N. C. SHARMA, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution of India by Subhash Chandra Saharan for quashing an order dated September 7. 1989, issued by the Superintending Engineer, Irrigation Department Government of Rajasthan, Jaipur transferring him from the post of Junior Engineer Gang Canal, North Division, Ganganagar to Command Area Development (C. A. D.) Indira Gandhi Nahar Pariyojna Organisation, Bikaner as against a vacancy caused by the transfer of Rekharam, respondent No. 3, from the latter place.
(2.) THE petitioner joined his services under the Government of Rajasthan in the Irrigation Department as Junior Engineer on April 14, 1970. By an order dated April 26, 1988 (Exhibit-1), the petitioner, while working as Junior Engineer at Gang Canal Link Division Sri Ganganagar (Bikaner Irrigation Circle), was transferred to Gang Canal, North Division, Sri Ganganagar. THE petitioner asserts that he joined at Gang Canal North Division, in compliance of the aforesaid order (Exhibit-l), but by another order dated May 19, 1988, his transfer from Gang Canal Link Division, Sri Ganganagar to Gang Canal, North Division Ganganagar was cancelled so as to allow Shri Bop Deo Beniwal to continue at Gang Canal, North Division, Ganganagar and resultantly, the petitioner was sent back to Gang Canal Link Division. Soon thereafter, by an order dated May 30, 1988, the re-posting of the petitioner at Gang Canal Link Division was cancelled and consequently, the petitioner had to join at Gang Canal, North Division. It is stated that the petitioner could hardly complete 1 year at Gang Canal, North Division that by an order dated May, 17, 1989 (Exhibit-3), he was transferred to Indira Gandhi Nahar Pariyojna Organisation, Bikaner and by this very order, Rekharam respondent No. 3 was posted at Gang Canal, North Division, Ganganagar vice the petitioner. It is alleged that there had been an earlier transfer order in relation to Rekharam respondent No. 3 dated December 31, 1988, but Rekharam was intersted in posting at Gang Canal, North Division, Ganganagar and he had not complied with this earlier transfer order dated December 31, 1988. However, by an office order dated June 9, 1989, the transfer order dated May 17, 1989 in relation to the petitioner and respondent No. 3 was cancelled and the result of this cancellation was that the petitioner continued at Gang Canal, North Division, Ganganagar and the respondent No. 3 at Indira Gandhi Nahar Pariyojana, Bikaner where he did not join. Now it is stated that by an order dated Sept. 7, 1989, the petitioner has again been transferred from Gang Canal, North Dvn. , Ganganagar to Commad Area Development, Indira Gandhi Nahar Pariyojana, Bikaner and respondent No. 3 has been posted at Gang Canal, North Division vice the petitioner. This is the latest transfer order which is (Exhihit-5) and which has been challenged in this petition. The petitioner states that subjecting a Government servant to such frequent transfers is against public policy and the transfer in mid academic sessions are against the declared policy of the Government and even otherwise, there is no justification whatsoever or any administrative exigency to warrant such transfers which are contrary to the policy and are arbitrary and in rational. The impugned order is stated to have been passed for collateral purpose and for the reasons of extraneous and not germene and also not for the public purposes. It is therefore, said that the transfer order (Exhibit-5) is malafide and it has been passed only to accommodate respondent No. 3 at Gang Canal, North Div. Ganganagar. Along with the writ petition, the petitioner had also filed a Stay Petition No. 3065/89. Notices were ordered to be issued to the respondents returnable within 4 weeks to show cause as to why the writ petition and the stay application be not admitted and finally decided at the admission stage and why the stay application may not be granted. An exparte interim order was passed staying the operation of the order dated September 7, 1989 (Exhibit-5) in relation to the petitioner till further orders. Notices were served on respondents No. 1& 2 on September 21, 1989 and on. respondent No. 3 on October 7, 1989. The case was then listed before the Court on 27. 10. 1989. On that date appearance was put by Mr. L. K. Sharma, Deputy Government Advocate on behalf of the respondent Nos. 1 and 2. Respondent No. 3 did not appear despite service. No reply to the writ petition or stay application was filed by respondent Nos. 1 & 2 The matter, was therefore, heard on that date. I may refer here to the decision of their Lordships of the Supreme Court in B. Vardha Rao vs. State of Karnataka (1 ). The point involved in that case was that whether an order of transfer of a Government servant made by an authority other than the Government itself, was appealable before the Government under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The Division Bench of the Karnataka High Court upheld the view of the Single Judge of that court, that no appeal lay to the State Government against an order of transfer made by the Commissioner of Labour transferring the petitioner from Bangalore to Tarikere under Rule 19 of the said Rules. The petitioner filed a special leave petition before the Supreme Court which was dismissed. However, deeling with the transfer matter, their Lordships observed as under:- "it is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. . . . . . . . . No Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non transferable post. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned Government servant. " Their Lordships referred to the decision of the Bombay High Court in Seshrao Nagorao Umap vs. State of Maharashtra (2) wherein reliance was placed on the observation made by the Supreme Court in E. P. Royappa vs. State of Tamil Nadu (3) for the positivistic view that "equality is antithetic to arbitrariness" and held that the observations equally apply to the policy regard-ing the transfer of public servants. It was observed: - " 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 utilies 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 considerations or for achieving an alien purpose or an oblique motive it would amount to mala-fide and colourable exercise of power. Frequent transfer, without sufficient reasons to justify such transfers, cannot but be held as malafide. 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 the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administrative, that even administrative actions should be just and fair. "
