JUDGMENT [ENTITY], J.
1. By this petition under [SECTION] and [SECTION] of the [ACT], the petitioner; who is a Deputy Commandant (DC) in BSF Academy, Tekanpur, has challenged the order of his transfer (Annexure P/22) dated 23-7-1993, to the extent the petitioner was directed to move from BSF Academy, Tekanpur, to 14 Bn., BSF, at Gandhidham, in Gujarat State. Petitioner has challenged the order of transfer as actuated by malice because the petitioner, for seeking seniority and promotions in the light of the order passed in [CASE NUMBER], decided on 8-2-1990 in case of [ENTITY], filed a petition ([CASE NUMBER]) before this Court along with other petitioners wherein this Court, following the decision in the case of [ENTITY], directed the respondents to consider the. case of the petitioner for promotion on higher post that of the Inspector at least on the date on which [ENTITY] became entitled for consideration and was considered and given promotion. After the decision, the petitioner made a representation to give promotion due to him. When the petitioner was not granted his promotion, the petitioner initiated proceedings for contempt on 24th January, 1993, registered as [CASE NUMBER], for seeking a direction to implement the order. The respondents also filed a petition seeking nine months' time for compliance of the order passed in [CASE NUMBER][CASE NUMBER]). This Court granted six months' time to respondents to comply with the order. Before the final decision is taken in the time granted by this Court, the petitioner was directed to move to 144 Bn., located at Gandhidham in Gujarat, hence the petitioner challenged the order by a writ petition, [CASE NUMBER], as based on mala fides, wherein, the operation of the order dated 30-4-1993 was stayed.
2. In the said petition, the respondents did not file any return or reply, but on 5-7-1993, made a statement through their counsel at the Bar that the transfer order of the petitioner has been cancelled by the authorities and in that regard, a copy of the wireless message was filed which was not disputed by the petitioner. Therefore, the Court dismissed the petition as infructuous. But, to the surprise of the petitioner, the Director General, BSF, again passed an order dated 23rd July, 1993 by sending a signal (Annexure P/22) which reads as under :
"FROM PERS (.) POSTING/TRANSFER OFFERS (.) THIS HQ SIG NO. R/3293 DATED 30-6-1993 AND R/3297 DATED 22-7-1993 BE TREATED AS CANCELLED (.) POSTING OF SH. PURAN SINGH (IRLA 3367) DC TO 141 BN BSF ISSUED VIDE THIS DTE SIG NO. R/3289 DATED 30-4-1993 WILL STAND (.) RELIEVE OFFICER FORTHWITH TO JOIN HIS NEW PLACE OF POSTING AND SUBMIT CHARGE HANDING/TAKING OVER REPORTS TO ALL CONCERNED (.) COMPLIANCE BE SUBMITTED BY 31ST JULY '93(.)"
3. The petitioner contends that respondents misrepresented and played fraud upon the Court as also on the petitioner and managed to obtain the order of the Court of dismissal of the petition without getting a decision or verdict on merit of the mala fides alleged. Cancellation of the order of cancellation of transfer is with a view to victimise the petitioner as he approached the Court to get his due right and when the order of this Court of not giving seniority and promotion was not complied with, the petitioner initiated proceedings for contempt; but as the Court granted time to comply with the order which is to expire on 31st January, 1994, the petitioner was again directed to move to a long distance from Gwalior to Gandhidham so that if compliance is not made, the petitioner may not take recourse to the contempt proceedings or other appropriate proceedings. The transfer order was also attacked on the ground of being violative of guidelines and having been made in the mid-session.
4. In the return, the respondents submitted that the posting order of the petitioner was made keeping in view the operational requirements as well as the petitioner's long stay of more than seven years at BSF Academy, Tekanpur, but as that transfer order was stayed, by this Court, therefore, the Assistant Director, Personnel, suggested that for the time being, the order of transfer of the petitioner be cancelled and petitioner's case for posting from BSF Academy, Tekanpur may be decided after vacation of stay order and in that view of the matter, the stay order was cancelled for the time being. Original record of proceedings was produced before us. After passing of the order of cancellation, as the petition was dismissed and as there was no substitute of petitioner for being provided to 141 Bn., BSF and because of the administrative constraints, the petitioner was again posted to 141 Bn., BSF on 23-7-1993.
