# Matadin Maurya v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1049
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-26
- **Case number:** Service Bench No. 1163 of 2014
- **Bench:** Sanjay Misra, Brijesh Kumar Srivastava-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matadin-maurya-v-state-of-u-p-ors-43071
- **Pages:** 17

## Headnote

Constitution of India, Art.-26- Service
Law-transfer from Allahabad to Lalitpurchallenged on ground of Malice in lawMalice in law and malice in factexplained-Court find that considering
representation-the
consolidation
commissioner
already
modified
the
transfer from Lalitpur to Kaushambi-as
his wife working as teacher in Arya
kanya Inter College-owned by private
management-no possibility of transfer in
future-moreover Kaushambi being part
of Dist. Allahabad-transfer order already
modified-no further interference by Writ
Court required-petition dismissed.

Held: Para-51, 52 & 59

## Text

_Characters 0–39,905 of 56,246. This is a partial read: ask again with offset=39905 for what follows._

3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1049
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2014

BEFORE
THE HON'BLE SANJAY MISRA, J.
THE HON'BLE BRIJESH KUMAR SRIVASTAVA-II, J.

Service Bench No. 1163 of 2014

Matadin Maurya ..Petitioner
Versus
State of U.P. & Ors. . ..Respondents

Counsel for the Petitioner:
Sri Kumar Ayush, Sri Dhirendra Singh
Sri K.S. Pawar

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-26- Service
Law-transfer from Allahabad to Lalitpurchallenged on ground of Malice in lawMalice in law and malice in factexplained-Court find that considering
representation-the
consolidation
commissioner
already
modified
the
transfer from Lalitpur to Kaushambi-as
his wife working as teacher in Arya
kanya Inter College-owned by private
management-no possibility of transfer in
future-moreover Kaushambi being part
of Dist. Allahabad-transfer order already
modified-no further interference by Writ
Court required-petition dismissed.

Held: Para-51, 52 & 59
51. We are of the view that violation of
administrative guidelines contained in
the transfer policy does not give any
right to an employee to assail its validity
in court of law nor would the court
interfere on such grounds.

52. As far as malice in law is concerned,
it has to be shown that it is a deliberate
and disregard the right of others and the
order in question would attract the
principles of malice in law if it was
passed on irrelevant grounds.
59. From the above discussions, we are
of the view that the order impugned
dated 13.08.2014 has been passed by
the
competent
authority
after
considering the request of petitioner's
wife and that too in compliance of the
order of Division Bench of this Court
passed in Writ Petition No. 941 (SB) of
2014.
Accordingly
no
case
for
interference is made out and the writ
petition is liable to be dismissed. It is
accordingly dismissed.

Case Law discussed:
W.P. No. 941(SB) of 2014; 2009 (2) SCC 592;
[2003(11) SCC 740]; (1914) AC 808; (1890)
24 QBD 371; AIR 1979, SC 49; JT 2009 (13)
SC 643; JT 2007 (3) SC 112; [2006(6) SCC
430];[AIR 2012 SC 1339]; W.P. No. 36211 of
2013; [1974 (2) SCR 348]; [1986 (4) SCC
131]; [AIR 2004 Supreme Court 2165]; [AIR
2005 SC 3341]; [2004 RD-AH 572]; [JT 1994
(5) SC 298].

(Delivered by Hon'ble B.K. Srivastava-II, J.)

1. The brief facts of the case are that
initially the petitioner was appointed as
Assistant Consolidation Officer in the
year 1994 and had worked on the said
post since 07.09.1994 to 24.07.1997 at
district Banda and thereafter he has been
promoted on the post of Consolidation
Officer and had worked since 25.07.1997
to 24.07.2004 at district Azamgarh and in
District Hamirpur from 05.07.2008 to
20.05.2012 and in district Lucknow from
21.05.2012 to 25.07.2012 and thereafter
he has been further promoted on the post
of Settlement Officer consolidation and
posted at Allahabad since 26.07.2012 till
the passing of the transfer order dated
26.06.2014 whereby the petitioner has
been transferred from District Allahabad
to Lalitpur.