(3.) ON the question of transfer generally, their Lordships of the Supreme Court commented as follows:- "one cannot but depracate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Govt. servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer. " It is clear from the decisions that transfers can be made in public interest and a Government servant is liable to be transferred to a similar post in the same cadre and this is a normal feature and incident of Government service. No Government servant can claim to remain at a particular place or on a particular post unless, of course, his appointment itself is to a specified nontransferable post. The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vest-ing of any immunity from transfer in the Government servant. Frequent, unscheduled and unreasonable transfers deserve deprecation for the reason that they uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. I would add that it also adversely affect the administration of a Government department. Institution or Organisation and it can amount to mal-administration. The power of transfer of a Government servant, if abused, by the executive is vitiated. No transfer can be made which is not in public interest or is for collateral purposes or oblique motives, because such transfers are in abuse of powers. The power of transfer must be exercised honestly, bona-fide, reasonably and so as to sub-serve public interest. It should never be exercised on account of any political influence of a Member of Legislative Assembly or a Minister. Any transfer of a Government servant ordered on account of any political influence including at the behest of a Minister is malafide transfer and cannot withstand in a court of law. It is high time that the Government of Rajasthan should understand it very clearly. In the light of this well-settled legal position, I would examine the validity of the transfer of the petitioner made by the Superintending Engineer, Irrigation Department on September 7, 1989 by (Exhibit-5), transferring the petitioner from the post of Junior Engineer Gang Canal, North Division, Ganganagar to the post of Junior Engineer at Command Area Development, Indira Gandhi Nahar Pariyojna Organisation, Bikaner vice respondent No. 3. It cannot be denied that Canal areas of Rajasthan are sensitive areas and the Irrigation Department is equally a sensitive department of the State. The petitioner was posted as Junior Engineer at Gang Canal, North Division, Ganganagar by an order dated April 26, 1988 Exhibit-1 ). The petitioner joined at Gang Canal, North Division, Ganganagar in pursuance of the order (Ex.-l ). This court deprecates in strongest terms the Chief Engineer, Irrigation Department, Rajasthan Jaipur and the Superintending Engineer because having transferred the petitioner on April 26, 1988 as Junior Engineer to Gang Canal, North Division, Ganganagar, they cancelled that order even within a period of less than one month i. e. on May 19, 1988. This only reveals that the Chief Engineer, Irrigation passes transfer orders and cancellation orders without due application of mind and without keeping public interest in view. The Chief Engineer, Irrigation, Rajasthan is the highest technical officer of the Irrigation Department and the broad objective in his mind, while deploying technical persons, should be to make water, as much as possible, available to the tillers of the soil by extending the construction of Canal and their distributories so that the Rajasthan State, which is generally under famine and drought may not remain so, the fate of the poor farmers may improve and the agriculture production may increase in State's interest and also in nation's interest. He should not become simply a transferring and cancellation of transfers machinery. Various orders produced in this case go to show that the transfer orders are issued and soon thereafter they are cancelled. What-else inference can be drawn that there is total mal-administration in the Irrigation Department of the Government of Rajasthan. On merits, it is clear that the petitioner was a Junior at Gang Canal, North Division, Ganganagar since April 26, 1988, Despite in between orders of transfers, the petitioner has been able to remain as Junior Engineer, Gang Canal North Division, Ganganagar, up to September 7, 1989 and as a result of the stay order granted by this court, he has been able to remain at the said posting till now. Thus the total stay of the petitioner at Gang Canal has now been for about 1 year and 9 months. This much period is sufficient for a posting in sensitive department area like Ganganagar. I would. therefore, not interfere in the exercise of extra-ordinary jurisdiction of this court under Article 226 of the Constitution with the order (Exhibit-5 ). Nothing has been established to show that the transfer order (Exhibit-5) was issued on account of abuse of power or for extraneous or collateral considerations. The transfer appears. to be in public interest. In between transfers and their cancellation might have been manipulated by the petitioner and respondent No. 3, which tendency I have already depricated above, but the fact like that the petitioner has already had a reasonable stay at his posting as Junior Engineer at Gang Canal, North Division, Ganganagar. ;