years.

(c) Because the applicant was a Bengali Medium teacher, she could not be posted at Nicobar during her spouse's posting therein as there was no Bengali Medium School at Car Nicobar at that point of time.

(d) The applicant has only four years of service left to superannuate.

As to whether the authority concerned has properly applied its mind to the representation the Tribunal considered the transfer guidelines dated 05th December, 2014. The notification dated 5th December, 2014 inter alia stipulates continuous posting of teaching staff for two years for Little Andaman and for Long Island continuous posting tenure of three years. Hence for Zone V the minimum continuous tenure of a teaching staff would be five years. The clauses VII and VIII of the notification deals with transfer on spouse grounds which reads:-

(vii) Normally the request of teachers officials whose spouses are also working in the Education Department for posting in the same station shall be considered sympathetically subject to availability of vacant posts for both of them at the station. The request for posting them together in Zone V & VI shall be considered provided they have completed their tenure in Zone-I to IV. Otherwise, their cases will normally be considered for costing together in outlying areas. Similarly request of one of the spouses to allow to continue in a particular area will be decided on merit basis.

(viii) Considering that a large number of teachers have their spouses working in non-transferable Govt. Service at Port Blair, it may not be possible to continuously keep the teachers posted at Port Blair. However, tenure will be reduced to half of the tenure fixed for other categories (except Zone-IA) of teachers in different Zones and their cases for transfer back or other Zones can be considered after they have completed half the tenure prescribed for Zone (Subject to completion of academic session).

The order of the Director of Education was examined after detailed consideration of notification dated 5th February, 2014. In fact, the Tribunal by its earlier order dated 28th March, 2018 directed the Chief Secretary to consider the case of the applicant by keeping in mind the transfer guidelines. It was for this purpose the Tribunal had referred to the transfer guidelines before examining the order of the Director of Education. The Director of Education in disposing of the representation had taken into consideration the minimum service a teacher is required to render in each zone and compared it with the transfer guidelines to decide the representation of the applicant. On the basis of undisputed posting of the petitioner that the applicant had never served in any of the zones, namely, the Zone I, Zone II and Zone III in her entire service career and that the applicant had enjoyed 3.7 years of additional service at Port Blair inasmuch as the transfer orders were issued entirely on the basis of the applicant's station seniority at South Andaman area the Tribunal did not find any perversity in the speaking order passed by the Director.

The Tribunal has correctly pointed out that the applicant's contention that she could not be posted at Nicobar, when her husband was posted at Port Blair and due to her child's ongoing education were not part of the representation made before the authority concerned. As this was never urged in the representation there was no occasion for the authority concerned to consider such issues. However, the Tribunal considered the said issue, in the light of the prevalent transfer guidelines on spouse grounds and refused to consider the same as a ground for allowing her to continue in the present posting. The Tribunal has taken into consideration that there are 40 educational institutions which are without any regular Principal/ Vice-Principal and a low enrolment school such as SSS Manglutan is saddled with one Principal and two Vice- Principals. The applicant has not able to justify from her service conditions which would allow her a permanent tenure at Port Blair to adjust her posting with a non-transferrable posting of her spouse. Moreover, VII and VIII of the notification dated 5th December, 2014 has not been complied with. On such consideration in our view the Tribunal was justified in holding that the service conditions of the applicant do not permit her to continue to function as the Vice-Principal of a low enrolment school when about 40 other educational institutions are without any Principal or Vice-Principal and on administrative exigencies such transfer was made. Moreover, both transfer policy of 2007 and 2017 referred to zonal tenure which implies aggregate tenure in all schools included in a zone. The Tribunal has relied upon the Apex Court decisions on the scope of judicial review on transfer viz. Union of India v. S.L. Abbas (1993) 4 SCC 357, State of Haryana v. Kashmir Singh 2010 (7) Supreme 666, Rajendra Roy v. Union of India, 1993(1) SCC 148 and Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 165 and has correctly held that in absence of any mala fide or where a transfer order has not been made in violation of statutory provisions an order of transfer issued on administrative reasons cannot be interfered with in judicial review. The applicant could not establish that the transfer order dated 13.3.2018 and the consequent speaking order dated 19.7.2018 reiterating the same were violative of either the 2007 or the 2014 transfer guidelines. In view of the fact that the respondent authorities acted in terms of the policy guidelines no mala fide can be alleged against the respondents.

