S. K Mookerji, J. - (1.) HEARD learned counsel for the petitioner and also learned Standing Counsel.
(2.) TO assail a transfer order is difficult but it is not an impossibility under Article 226 of the Constitution. No doubt, transfer is an incident of service and normally it cannot be challenged unless such order is violative of any provision or principle of law or suffers from malafide. It is commonly believed that Government, some time, forms policy of transfer by issuing administrative instructions in the form of Government Orders. No doubt, the Government is expected to respect its own Govern Orders. Therefore, normally a transfer order is expected to be made unconformity with such Government Orders. It is, however, wrong to believe that the Government is powerless to transfer an employees against its own instructions, as such, the Government Order/instructions are subject to the Rules of transfer on administrative grounds in public interest or on some special reason or on administrative exigencies. Thus, it cannot be said that a transfer order cannot be passed against the principles laid down under the Government Order or instructions. There may be more than one valid reason to transfer an employee against the Government instructions, which cannot be exhaustively illustrated here. Moreover, a mid-term transfer, against the Government instructions, can also be validly made if it so requires under certain given circumstances. No doubt, under certain set of circumstances a transfer order may create a great hardship to an employee and in such event it is always open to the employee to approach the appropriate authority bringing to its notice the adverse circumstances for a fair decision or review of such transfer order. In any view, the employer has to consider such adverse circumstances of an employee with an attitude of infinite kindness and pass necessary orders in strict compliance of law. However, it is not emphasised that the hardship would over weigh the other circumstances or all other provisions of law. All that is necessary is to decide the case on sound principles of fair play which should be circumscribed by legal principles of law on the subject of transfer. Transfer is normally not a punishment Thus, transfer order can be subjected to judicial scrutiny in exceptional cases only. By this petition the petitioner has challenged the impugned transfer order dated 10-8-1990. Learned counsel for the petitioner urged that this impugned transfer order has been assed in violation of the order of the State Government. He has further stated that in respect of some other persons the transfer order has also been stayed. Learned counsel for the petitioner has also emphasised the great hardship that the petitioner would suffer if the transfer order, is allowed to be implemented without considering his case. At this stage, I am not inclined to interfere with the impugned transfer order and on the contrary, I am of the opinion that the petitioner shall approach the appropriate authority by means of a representation-application along with the certified copy of the order passed by this Court today within seven days from today. In the said application he shall raise all possible grounds for making a prayer for. cancellation of the transfer order dated 10-8-1990. The authority concerned shall decide the representation within a period of two weeks from the date of receipt of the aforesaid application-representation and the certified copy of the order passed by this Court today. The petitioner shall fully cooperate with the authority concerned for taking a decision in the matter. It is also made clear that if the petitioner fails to extend cooperation to the authority concerned it shall be open for the authority concerned to pass any order that may deem just and proper. For a period of three weeks from today the operation of the impugned transfer order dated 10-8-1990 shall remain stayed. It is hoped that the authority concerned shall decide the representation within the time allowed and under no circumstances shall delay the matter. With the above observations, the petition is disposed of,
(3.) A certified copy of this order may be issued to the learned counsel for the petitioner on payment of usual charges within 48 hours.;