2. Against the transfer order dated
26.06.2014, the wife of the petitioner,
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
who claims to be an Assistant Teacher in
Arya
Kanya
Intermediate
College,
Allahabad has made a representation
dated 27.06.2014 before the respondent
no.1-Principal
Secretary,
Revenue
Department, U.P. Lucknow stating therein
that she is also a government servant
posted in Allahabad, hence in light of
Clause 1-D of the transfer policy, the
petitioner is entitled to be transferred at
the said place and further that the
prescribed period under the policy having
not expired, it would be a mid term
transfer insofar as it relates to the
petitioner. Thereafter the petitioner has
filed Writ Petition No. 941 (SB) of 2014
[Matadin Maurya Vs. State of U.P. and
others] and the Division Bench of this
Court after hearing the learned counsel for
the parties on 07.07.2014 has passed the
following order:

"We have heard Sri Kumar Ayush,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents no. 1, 2 and 3. Notice need
not be issued to the respondent no.4 in
view of the order being passed herein.

The petitioner is aggrieved by the
order dated 26.06.2014 passed by the
Commissioner
Consolidation,
Uttar
Pradesh, Lucknow, respondent no.2 as
contained in Annexure-1 to the writ
petition.

Learned counsel for the petitioner
has submitted that the Transfer Policy
dated 04.06.2014 filed as Annexure-5 to
the writ petition provides that when the
husband and wife both are government
servant then as far as possible they should
be transferred at the same place. Learned
counsel for the petitioner states that the
petitioner has been posted as Settlement
Officer, Consolidation, Allahabad since
past two years and as such in light of the
Transfer Policy, the petitioner could not
have been transferred prior to expiry of
the prescribed period given therein.
Learned counsel for the petitioner has
referred to Annexure-6 to the writ
petition, which is a representation made
on 27.06.2014 by the wife of the
petitioner, who claims to be an Assistant
Teacher in Arya Kanya Intermediate
College, Allahabad and therefore, submits
that when the wife of the petitioner is also
a
government
servant
posted
in
Allahabad, hence in light of Clause 1-D of
the transfer policy, the petitioner is
entitled to be transferred at the said place
and further that the prescribed period
under the policy having not expired, it
would be a mid term transfer insofar as
the petitioner is concerned.

We find from the record that the
transfer policy has provided that as far as
possible the husband and wife, if they are
both government servant should be posted
at the same place and no representation
can be made by the Government Servant
against his transfer in light of Clause 14
of the said transfer policy. We are aware
that the transfer policy is not enforceable
in law however, the transfer policy which
has been brought out by the Government
is for the benefit of the employee and we
find no reason as to why the Authority
would not consider the grievance of the
wife of the petitioner who also claims to
be a government servant.

Under such circumstances, we find
that the petitioner's wife has already
made a representation dated 27.06.2014
filed as Annexure-6 to the writ petition,
hence it would be appropriate that the
respondent
no.2,
Consolidation
Commissioner, U.P. Lucknow should
consider
the
representation
of
the
petitioner's wife in light of the transfer
policy dated 04.06.2014 and particularly
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1051
consider the entitlement of the petitioner
in view of Clause 1-D of the said policy.

The Consolidation Commissioner,
U.P.
Lucknow should
consider
the
representation by passing a reasoned
order preferably within two weeks from
the date a certified copy of this order
alongwith representation is served upon
him.
The
order
so
passed,
be
communicated to the petitioner forthwith.

The order impugned shall therefore,
be subject to the result of the decision so
taken
by
the
Consolidation
Commissioner, U.P. Lucknow.

However, in case the petitioner is
aggrieved by such order he shall have
liberty to avail the remedy available to
him in law against such decision taken by
the Authority.

The writ petition stands disposed of.

No order is passed as to costs."

3. Thereafter the wife of the
petitioner through her representation
dated 11.07.2014 has served the certified
copy of the order dated 07.07.2014 in the
office of respondent no. 2, which has been
received in the office on 16.07.2014. In
the said representation the wife of the
petitioner has stated that she is working as
Assistant Teacher in Arya Kanya Inter
College, Mutthiganj, Allahabad. Her
daughter and son are studying in class
11th and 8th respectively. Her father-inlaw had died and her mother-in-law aged
85 years is living with her. Her mother-inlaw often remains ill and she is also the
patient of Thyroid, High Blood Pressure
and Depression, therefore, keeping in
view the devotion, hard working and
honesty of her husband, prays that the
transfer of her husband from district
Lalitpur be cancelled and if possible he
may be posted at Varanasi, Kaushambi or
Kanpur.

