REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5550  OF 2009 (Arising out of SLP(C) No. 17128/2009)

Airports Authority of India      …Appellant

Versus   Rajeev Ratan Pandey & Ors. …Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

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.

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 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 shall  

not be made  before the incumbent completes at least five year  

tenure  in  that  region;  that  the  official  shall  not  normally  be  

transferred within 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 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  

2

Authority on June 2, 2009. In the writ petition initially no interim  

order of stay was granted. It transpires from the record that on  

June 9, 2009 he sent a letter to the Director, Airport Authority,  

Calicut that he was under 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 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  

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  

interfere  with  the  matter.  In  prima facie  view of  the  Division  

Bench, the order of transfer suffers from strong mala-fides but  

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  

3

which contains no allegation that the transfer order has been  

issued maliciously. For the first time in a supplementary affidavit  

filed on July 3, 2009, the allegations of mala-fides have been  

made by the Respondent No. 1. Prima facie, we have no doubt  

that  the allegations of  mala-fides are afterthought.  Moreover,  

except the bald statement in the supplementary affidavit, there  

is no convincing and cogent material placed by the Respondent  

No. 1 in proof thereof.

5. In the case of State of U.P. v. Gobardhan Lal1, while  

dealing  with  a  matter  of  transfer,  this  Court  observed  that  

allegations of mala-fides must inspire confidence of the Court  

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 and  

the  burden  is  heavy,  admits  of  no  legal  ambiguity.  Mere  

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  1 (2004) 11 SCC 402

4

materials.  In  the  present  case,  as  noticed  above,  at  the  

threshold,  no allegations of  mala-fides have been pleaded in  

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 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 of  

this Court in the case of  Arvind Dattatraya 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  

Court, did not, even find any contravention of transfer policy in  

transferring the Respondent No. 1 from Lucknow to Calicut. In a  

2 (1997) 6 SCC 169

5

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.  

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.

6. Appeal  is,  accordingly,  allowed.  The  impugned  

order dated July 3, 2009 is set aside. No order as to costs.

……………………J (Tarun Chatterjee)

…….……………..J         (R. M. Lodha)

New Delhi August  17,  2009.

6