- (1.) THIS special appeal has been filed by Dr. S. P. Vyas u/s. 18 of the Rajasthan High Court Ordinance, 1949 against the order of Learned Single Judge dt. 23. 7. 93 whereby the writ petition filed by him challenging his transfer order has been dismissed.
(2.) THE facts which are necessary to be noticed for the disposal of this special appeal as alleged by the appellant in brief are that after passing M. B. B. S. in the year 1973, he acquired a degree of M. S. in 1977. He was selected by the R. P. S. C. and was initially appointed as C. A. S. in 1979 thereafter as lecturer in 1980. THE appellant while working as Asstt. Professor at J. L. N. Medical College, Ajmer was temporarily appointed as Associated Professor and was relieved from Ajmer to join S. P. Medical College, Bikaner vide order dt. 4. 1. 91 (Anx. 1 ). THEreafter the D. P. C. recommended the petitioner for promotion on the post of Associate Professor on regular basis and he was promoted as such on 28. 5. 93 (Anx. 3) and he was posted at Bikaner. THE petitioner was transferred on 15. 7. 93 vide Anx. 5 from Medical College, Bikaner to Jodhpur, against which he preferred a writ petition. THE learned Single Judge by his order dt. 23. 7. 93 dismissed the same. Hence, this special appeal. Mr. Purohit, learned-counsel for the petitioner appellant has submitted that the learned Single Judge has erred in not interfering with the transfer order Anx. 5 which has been passed with malice with a view to accommodate the respondent no. 3. He has submitted that the petitioner was Head of Department at Bikaner and remained there for a short period of two years where as the respondent No. 3 has remained at Bikaner for more than 14 years. Under the circumstances equity demands that the petitioner should have been retained at Bikaner and the learned Single Judge has not considered the facts in proper perspective and has erred in not interfering in transfer order which has been passed with malice with a view to accommodate the respondent No. 3 and the same is liable to be set aside in this special appeal. We have given our earnest consideration to the arguments advanced by the learned counsel for the petitioner and perused the order of the learned Single Judge as also the material on record and case law. The first limb of the contention of Mr. Purohit is that the transfer order has been passed out of malice and in this respect he relied on a decision rendered in Smt. Kanchan Bhansali vs. State & Ors. bearing (1) and a similar matters decided on 27. 5. 1993 and a Single Bench decision of this Court rendered in Jagat Prakash vs. State (2 ). In Smt. Kanchan Banshali vs. State (supra), despite directions given by this Court in earlier identical case Surender Kumar Vyas vs. State ,the authorities neither gave effect to the transfer policy nor the authorities acted in consonance with the orders passed by this Court and yet the petitioners were transferred to distant rural areas or their postings in urban areas were cancelled. It was in this back ground that this Court again directed the officers of the Education Department to take steps to examine all the cases of employees keeping in view the length of service as well as other conditions specified in the transfer policy like accommodation of husband and wife at the same place of posting or cases involving serious ailments.
(3.) IN Jagat Prakash Yadav vs. State (supra), wherein petitioner was transferred, retaining the other person in contravention of declared policy of the Government. A writ petition was filed in which specific allegations of mala fide against specific persons were alleged. The learned Single Judge after considering the orders placed on record observed that the transfer order has been passed only to make room for the person having protection of the functionaries and while interfering with the impugned transfer order, it has been held that "i am more than convinced that this order has been passed for collateral purposes and for extraneous consideration. " It is no doubt true that if any transfer has been actuated by any mala fides, dishonesty malice or has been made in colourable exercise of power for extraneous purposes or considerations or for accommodating the third party, the same can be interferred. In the instant case the only ground shown by the petitioner-appellant in support of the contention of malice is that the impugned order is single order of transfer and has been made on the request of the respondent No. 3, which is clear from the endorsement of a copy of the order to the Private Secretary to the Advisor of the Governor. In this regard suffice it to say that these are no grounds to show malice on the part of the authorities as there is no bar to pass a single transfer order and further in the absence of any averment of malice and substantial proof thereof by direct or circumstantial evidence, merely because copy of the transfer order has been endorsed to P. S. to the Advisor to His Excellency the Governor, it cannot be said that the transfer order has been actuated by malice. Under these circumstances, the cases cited by the petitioner has no application for the reason that in Smt. Kanchan Bhansali's case (supra) the transfers were made in lots without following any norms and the directions issued by this Court as also in contravention of the transfer policy of the State itself whereas in the case in hand the petitioner has not been able to make out such a case. Likewise the case of Jagat Prakash (supra) is also not applicable to the facts of present case for want of Specific allegations and proof of malice or mala fides against specific persons or authorities. The second limb of the argument of the learned counsel for the petitioner is that the transfer order of the petitioner deserves to be quashed on the ground of equity as the respondent No. 3 has remained at Bikaner for longer period than the petitioner. ;