4.

The
respondent
no.2Consolidation
Commissioner,
Uttar
Pradesh, Lucknow in compliance of the
order of this Hon'ble Court dated
07.07.2014 and keeping in view the
transfer policy dated 04.06.2014 and also
considering the problem of the wife of the
petitioner vide impugned order dated
13.08.2014 the respondent no. 2 disposed
of the representation of the wife of the
petitioner, whereby he has altered the
transfer order dated 26.06.2014 and the
petitioner has been given posting at
district Kaushambi on the post of
Settlement Officer Consolidation in place
of district Lalitpur.

5. Learned counsel for the petitioner
submits that the impugned order has been
passed as a measure of punishment.
Clause 1-D of the transfer policy dated
04.06.2014 has not been complied with as
the grievance of the wife of the petitioner
that she is working as Assistant Teacher
in Arya Kanya Inter College, Mutthiganj,
Allahabad has not been considered.
Further the respondent no. 2 while
passing
the
impugned
order
dated
13.08.2014 has not considered the fact
that the children of the petitioner are also
studying
at
Allahabad.
His
further
submission is that the respondent no. 2
has clearly ignored Clause 1-D of the
transfer policy wherein it has been
provided that in case the husband and
wife both are government servant then if
possible they should be posted at one
place.

6. Learned counsel for the petitioner
vehemently argued that the passing of the
impugned order transferring the petitioner
to district Kaushambi clearly shows the
bias attitude of the respondent authorities
as in the impugned order the respondent
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 2 has mentioned that the petitioner has
weak administrative control over the
subordinate staff, careless in performing
the duty, failed in achieving the desired
target and public interest were shown as
the cause for transfer of the petitioner.

7. Further argument of learned
counsel for the petitioner is that the bias
and malafide attitude of the respondents
are further fortified by the minutes of the
meeting dated 29.01.2014 and Sections
23, 27 and 52 of the U.P. Consolidation of
Holdings Act, clearly show that the
progress of approximately 20 districts was
zero and in the said minutes the name of
district Allahabad does not find place and
as such the impugned order of transfer has
been passed as a measure of punishment.

8. In support of his submissions
learned counsel for the petitioner has
placed reliance on the judgment of the
Apex Court rendered in the case of
Somesh Tiwari Vs. Union of India and
others 2009 (2) SCC 592 in which in
paras 19 and 20 the Apex Court held that
" 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 punishment. When an
order of transfer is passed in lieu of
punishment, the same is liable to be set
aside being wholly illegal". He further
submits that from the perusal of the
transfer order it appears that the same has
been passed in work interest public
interest, whereas in fact it is based on
complaint and so called enquiry report by
way of punishment as is apparent from
the consequential order dated 13.08.2014
which is impugned in this writ petition. It
is also stated that the impugned order of
transfer is totally based on malice in law
as is apparent from the impugned order
itself.

9. Learned counsel for the petitioner
further placed reliance on the judgment of
the Apex Court rendered in the case of
Sarvesh Kumar Awasthi Vs. U.P. Jal
Nigal and others [2003(11) SCC 740]
wherein the Apex Court held as under:

"Laying down the transfer policy for
I.A.S. And P.C.S. Officers would be
strictly adhered to. In this view of the
matter, this petition would not survive and
stands disposed of accordingly. If any
other officer is having any grievance, it
would be open to him to approach the
appropriate forum."

10. He submits that before the Apex
Court the Chief Secretary, State of U.P. has
given an undertaking and affidavit to frame
the transfer policy and to adhere the same
and thus the Consolidation Commissioner,
U.P. cannot be allowed to pass such a
transfer order contrary to what has been
stated by the State Government before the
Apex Court in Sarvesh Awasthi's case and as
such the impugned order is in gross violation
of the undertaking given by the State
Government and is liable to be set aside.

