WP(C) 264/2011 BEFORE THE HON’BLE MR JUSTICE U.B.SAHA The challenge in this writ petition is the order dated 10.1.2011 (Annexur e-9 to the writ petition) issued by the Joint Secretary to the Govt. of Assam, E ducation (Elementary) Department, whereby and whereunder, the petitioner has bee n transferred as a Block Elementary Education Officer (BEEO) from Kapili to Nor th Golaghat Educational Block under Golaghat District in the same capacity again st the existing vacancy. 2. Heard Mr. A. M. Mazumder, learned senior Counsel assisted by Mrs D. Borg ohain, learned Counsel appearing for the petitioner and Mr. M.K. Choudhury, lear ned senior Counsel assisted by Mr. A. Deka, learned Counsel appearing for the re spondents 1, 2 and 3. 3. The pleaded case of the petitioner is that the impugned transfer order i s not issued on the basis of the instructions of the Election Commission of In dia, rather at the instance of the respondent No. 4, Sri Buddha Kataky, who has been given charge of the office of the petitioner and without considering the f acts that the petitioner is suffering from kidney problems and by this time, he required the transplantation of kidney, the authority transferred him from his p resent place of posting to Golaghat District. The petitioner also pleaded in his petition that there was no administrative exigency of public interest for trans ferring him just after six months of his joining in his promotion post. 4. The petitioner before issuance of the impugned transfer order having lea rnt that all officers would be transferred in view of the forthcoming State Ass embly election , filed a representation on 06.01.2011 stating, inter alia, that as he is going to retire within two years and also suffering from kidney problem s and there are eight members in his family including his aged mother and one ha ndicapped brother who is dependent on him, the authority should not transfer hi m again. 5. Mr. Choudhury, learned senior Counsel appearing for the State respondent s submits that the petitioner has not been singly transferred, rather a large nu mber of employees have been transferred by the State authorities in view of the directions of the Election Commission of India, as the election of the Assam L egislative Assembly would be held in the first part of 2011. 6. It is further submitted that in the instructions of the Election Commiss ion of India dated 14.12.2010, it is specifically mentioned that the officers wh o are connected or likely to be connected with the conduct of election should n ot serve in their home District or places where they have served for about 3 yea rs in last four years. 7. Mr. Choudhury again submits that admittedly, the petitioner has been se rving in his home district, Nagaon district and Moregaon district, the nearby d istrict of his home place, for more than three years and while transferring him , the authority also took note of his illness. He further submits that the tran sfer is an incidental of service and who would be transferred where that can onl y be decided by the employer being the employer is the best judge. The Court ca nnot interfere with a valid transfer order, issued by the authority on public in terest, the Court can only interfere with the transfer order when the same is either on mala fide intention or for oblique motive. In the instant case, the p etitioner has made allegation on mala fide, but his allegations are not supporte d by any document or any specific averment in the petition, rather it appears fr om his representation (Annexure-8 to the writ petition) that the petitioner hims elf apprehended that he might be transferred from his present place of posting t o another place in view of the forthcoming general election of the State Legisl ative Assembly for which he requested the authority not to transfer him again. T herefore, it cannot be said that the petitioner was not transferred in view of t he instructions of the Election Commission of India, Mr. Choudhury contended. 8. Having heard the learned Counsel for the parties and on going through th e records available before this Court, particularly the record placed by Mr. Ch oudhury, this Court is of considered opinion that it would be proper to dispose of the entire writ petition at this motion stage as agreed to by the learned C ounsel of the parties to the proposal of this Court and accordingly, the same is taken up for disposal. 