1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R SMT. BEENA BHANDARI. V. THE STATE OF RAJASTHAN & OTHERS. S. B. CIVIL WRIT PETITION NO.425/2008 Under Article 226 of the Constitution of India. DATE OF ORDER 28/01/2008 PRESENT HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr.Sanjeet Purohit for Mr.Vikas Balia, for Petitioner. BY THE COURT Heard learned counsel for the petitioner. In this writ petition, petitioner seeks to challenge the order of transfer dated 24th October,2007 and order dated 8/11/2007 whereby appeal filed by her against the said order was dismissed by the Rajasthan Civil Services Appellate Tribunal. Learned counsel for the petitioner has argued that the petitioner was transferred for reasons of mala fide, inasmuch as initially, when the petitioner was earlier transferred on 7th 2 October, 2006, he filed this writ petition before the Jaipur Bench of this Court, in which interim stay order was granted on 10th November, 2006. The respondent, in spite of the stay order passed by the Court, did not pay her salary. Subsequently, on dismissal of the writ petition, another transfer order was passed on 24th October, 2007. But, this time, citing the reason that she was posted at Government College, Udaipur in excess of the sanctioned strength. It is contended that one post of Lecturer in history fell vacant on the retirement of Dr. Rekha Shreemali on 31st October, 2007 and another Lecturer, Dr. Archana Mehta, was sent on deputation on 23rd October, 2007. Learned counsel submits that even if the contention that there was surplus staff in the college, then the candidate who had maximum stay, ought to have been transferred. In this connection, he cited the names of Ms. Shakuntala Kothari and Ms. Anita Kawaria, who working in the same college since 2001. The petitioner was working in the said college since only 2003. None of his arguments, however, were adverted to and considered by the Tribunal in its judgment. The order of transfer as well as the judgment of the Tribunal are, therefore, liable to be set aside. Citing the judgments of the Kerala High Court in Dr. P. Damodaran v. State of Kerala and others, 1982 (1) S.L.R. Page- 563, learned counsel argued that mala fide exercise of power 3 does not necessarily mean dishonestly and bad faith. In the legal sense, it means a fraud on power of transfer when power of transfer is exercised to accommodate another government servant without due regard to the interest of the administration or the interest of public or the provisions of law or requirements of justice or is exercised for extraneous or irrelevant considerations or as a measure of punishment. Such exercise, according to the learned counsel, would be a mala fide exercise of power. He also cited the judgment of this Court in Asu Singh v. State of Rajasthan, 1983 (3) S.L.R. Page-783, to buttress his this submission. Upon hearing the learned counsel for the petitioner and perusing the impugned order and other material forming part of the record, it is noted that although in the memorandum of appeal filed before the Tribunal that the petitioner mentioned about the continuation of two other lecturers in the same college from an earlier period and deputation posting of two other lecturers and that one lecturer in the subject of history retired on 31st August, 2007, but the question that arises for consideration is whether the petitioner, who has been working in the said college since some time in 2003, can on that basis claim writ of mandamus upon the respondents to keep her posted in the Government College, Udaipur. Validity of the order dated 24th 4 October, 2007, cannot be adjudged on the basis of subsequent retirement of a lecturer and, thereafter, posting on deputation another lecturer. It is not known whether those posted on deputation or those who are continuing from 2001 are in the same subject. In any case, the transfers are not regulated strictly on the basis of seniority or length of stay and infraction of that assumption also, therefore, cannot afford any basis to hold that it was a mala fide exercise of powers. Transfers are made in administrative exigencies and, in that exercise, the respondents have to be granted autonomy. Interference in the matter of transfer can be made by this Court, only in the cases of proven mala fides or violation of statutory rules. Mala fide which is alleged while assailing the order of transfer has to be such mala fide which is attributed to an individual on officer, who is shown to have acted in excess of his authority or for ulterior motive or for extraneous considerations. Mala fide in such cases therefore has to be malice in fact and not just malice in law. Argument of the learned counsel that since the action of the respondents on the given facts do not appear to be justified, cannot be just accepted by inferring malice in law. In the present case, no such allegation either in the memorandum of appeal filed before the Tribunal or in the memorandum of writ petition filed before this Court has been made. Moreover, no- one is impleaded as party-respondent by name in support of 5 such allegations. The argument of mala fide, therefore, cannot be sustained. Since the petitioner was working in the said college at Udaipur since 2003 and holding transferable post with the State-wide transfer liability, the Tribunal, in its order, has therefore rightly concluded that the respondents are entitled to transfer the petitioner in administrative exigency. Consequently, I do not find any error in the impugned order passed by the Tribunal or in the impugned order of transfer itself. There being no merit, the writ petition is, therefore, dismissed. (MOHAMMAD RAFIQ), J. scd