11. It is also submitted by the
learned counsel for the petitioner that the
State Government keeping in view the
decision of the Apex Court rendered in
the case of Sarvesh Awashti (Supra) has
issued
the
transfer
policy
dated
04.06.2014
and
further
the
State
Government/Consolidation Commissioner
passed the impugned order as a measure
of punishment totally ignoring the transfer
policy and as such the impugned order is
a punitive transfer and the same deserves
to be set aside and quashed.
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1053

12. Learned counsel has further
placed reliance on the judgment of the
Apex Court rendered in the case of
Arvind Dattatraya Dhande vs. State of
Maharashtra and others decided on
10.07.1997 in which the Apex Court has
quashed the transfer order which was
passed on the basis of some complaint
holding that the transfer order is not in
public
interest
but
is
a
case
of
victimization of a honest officer at the
behest of the aggrieved complainant.

13. Learned Standing Counsel on
the basis of counter affidavit has
submitted that the petitioner while posted
as
Settlement
Officer Consolidation,
Allahabad in the financial year 2013-14
has failed to achieve the annual target of
7320 acre as provided under Section 23 of
the Act, 15147 Gata as provided under
Section 27 of the Act and further annual
target of 13 villages as provided under
Section 52 of the Act. Further the
progress in consolidation work of the
petitioner remained very slow and most
unsatisfactory and due to this very reason
and the complaints made by Sri Santosh
Yadav, a villager before the higher
authorities regarding village Naika in
district Allahabad and also keeping in
view the enquiry report of the two
members committee dated 24.06.2014
vide order dated 26.06.2014 he has been
transferred from district Allahabad to
Lalitpur.

14. Further submission of learned
Standing Counsel is that the transfer of
the petitioner has been made in public
interest and also in the interest of the
Government work as such it cannot be
said that the transfer of the petitioner has
been made as a measure of punishment. It
is also submitted that the wife of the
petitioner
Smt.
Nivedita
in
her
representation claimed the benefit of
Clause 1-D of the transfer policy of the
year 20014-15 wherein it has been
provided that in case the husband and
wife both are Government Servant, if
possible, they should be posted at one
place.

15. Thereafter the petitioner has
preferred Writ Petition No. 941 (SB) of
2014 [Matadin Maurya Vs. State of U.P.
and others] wherein this Hon'ble Court
vide
order
dated
07.07.2014
while
disposing of the writ petition directed the
Consolidation
Commissioner
U.P.
Lucknow
should
consider
the
representation by passing a reasoned
order preferably within two weeks and the
order so passed be communicated to the
petitioner forthwith.

16. The certified copy of the order
dated 07.07.2014 has been served on the
respondent
no.
2-Consolidation
Commissioner, U.P. Lucknow through
representation dated 11.07.2014 made by
the wife of the petitioner wherein she
claimed the transfer of her husband at
district Allahabad and if it is not possible
he may be transferred to districts
Kaushambi, Varanasi and Kanpur where
the posts are lying vacant.

17. It is also submitted that in
compliance of the order of this Hon'ble
Court dated 07.07.2014 and also keeping
in view the option exercised by the wife
of the petitioner, the respondent no.2Consolidation
Commissioner,
U.P.
Lucknow vide order dated 13.08.2014
altered
the
transfer
order
dated
26.06.2014 whereby the petitioner has
been transferred to district Kaushambi
instead of district Lalitpur which is 50
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
Kms away from district Allahabad where
the wife of the petitioner is teaching in
Arya Kanya Inter College, Mutthiganj,
Allahabad and residing along with her old
mother-in-law and children. In pursuance
of the transfer order dated 13.08.2014, the
petitioner
has
been
relieved
on
01.09.2014 to join in District Kaushambi
on the post.

18. Again the petitioner has filed the
present writ petition praying for quashing
of the orders dated 26.06.2014 and
13.08.2014
passed
by
Consolidation
Commissioner, U.P. Lucknow and further
prayer is that not to transfer the petitioner
from the post of Settlement Office
Consolidation Allahabad to some other
place.

19. Learned Standing Counsel
submits that since the earlier transfer
order dated 26.06.2014 has already been
altered in compliance of the order of this
Hon'ble Court dated 07.07.2014 and vide
order dated 13.08.2014 the petitioner has
been given posting at district Kaushambi
as claimed by the wife of the petitioner,
therefore, the instant writ petition lacks
merit and is liable to be dismissed. He
further submits that the request of the
wife of the petitioner has been acceded
too and as such it does not suffer from
any infirmity. The order dated 13.08.2014
has
not
been
passed
by
way
of
punishment.

