ORDER
P.C. Jain, J.
1. In this writ petition, the grievance of the petitioner is about transfer of Government servants, particularly Class III and IV, which are being effected indiscriminately unjustly and frequently without any definite policy or guide-lines, which has resulted in demoralising the employees and harassment to them.
2. The petitioner is a Union registered under the Indian Trade Unions Act, 1926. It is a trade union of all the diploma-holder-Engineers belonging to the PWD, PHED and Irrigation Department. The Union has filed this writ petition on behalf of its members and other State employees in public interest. The contention of the petitioner Union in this writ petition is that though the service conditions of the members of the petitioner Union are governed by the Rajasthan Service Rules, 1951, framed under Article 309 of the Constitution of India, and also by the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and also there are other rules dealing with the matters like appointment, confirmation, seniority, promotion, resignation, retirement, suspension etc. but, there are absolutely no rules either of a statutory or non-statutory character laying down the procedure for administrative authorities in the matter of transfers of Government servants and also there are no firm guide-lines or bye-laws laid down by the Government in this regard. The petitioner, therefore, prayed for issuance of a writ, order or direction directing the respondent-State of Rajasthan, to frame statutory rules under Article 309 of the Constitution of India for regulating transfer of State employees or to direct the Government to issue executive instructions/guidelines for laying down policy in the matter of transfer of State employees. Though, the petitioner has prayed for other reliefs in the writ petition, but we are of the opinion that the same cannot be allowed in the writ petition of the nature which has been filed by the Union. The learned Counsel for the petitioner also did not press the same.
3. The grievance of the petitioner is that transfer orders are passed by the authorities concerned in discriminately and frequently. The petitioner has enumerated a number of circumstances wherein the power of transfer was exercised by the authorities arbitrarily, mala fide and also for accommodating some employees on political pressure either on the desire of the MLA or the Minister. The petitioner has also given instances where transfer orders were passed violating the order banning such transfers by ante-dating the order or violating such order. The petitioner has also pointed out that there are certain guide-lines issued by the Government for regulating, the transfers, but these guide lines are not strictly and firmly followed, and. no action is ever taken against the officer who has violated the guide-lines. In the circumstances, there is heavy discontentment amongst the State employees regarding indiscriminate, mala fide and frequent transfers. The petitioner has gone to the extent of stating that the discontentmention amongst the State employees has to a large extent demoralised the State administrative set-up and has thereby resulted in grave insufficiency and corruption in the governance of the State. Frequent transfer orders have also resulted into heavy burden on public exchequer also. To illustrate the same, the petitioner has pointed out that 374 persons were transferred within a period of 10' months vide Annx. 7 to 18; 302 persons were transferred within a period of two months vide Annxs. 7 to 16; 246 persons were transferred within a period of 15 days vide Annx. 8 to 16 and 127 persons were transferred in one single day on 3lst July, 1986 and so on. 246 persons were transferred in July, 1986. only to circumvent the ban imposed on transfer with effect from 1st August,, 31986 and, these transfers were in no way for any exigency of service or for administrative reasons. The petitioner has further said that one Mohan Lal Bansal was transferred twice in one day vide Annx 11. Shri Kishan Lal was transferred six times within a period of 8 months Shri Virendra Kumar, Junior Engineer was transferred four times within a period of 1/2 month. One. Om Prakash Sharma, Executive Engineer was transferred to Irrigation Circle, Udaipur, but he was shown to have been transferred to Irrigation Circle, Udaipur Kherwara Section to Irrigation Division. Somkagdar . Thus, one-person was posted at two places by one order. The petitioner has given more-instances, but it is not necessary to quote the same in this judgment. By, quoting these instances, the petitioner has contended that such transfer orders are wholly mala fide, capricious and arbitrary and in gross-violation of the ban orders imposed by the Government and the other guide-lines provided for effecting transfers.
4. The petitioner has admitted in the writ petition and Shri Agrawal, learned Counsel for the petitioner, has candidly stated that transfer is not a condition of service, but an incident of service.