In course of the argument Mr. Samanta, learned Counsel representing the applicant has referred an order dated 11th September, 2018 passed by the Central Administrative Tribunal in the present OA in which the respondents were directed to file affidavit disclosing the grounds of transfer of the applicant before completion of the term in terms of the transfer policy of 2014 and has argued the respondents has not disclosed the grounds of such transfer in the affidavit. Apart from the reasons disclosed in the order dated 19th July, 2018 in Para 17 of the affidavit-in-opposition filed by the respondents no.2,3,4,5 and 6 the said respondents have stated that prior to her transfer to Govt. SSS Manglutan, she was serving in the capacity of Principal, a Group - A Officer promoted on ad-hoc basis. However, due to administrative reasons the ad-hoc promotion could not be extended further, as such she was demoted to the post of Vice-Principal along with some others and thereafter was adjusted to the present school without considering the tenure of the applicant at Port Blair. Subsequently, she was transferred and posted appropriately during the General Transfer of 2018 as per the exigencies of the Department in accordance with the Transfer guidelines.

The applicant also in her pleadings could not furnish any particulars which could persuade the Tribunal to hold that the impugned orders are vitiated by malice in law or malice in fact.

It is not the case of the petitioner that there was actual malicious intention on the part of the administration in makin the alleged wrongful order of her transfer so as to amount to malice in fact.

Malice in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives (Halsbury's Laws of England (Simond's Edition 3rd Vol. 25 page 356) Gaylord Restaurant and Others v. M. Chabbrai, AIR 1975 Mad 108.

Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields reported in (1914) AC 808, 813:

A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently.

Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. [See: Smt. S.R. Venkataraman v. Union of India and another reported in (1979) 2 Supreme Court Cases 491]

Malice means the presence of some improper and wrongful motive-that is to say an intend to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage. S.T. Sahib v. N. Hasan Ghani-Saihib, AIR 1957 Mad 646, 656.

An act lawful in itself is not converted by malice into an actionable wrong, Allen v. Flood, 1898 AC 1.

The expression 'malice' or mala fides in the facts of each case, can only be appreciated from records. There cannot possibly be any set of guidelines in regard to the proof of mala fides. Mala fides depends upon its own facts and circumstances. There must be factual support for the allegations of mala fides. Mere user of the word mala fide would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion, Parboth Sagar v. Punjab SEB, AIR 2000 SC 1684: (2000) 5 SCC 630.

The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others". [See:- State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739]

In R.S. Garg v. State of U.P., reported in (2006) 6 SCC 430, at page 448 it is stated: "Malice" in its legal sense means malice such as may be assumed for a wrongful act done intentionally but without just cause or excuse or for one of reasonable or probable cause. The term "malice on fact" would come within the purview of the aforementioned definition.

In Ravi Yashwant Bhoir v. Collector reported in (2012) 4 SCC 407: AIR 2012 SC 1339, while dealing with the issue of legal malice the Apex Court explained the concept of legal malice in the following words:-

"47. ... 'Legal malice' or 'malice in law' means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.

Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for 'purposes foreign to those for which it is in law intended.' It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law."

In the context of an order of transfer what could constitute a malice in law and in fact the Apex Court in Somesh Tiwari v. Union of India, reported in (2009) 2 SCC 592 has observed:

"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

In Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC 524, the requirements to plead and prove 'Malafide' has been lucidly stated at page 536. It reads:

The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision-maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.

The legal position in this regard is fairly well settled by a long line of decisions of this Court. We may briefly refer to only some of them:

26.1. In State of Bihar v. P.P. Sharma4 this Court summed up the law on the subject in the following words: (SCC p. 260, paras 50-51)

"50. 'Mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."

In Purushottam Kumar Jha v. State of Jharkhand reported in (2006) 9 SCC 458 : 2006 SCC (L & S) 1840 Thakker, J. speaking for the Bench stated the law, thus: (SCC p. 466, para 23)

"23. It is well settled that whenever allegations as to mala ides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material particulars, the court is not expected to make 'fishing' inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is 'very heavy'. Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be 'made than made out' and hence it is necessary for the courts to examine it with extreme care, caution and circumspection. It has been rightly described as 'the last refuge of a losing litigant'. (Vide Gulam Mustafa v. State of Maharashtra12 and Ajit Kumar Nag v. Indian Oil Corpn. Ltd)"

The authorities in the instant case cannot be said to have acted arbitrarily or with malice. Moreover, the applicant has been in Zone 5 for 9.08 years and cannot establish that her transfer from one particular educational institution after seven months within Zone 5 is premature or in violation of any transfer policy.

Although much hue and cry has been raised on behalf of the applicant that the order passed by the Director of Education is non-est as the Chief Secretary was specifically directed to consider the representation we called for the record and on examination of the record it appears that the order was issued with the consent approval and concurrence of the Chief Secretary. There is an endorsement in the file which reads "approved, please issue", duly signed by the Chief Secretary on 16th July, 2018. On such consideration we are unable to accept the submission on behalf of the applicant that the order dated 19th July, 2018 is non-est.

Under such circumstances we find no reason to interfere with the well reasoned order of the Tribunal. The writ petition stands dismissed. In the event the applicant has not joined the transferred post she should do so within a period of 30 days from date.