20. In specific reply to paragraph-13
of the writ petition, learned Standing
Counsel refers to supplementary counter
affidavit and submits that the progress in
consolidation work have been reviewed at
the directorate level and in all such
districts where the progress in disposal of
the consolidation matters was found slow
and unsatisfactory, the officers of such
districts
are
warned
to
speed
up
consolidation work. In the financial year
2013-14 consolidation work was revised
and in all such districts where the job
under Sections 23, 27 and 52 of the Act,
were found nil or zero, show cause
notices were issued to them and chargesheet have also been submitted before the
State Government against such officer.

21. In so far as the matter pertaining
to the cancellation of the transfer orders
of certain alleged officers is concerned,
keeping in view the D.O. letter dated
21.07.2014 of the District Magistrate,
Ballia, the transfer of Sri Radhey Shyam
Singh, Settlement Officer Consolidation
has been cancelled. The transfer order of
Sri B.N. Upadhyay has been cancelled
since he is handicapped and also
considering the D.O. letter of District
Magistrate Ghazipur. The transfer of Sri
Gynesh Tripathi has been cancelled
keeping in view his family circumstances.
The transfer of Sri Ram Kumar has been
cancelled on the basis of letter dated
17.07.2014
of
District
Magistrate,
Muzaffar Nagar as his retirement is due
within two years which is less than two
years.

22. We have heard Sri K.S. Pawar,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

23. From the perusal of the records,
it is evidently clear that the petitioner
while posted as Settlement Officer
Consolidation, Allahabad in the financial
year 2013-14 has failed to achieve the
annual target of 7320 acre as provided
under Section 23 of the Act, 15147 Gata
as provided under Section 27 of the Act
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1055
and further annual target of 13 villages as
provided under Section 52 of the Act.
Further the progress in consolidation
work of the petitioner remained very slow
and most unsatisfactory and due to this
very reason and the complaints made by
Sri Santosh Yadav, a villager before the
higher authorities regarding village Naika
in district Allahabad and also keeping in
view the enquiry report of the two
members committee dated 24.06.2014
resulting into passing of the order dated
26.06.2014 wheeby the petitioner has
been transferred from district Allahabad
to Lalitpur.

24. In the said report it has been
clearly mentioned that pursuant to the
undated complaint made by Sri Santosh
Yadav the work of the consolidation
authorities posted at district Allahabad
has been enquired and found that they
have assessed the ceiling land and the
same have been included in the land of
other tenure holders and further the land
of the scheduled castes and scheduled
tribes have been sold to other tenure
holders of the gram sabha concerned
without taking permission from the
District Magistrate and this has been done
only with a view to give undue advantage
to Bhoo Mafias and further keeping in
view all these things the transfer of the
petitioner has been made to district
Lalitpur.

25. Against the said transfer the
petitioner's wife made representation for
cancellation of the transfer order and
thereafter
petitioner
preferred
Writ
Petition No. 941 (SB) of 2014 claiming
the benefit of Clause 1-D of the transfer
policy. The Division Bench of this Court
vide
order
dated
07.07.2014
while
disposing of the writ petition directed the
Consolidation
Commissioner
U.P.
Lucknow to consider the representation
by passing a reasoned order preferably
within two weeks and the order so passed
be
communicated
to
the
petitioner
forthwith.

26. The wife of the petitioner served
a certified copy of the order dated
07.07.2014 on the respondent no. 2Consolidation
Commissioner,
U.P.
Lucknow through her representation dated
11.07.2014 wherein she claimed that her
husband should remain posted at district
Allahabad and if it is not possible he may
be transferred to districts Kaushambi,
Varanasi or Kanpur where the posts are
lying vacant.

27. In compliance of the order of this
Court dated 07.07.2014 and also keeping in
view the option exercised by the wife of the
petitioner,
the
respondent
no.2Consolidation
Commissioner,
U.P.
Lucknow vide order dated 13.08.2014
altered the transfer order dated 26.06.2014
whereby the petitioner has been transferred
to district Kaushambi instead of district
Lalitpur which is 50 Kms away from
district Allahabad where the wife of the
petitioner is teaching as Assistant Teacher
in Arya Kanya Inter College, Mutthiganj,
Allahabad and residing along with her old
mother-in-law and children. The present
writ petition has been filed for quashing of
the transfer orders dated 26.06.2014 and
13.08.2014 with further prayer not to
transfer the petitioner except Allahabad to
some other place.