5. In the backdrop of the circumstances, Shri [ENTITY], learned counsel for the petitioner, placing reliance on the decision of the Supreme Court in the case of [PRECEDENT] and on a Division Bench decision of this Court in [ENTITY]'s case, [PRECEDENT], contended that though the question of posting and transfer is a matter primarily within the discretion of the competent authority, but the authorities have abused their discretionary power by making a statement before the Court in earlier petition and got the petition dismissed without getting it decided on merits which is nothing, but playing fraud upon the Court and on the party. Therefore, the order of transfer being arbitrary and mala fides being apparent, the order be quashed.
6. When an order of transfer is challenged in Court, it is well-settled that it is the appropriate authority which has to decide as to who should be transferred and where. Unless the order of transfer is vitiated by mala fide, or is made in violation of any statutory provision, the Court cannot interfere with it. While ordering the transfer, there is no doubt, that the authority must keep in mind guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate Government must consider the same having regard to the exigencies of administration. But, as ruled by the Supreme Court in case of [PRECEDENT], wherein the transfer of an employee was made without following guidelines, it was observed in that case that unless it is vitiated by mala fides or is made in violation of a statutory provision, the Court cannot interfere.
7. The Supreme Court in the case of [PRECEDENT], in para 7 of the Report, has observed :
"It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department "
8. In the case of [PRECEDENT], the Supreme Court has observed thus :
"This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily, the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under [SECTION] of the [ACT] in a matter where, on the face of it, no injustice was caused."
9. In the case in hand, the petitioner holds a high and responsible post in para-military forces and as the transfer is not in violation of any statutory provision, therefore, we have to examine whether the petitioner has been able to establish malice in fact in any manner, or in the backdrop of the circumstances, it is possible to draw reasonable inference of mala fide action from the pleading and antecedent facts so as to draw an inference of victimisation or the transfer order being by way of punishment.
10. On the one hand, it is true that the petitioner challenged the order of transfer by way of writ petition which was dismissed as infructuous on the statement made by the respondents that the petitioner's transfer order had been cancelled. On the other, it is equally true that that order of transfer was cancelled only because of the ad interim writ issued in the petition and for utilisation of the services of the petitioner at the station. However, on dismissal of the petition, the same order was revived. In such state of affairs, it is possible to draw reasonable inference of mala fide action. But, in our opinion, it is not enough for us and we have to examine whether in reality, there was any malice or mala fide against the petitioner in reviving the order of transfer. True, it would have been appropriate for the respondents to contest the petition and to demonstrate before the Court that the order of transfer is passed in exigencies and requirement of work and for administrative reasons and for that the respondents could have placed the material before the Court. Therefore, the conduct of the respondent to get the petition dismissed in such manner does not deserve approval. However, it is not possible to draw an inference of fraud against the respondents as the record has been placed before us and the fact which cannot be disputed is that a substitute was not available for posting at 141 Bn., BSF from some other unit and to nominate a Deputy Commandant in place of the petitioner which has not been refuted in rejoinder also. Therefore, it cannot be said that the signal dated 23-7-1993 for directing the petitioner to move was mala fide, passed in bad faith for any oblique motive or is influenced by ill-will.
11. During the course of hearing, the petitioner has apprehended that if the order passed in [CASE NUMBER] is not complied with within the time fixed by the Court, it will be very difficult for the petitioner to come to this Court from a long distance of more than 1,500 Kms. for seeking redress before this Court; or the petitioner may be denied his due right because he is litigating for his rights and has challenged the transfer order twice, to litigate again from his new posting would be too expensive and time-consuming and even the permission to leave headquarters may not be granted to him. Suffice it to say that these are the mere apprehensions of the petitioner. It is not expected from the Union of India or the other respondents that they would not act fairly and will not comply with the order of this Court in terms as for that, the respondents sought extension of time, and would not act as a model employer by adopting vindictive attitude, because, the petitioner has litigated before this Court for redressal of his grievances.
12. In the result, this petition is dismissed. However, in the circumstances of the case, the stay order passed by this Court on 29-7-1993 shall remain effective till 31st of January, 1994. Thereafter, the petitioner shall be directed to move and to join his place of posting. No costs.