MATHUR, J. - (1.) THE instant Appeal is directed against the order of the learned Single Judge quashing the order transferring fifth respondent Dr. Vijay Laxmi Sharma from Mahatma Gandhi Hospital, Bhilwara to Shri Jawahar Hospital Jaisalmer.
(2.) THE undisputed facts are that fifth respondent Dr. Vijay Laxmi Sharma was posted as Senior Specialist in Gynaecology at M. G. Hospital, Bhilwara. She was also holding the charge of Principal Medical Officer, Bhilwara. THE appellant Dr. Arun Chauhan, a Junior specialist in Gynaecology, who was initially transferred from Asind to Bijollya, was accommodated at Bhilwara on the post held by fifth respondent. THE said order of transfer was challenged by fifth respondent before the Rajasthan Service Appellate Tribunal, Jaipur. THE Tribunal dismissed the appeal by judgment dated 28. 7. 2004. Fifth respondent challenged the said order by way of a writ petition, which has been allowed and the order of transfer has been quashed by the impugned order. Mr. M. S. Singhvi, learned counsel appearing for the appellant, has advanced twin contentions before us. Firstly, it is submitted that the learned Single Judge decided the matter without hearing the appellant inasmuch as that on show cause notice for admission being served, he was advised not to put in appearance as the writ petition itself might be dismissed at the admission stage. In absence of notice for hearing, it was not open for the learned Single Judge to decide the appeal finally. Secondly, it is contended that the learned Single Judge after having held that the order of transfer did not suffer from any basic infirmity or illegality, committed error in interfering simply on the ground that it was to accommodate the appellant. However, as far as first contention is concerned. Mr. Singhvi, in all fairness, submits that instead of remitting the matter to learned Single Judge for fresh hearing, the appeal itself be heard on merit. Mr. G. K. Vyas, learned counsel for the respondent No. 5, while supporting the judgment of the learned Single Judge, submits that learned Single Judge has found the order of transfer malafide on the ground that power has been exercised with a view to adjust the appellant. It is further submitted that the appellant is a Junior Specialist in Gynaecology and he was posted in small town viz; Asind. He was transferred to Bijollya but he did not carry out the order and managed his transfer to a bigger hospital at district headquarter on a post occupied by the Senior Specialist. Fifth respondent was not only holding the post of Senior Specialist but was also Principal Medical Officer of Mahatma Gandhi Hospital at Bhilwara. She has been transferred to farthest corner of Rajasthan in a small hospital. Thus, it is not a simple case of accommodation, but accommodation at the cost of other's discomfort. It is further submitted that the State Government while accommodating the appellant did not even bother to take into consideration the important administrative aspect concerning public utility that Bhilwara, being one of the biggest industrial town of State of Rajasthan requires a Senior Specialist in Gynaecology in comparison to small district like Jaisalmer. Mr. Singhvi in support of the contention that the order of transfer of an employee is a part of service conditions and, as such, the order of transfer is not required to be interfered-with lightly by the courts in exercise of its discretionary jurisdiction, unless the Court finds that either the order is malafide or that the service rules prohibit such transfers or that the authority issuing the order, has no competence to pass the order, has relied upon various decisions of the Apex Court Union of India vs. Janardhan Debanath (1), Union of India vs. S. L. Abbas (2) & Union of India vs. H. N. Kirtania It is also submitted that where a competent authority issues transfer order with a view to accommodate a public servant to avoid hardship, the same cannot be interfered with by the court merely because it was passed on the request of the employee concerned. Reliance is placed on a decision of this Court in Mrs. Shilpi Bose vs. State of Bihar The law with respect to interference by the courts in the matter of transfer is well settled. The Courts are not to interfere unless the transfer order is vitiated by malafide or is made in violation of any Constitution provision. Similarly, the law with respect to power of this Court to interfere while exercising power under Article 227 of the Constitution is also well established. The High Court cannot exercise the power under Articles 226 & 227 of the Constitution unless the order impugned before the court contravenes certain provisions of law or is without jurisdiction or has been passed taking into account extraneous material or ignoring the relevant material or is based on finding, which could not have been arrived-at by any reasonable manner. In view of the settled position of law, it is not necessary to deal with all the cases referred. As far as the decision of the Apex Court in the Mrs. Shilpi Bose's case (supra), is concerned, on which heavy reliance is placed by the learned counsel, on thoughtful consideration, we are of the view that it does not advance the case of the appellant. On the contrary, it supports the view taken by the learned Single Judge. The Apex Court while approving the exercise of power by a competent authority in the matter of transfer to accommodate a public servant, has indicated the reasonable exercise of power i. e. , to avoid hardship. Thus, the exercise of power of transfer to accommodate a public servant is not absolute or power of whim or pleasure. As and when a request is made by an employee for transfer, it must be considered in right perspective taking into account all relevant considerations including likely hardship to the person sought to be dislodged by such transfer and the public interest.
(3.) IN the instant case, there is not a word in the entire pleadings as to what was the compelling reason for the competent authority to post a junior person of the status of Junior Specialist from a small town to a big hospital at the district headquarter dislodging a person holding the post of Senior Specialist and also incharge of the hospital as Principal Medical Officer at a distant place. The authority has not taken into consideration that the services of the fifth respondent were more required in a bigger hospital at Bhilwara than in the farthest corner of the State i. e. , Jaisalmer. The competent authority while accommodating the appellant, has not taken consideration likely hardship to the fifth respondent and convenience of the people at large at Bhilwara. IN these circumstances, the learned Single Judge has rightly held that the impugned order of transfer suffers from malafide. We do not find any infirmity in the order of the learned Single Judge warranting interference by this Court. Consequently, the Special Appeal stands dismissed being devoid of merit. .;