28. In Somesh Tiwari (Supra)
dealing with the question of validity of an
order of transfer on the ground of malice
in law, the Apex Court in para 16 of the
judgment observed as under:
1056 INDIAN LAW REPORTS ALLAHABAD SERIES

"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."

29. In the case of Sarvesh Kumar
Awasthi (Supra), the State Government
has given its undertaking and pursuant to
the same the State Government has issued
transfer policy dated 04.06.2014. Clause
1-D of the said policy provides that in
case the husband and wife both are
government servant, if possible, they
should be posted at one place.

30. In the case of Arvind Dattatraya
Dhande (Supra) the Apex Court has
quashed the transfer order which was
passed on the basis of some complaint
holding that the transfer order is not in
public interest but the said proposition is
not applicable in the instant case because
the transfer of the petitioner has been
made as in the financial year 2013-14 the
petitioner has failed to achieve the annual
target of 7320 acre as provided under
Section 23 of the Consolidation of
Holdings Act, 15147 Gata as provided
under Section 27 of the Act and further
annual target of 13 villages as provided
under Section 52 of the Act. Further the
progress in consolidation work of the
petitioner remained very slow and most
unsatisfactory and further he has lost his
control over the subordinate staff of the
consolidation department and hence the
impugned order has been passed.

31. So far as the matter pertaining to
the cancellation of the transfer orders of
certain alleged officers is concerned, the
transfer of Sri Radhey Shyam Singh,
Settlement Officer Consolidation has been
cancelled keeping in view the D.O. letter
dated
21.07.2014
of
the
District
Magistrate, Ballia. The transfer order of
Sri B.N. Upadhyay has been cancelled
since he is handicapped and also
considering the D.O. letter of District
Magistrate Ghazipur. The transfer of Sri
Gynesh Tripathi has been cancelled
keeping in view his family circumstances.
The transfer of Sri Ram Kumar has been
cancelled on the basis of letter dated
17.07.2014
of
District
Magistrate,
Muzaffar Nagar as his retirement is due
within two years which is less than two
years but in the present case no such D.O.
letter has been issued in favour of the
petitioner and his transfer has been made
in public interest as he has failed to
achieve target in the financial year 201314,
hence
no
illegality
has
been
committed by the respondents in passing
the impugned orders.

32. The malice in law is quite a
distinct factor to malice of fact. The
power which is said to have been
exercised on account of mala fide may be
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1057
vitiated on account of either malice in fact
or malice in law. In Shearer Vs. Shields,
(1914) AC 808 at Page 813 Viscount
Haldane described "malice in law" as
under :-

"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." Again in
Pilling
v.
Abergele
Urban
District
Council (1950) 1 KB 636 Lord Goddard,
CJ said that where a duty to determine a
question is conferred on an authority
which state their reasons for the decision,
and the reasons which they state show
that they have taken into account matters
which they ought not to have taken into
account or that they have failed to take
matters into account which they ought to
have taken into account, the court to
which an appeal lies can and ought to
adjudicate on the matter."

Lord Esher M.R. in The Queen on
the Prosecution of Richard Westbrook vs.
The Vestry of St. Pancras, (1890) 24 QBD
371 at page 375 said :

"If people who have to exercise a
public duty by exercising their discretion
take into account matters which the
Courts consider not to be proper for the
guidance of their discretion, then in the
eye of the law they have not exercised
their discretion."

16. 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.

33. The Apex Court has summarised
"malice
in
law
"
in
(Smt.)
S.R.Venkatraman Vs. Union of India and
another, AIR 1979, SC 49 as under :

"It is equally true that there will be
an error of fact when a public body is
prompted by a mistaken belief in the
existence of a non-existing fact or
circumstance.
This
is
so
clearly
unreasonable that what is done under
such a mistaken belief might almost be
said to have been done in bad faith; and
in actual experience, and as things go,
these may well be said to run into one
another." (Para 8)

34. The Apex Court further in para 9
of the judgment in S.R. Venkatraman
(supra) observed:

"9.The
influence
of
extraneous
matters will be undoubted where the
authority making the order has admitted
their influence. It will therefore be a gross
abuse of legal power to punish a person
or destroy her service career in a manner
not warranted by law by putting a rule
which makes a useful provision for the
premature retirement of Government
servants only in the ''public interest', to a
purpose wholly unwarranted by it, and to
arrive at quite a contradictory result. An
administrative order which is based on
reasons of fact which do not exist must,
therefore, be held to be infected with an
abuse of power."