9. While perusing the writ petition, it appears that the petitioner earlier also approached this Court by filing a writ petition being No. W. P (C) 3110 of 2010 challenging another transfer order and upon hearing the parties, this Cour t on 2.6.2010 passed an order of status quo so far as the order of transfer da ted 14.5.2010 was concerned. And in view of the order of this Court, the Commiss ioner and Secretary to the Government of Assam, Education ( Ele & Sec) Departme nt vide Notification dated 17.6.2010 (Annexure-6 to the writ petition) allowed the petitioner to take over the charge of BEEO, Kapili on the strength of Notif ication dated 12.5.2010 and in view of the said order of the authority, the afor esaid writ petition had become infructuous, and according to the learned Counse l for the petitioner, the said writ petition stood disposed of though the petiti oner did not annexed any order of this Court showing that the aforesaid writ p etition was finally disposed of. 10. This Court has given anxious thought to the decision of the Apex Court i n Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444 wherein the Apex C ourt noted that who should be transferred where, is a matter for the employer to decide being employer is the best judge to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer of Government employee, there is no doubt, the authority must keep in mind the guidelines issu ed by the Government on the subject, but the said guidelines do not confer upon the Government employee a legally enforceable right. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. 11. This Court has also taken note of the decision held by a Division Bench of this Court in Kalyan Kumar Sarkar Vs. Alok Kanti Paul Choudhury & ors, 2006( 3) GLT 624 wherein the Division Bench considering the decision of the Apex Cou rt held that burden of establishing mala fide is very high on the person who alleges it and it being a very serious allegation against a person, it demands proof of a higher order of credibility and must be supported by the foundationa l facts and the person against whom the mala fides is alleged must also be imple aded as party so that he gets an opportunity to controvert such allegation. By t his time, it is also settled by the Apex Court that it is very easy to make alle gation of mala fide than to prove, but at the same time, it may not always be po ssible to demonstrate malice in fact with full and elaborate particulars and in appropriate case it may be permissible to draw reasonable inference of mala fide from the facts pleaded and established (See E.P Royappa Vs. State of Tamil Nad u, AIR 1974 SC 555). 12. The expression mala fide has a definite significance in the legal phrase ology and the same cannot possibly emanate out of fanciful imagination or even a pprehension but there must be existing definite evidence of bias and action whic h cannot be attributed to be definite evidence of bias and action which cannot b e attributed to be otherwise bona fide as held by the Apex Court in State of Pun jab Vs. V.K. Khanna, AIR 2001 SC 343. 13. This Court has also taken note of the decision rendered in the case of M.A. Ezung Vs. State of Nagaland & ors, 2009(1) GLT 293 wherein it was held tha t it is also settled by this time that where there is no question of mala fi de, an employee cannot resist a transfer order merely on the ground that it will cause hardship or inconvenience to him and the court also cannot interfere with such a transfer order unless it is issued with mala fide intention or by the in competent authority or in violation of any statutory rules meaning thereby an or der of transfer cannot be faulted with on the ground of hardship simplicitor. 14. Upon going through the records, even from the allegations made, this Cou rt is not in a position to draw a reasonable inference of mala fide. So far as t he illness and hardship of the petitioner is concerned to work in the new place of posting, which should be sorted out between the employer and the employee, no t by the Court. Therefore, it would be proper to dispose of this writ petition with a simple direction to the petitioner to make a fresh representation to the Commissioner and Secretary to the Government of Assam, Education (Ele & Sec) Dep artment, the respondent No. 1 herein, within 10 (ten) days from today and the a uthority shall dispose of the same within a period of 10 (ten) days from the da te of receipt of the representation and while disposing of the representation of the petitioner, the respondent No.1 shall take a note of the fact that the pe titioner is suffering from illness and by this time his one of the kidney has al ready been transplanted and if the authorities decide to keep the petitioner in his present place of posting, then they can also take up the matter with the El ection Commission to permit them to do so, as the Election Commission of India i s not aware about the illness of the petitioner . Till consideration of the repr esentation of the petitioner, he should not be released from the present place o f posting i.e. the place where he was working at the time of issuance of impugn ed transfer order subject to he has not been released from the said place in th e meanwhile. 15. With the aforesaid order, the instant writ petition is disposed of. No o rder as to costs.