35. In Mukesh Kumar Agrawal Vs.
State of U.P. and others JT 2009 (13) SC
643 the Apex Court said :
1058 INDIAN LAW REPORTS ALLAHABAD SERIES

"We also intend to emphasize that
the distinction between a malice of fact
and malice in law must be borne out from
records; whereas in a case involving
malice in law which if established may
lead to an inference that the statutory
authorities had acted without jurisdiction
while exercising its jurisdiction, malice of
fact must be pleaded and proved."

36. In HMT Ltd. and another Vs.
Mudappa and others JT 2007(3) SC 112
the Apex Court in paras 18 and 19 defined
malice in law by referring to "Words and
Phrases Legally Defined, 3rd Edn.,
London Butterworths, 1989" as under:

"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."

"19. It was observed that where malice
was attributed to the State, it could not be a
case of malice in fact, or personal ill-will or
spite on the part of the State. It could only be
malice in law, i.e legal mala fide. The State,
if it wishes to acquire land, could exercise its
power bona fide for statutory purpose and
for none other. It was observed that it was
only because of the decree passed in favour
of the owner that the proceedings for
acquisition were necessary and hence,
notification was issued. Such an action could
not be held mala fide."

37. In brief the malice in law can be
said when a power is exercised for an
unauthorized purpose or on a fact which is
claimed to exist but in fact, is non-est or for
the purpose for which it is not meant though
apparently it is shown that the same is being
exercised for the purpose the power is
supposed to be exercised. (See Manager Govt.
Branch Press and another Vs. D.B.Belliappa
AIR 1979 SC 429; Punjab Electricity Board
Vs. Zora Singh and others AIR 2006 SC 182;
K.K.Bhalla Vs. State of U.P. and others AIR
2006 SC 898; P. Mohanan Pillai Vs. State of
Kerala and others (2007) 9 SCC 497;
M.P.State Corporation Diary Federation Ltd.
and another Vs. Rajneesh Kumar Zamindar
and others (2009) 6 SCALE 17; Swarn Singh
Chand Vs. Punjab State Electricity Board and
others (2009) 7 SCALE 622 and Sri Yemeni
Raja Ram Chandar Vs. State of Andhra
Pradesh and others JT (2009) 12 SC 198.

38. Further in the matter of R.S.
Garg Vs. State of U.P. [2006(6) SCC
430], the Hon'ble the Apex Court has
observed as under:

" '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 of fact' would come within the
purview of the said definition. Even,
however, in the absence of any malicious
intention, the principle of malice in law
can be invoked." (para 26)

39. In Ravi Yashwant Bhoir v.
District Collector, Raigad, [AIR 2012 SC
1339],The Hon'ble the Apex court while
dealing with the issue of 'Legal Malice'
held:

"Legal malice" or "malice in law"
means something done without lawful
excuse. It is a deliberate act in disregard
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1059
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 willfully 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 unauthorized
purpose constitutes malice in law." (Para37)

40. This Hon'ble Court in Writ
Petition No. 36211 of 2013 [Const.
Armourer Prakasha Nand Tiwari and two
others Vs. State of U.P. and four others]
in paragraph no. 25 has held as under:

"25. The oft quoted decision on this
aspect is Director of School Education,
Madras and others Vs. O. Karuppa
Thevan and another, 1994 Supp.(2) SCC
666 but the said decision has been
considered by a decision of Division
Bench of this Court in Special Appeal
No.1293 of 2005 (Gulzar Singh Vs. State
of U.P. & Ors.) decided on 7.11.2005 and
true import thereof has been explained as
under:

"The case before the Hon'ble Apex
Court pertains to education department
and while granting indulgence clearly
took into consideration the factum of
absence of any urgent exigency of service
in the case before it as it apparent from
the following:

"We are of the view that in effecting
transfer, the fact that the children of an
employee are studying should be given
due weight, if the exigencies of the service
are not urgent." (Para-2)"

"Even otherwise the Hon'ble Apex
Court in the above case observed that the
children of an employee are studying should
be given due weight. This shows that the
matter is to be examined by the employer as
to whether the transfer of an employee can
be deferred till the end of the current
academic session or not and not by the
Court. The Court has neither any means nor
sufficient material to assess as to whether
there
is
any
rule
or
urgency
of
administrative exigencies for necessitating
immediate transfer or that such transfer can
be deferred in a particular case. Therefore,
the Hon'ble Sizngle Judge has rightly
allowed liberty to the petitioner-appellant to
raise this grievance before the authority
concerned by making a representation, who
will consider and pass a reasoned order
thereupon."

The Hon'ble Apex Court in the case
of M. Sumithra (Dr.) V. Bangalore
University Jnana Bharathi [2006(109)
FLR 592] has held that-it is immaterial
whether it was done in good faith or bad
faith-If exercise of such power actuated
by
extraneous
considerations-same
constitutes malice in law.

41. Before we advert to the
submissions made by the learned counsel
for petitioner, it will be necessary in the
interest of justice to take note of the fact
and law regarding the scope and ambit of
interference in writ jurisdiction under
Article 226 of the Constitution of India,
while assailing an order of transfer.

42. The Hon'ble Apex Court in the
case of E.P. Royappa V. State of Tamil
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Nadu [1974 (2) SCR 348] has observed as
under:

"It is an accepted principle that in
public service transfer is an incident of
service. It is also an implied condition of
service and appointing authority has a
wide discretion in the matter. The
government is the best judge to decide
how to distribute and utilize the services
of its employees. However, this power
must be exercised honestly, bona fide and
reasonably. It should be exercised in
public interest. If the exercise of power is
based on extraneous consideration or for
achieving an alien purpose or an oblique
motive it would amount to mala fide and
colourable exercise of power. Frequent
transfers, without sufficient reasons to
justify such transfers, cannot, but be held
as mala fide. A transfer is mala fide when
it is made not for professed purpose, such
as in normal course or in public or
administrative
interest
or
in
the
exigencies of services but for other
purpose, that is to accommodate another
person for undisclosed reasons. It is the
basic principle of rule of law that good
administration, that even administrative
actions should be just and fair.

Further Hon'ble Apex Court in the
above cited case has held regarding
violation of Articles 14 and 16 of the
Constitution of India, which reads as
under:

"Articles 14 and 16 strike at
arbitrariness in State action and ensure
fairness and equality of treatment. They
require that State action must be based on
valid relevant principles applicable a like
to all similarly situate and it must not be
guided by any extraneous or irrelevant
considerations because that would be
denial of equality. Where the operative
reason for State action, as distinguished
from
motive
inducing
from
the
antechamber of the mind, is not legitimate
and relevant but is extraneous and outside
the area of permissible considerations, it
would amount to malafide exercise of
power and that is hit by Article 14 and 16.
Malafide
exercise
of
power
and
arbitrariness
are
different
lethal
radiations emanating from the same vice;
in fact the later comprehends the former.
Both are inhibited by Article 14 and 16.

43. In the case of Varadha Rao Vs.
State of Karnataka and Others [1986(4)
SCC 131], the Court has made following
proposition, which reads as under:

"transfer of a government servant
who is appointed to a particular cadre of
transferable post from one place to
another is an ordinary incident of service.
No government servant can claim to
remain in a particular place or in a
particular post unless, his appointment
itself is to a specified, non-transferable
post. Therefore , a transfer order per se
made in the exigencies of service does not
result in alteration of any of the
conditions of service, express or implied,
to the disadvantage of the concerned
government servant. However, a transfer
order which is malafide and not made in
public interest but made for collateral
purposes, with oblique motives and in
colourable exercise of power is vitiated by
abuse of power and is open to challenge
before court being wholly illegal and
void."

44. In the matter of State of U.P. and
Other Vs. Gobardhan Lal [AIR 2004
Supreme Court 2165], the Hon'ble the
Apex Court has observed that,
3 All]. Matadin Maurya Vs. State of U.P. & Ors.
1061

" A challenge to an order of transfer
should normally be eschewed and should
not be countenanced by the Courts or
Tribunal as though they are Appellate
Authorities over such orders, which could
assess the niceties of the administrative
needs and requirements of the situation
concerned.