5. Notices were issued to the respondents to show cause why the writ petition should not be admitted. In reply, the respondents have filed turn, In the reply, the respondents have admitted that the State of Rajasthan, issued an order No. F. 1(20) FAA-Gr. 11/63 dated 21st October, 1963 which deals with the policy of transfer. But they have submitted that looking to the administrative exigency and the request of the persons concerned transfers were made in violation of the mandate of the circular. With regard to the other circular dated 20th June, 1967, the respondents have submitted that when ever transfers are effected, the circular is always kept in view subject to deviation as required for administrative exigency and looking to the development of the work. The respondents have submitted that they have not violated the executive instructions or guidelines and further submitted that the transfer orders arc passed in accordance with the guide-lines, executive instructions and on administrative grounds. The respondents have denied the other allegation made in the writ petition. In short, the contention of the respondents is that the transfer orders have been issued by the competent authorities on administrative exigency and the petitioner has no legal right to challenge the same.
6. The petitioner has filed a rejoinder to the reply Sled by the respondents.
7. The main defence raised by the learned Counsel for the respondents is that a writ petition seeking a direction to frame rules or for issuance of policy of transfer cannot be given by this Court under Article 226 of the Constitution of India.
8. It is true that it is an accepted principle that in public service transfer is an incident of service. The Government is the best judge to decide how to distribute and utilise the services of its employees. It is also true that this power should be exercised in public interest bona fide. It is also agreed by the learned Counsel for both the parties that if exercise of power is based on extraneous consideration, or for achieving the alien purpose, or an oblique motive, it would amount to colourable exercise of power and amounts to mala fide also. The Supreme Court in C.P. Royappa v. State of Tamil Nadu and Anr. (1974) 2 SCR 349, has held that...transfer is a mala fide when it is made not for the professed purpose such as in normal course or in public or administrative interest or in exigency of service but for other purposes, that is, to accommodate another person for undisclosed seasons. In the same judgment the Supreme Court has also observed that frequent transfers without sufficient reasons cannot but be held as mala fide. In B. Varadha Rao v. State of Karnataka and Ors. 1986 (III) SVLR (L) 86, the Supreme Court observed as follows:
6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive, to good administrative. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. we was to add that the position of Class II and Class IV employees stand on a different footing. We trust that the Government will kept these considerations in view while making an order of transfer.
9. In Ram Krishan v. The District Education Officer, Kulu and Anr. 1980 Lab I.C. 36, Himachal Pradesh High Court observed that if interference is allowed in the matter of transfer, on the recommendation of MLA, it would only mean that the Government servants should run after those who are taking part in public life and in politics for getting better terms of service and a better place for their postings, and should do everything to please them and not to please the department by their ability, honesty and integrity. The Court further observed that such interference of outside is in day to day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, would succeed. In Asu Singh v. State of Rajasthan 1983(3) SLR 783 this Court observed that while dealing with the matter of transfers the principle should not be lost sight of, that Court should ordinarily feel reluctant to interfere in the orders of transfer, because it is the Government who had to run the administrative machinery. How ever, if there are allegations of mala fides or there is violation of any Rule or administrative order in that regard, Courts should not shrink from scrutinising the matter and interferring with the impugned order.
10. In short, the settled position of law is that transfer of an employes is an incident of service and that in the exigeney of service, an employee can be transferred. The form of opinion regarding existence of exigency is primarily to be left to the subjective satisfaction of the authority competent to pass an order for transfer It is only in the process of forming an opinion there is mala fide, dishonesty, extraneous consideration, oblique motive or transgression of any rules or the policy that this Court will interfere. In Shambhu Dayal Kureel v. Union of India and Ors. 1982 WLN 407 also this Court laid down the same principles. There are number of cases of Apex Court, this Court and other High Court, but we have quoted some of the cases only to point out the principles which should be adhered to in the matter of transfer and which may give a bread spectrum view to the Government for laying down any policy in the matter of transfer.
11. We make it clear that the vice of are itrariness and other infirmities we have pointed out in the matter of transfer are curable if the State Government issues positive guide-lines or the administrative instructions which should be reasonable and fair. It need not require more emphasis that an administrative action must be reasonable and in public interest and it should not be arbitrary, capricious and mala fide. Ours being a democracy, it should be remembered that concept of public interest must as tar as possible receive its orientation from the directive principles enshried in the Constitution of India. The policy of transfer, thus, should be fair and reasonable and should apply to every body equally. Such a policy is needed for smooth and clear administration and it would repose confidence in the employees and consequently, would increase their efficiency. It would also protect the Government employees from inconvenience and harassment which is always there when frequent transfers are made and mala fides are exercised in transferring the employees to favour or to accommodate other employees on political push and pull.
12. The only question that remains to be decided is, whether this Court is competent enough to issue a direction to the State Government to evolve a policy in this regard. Shri Rathore, appearing on behalf of the State, has submitted that no such directions can be issued by this Court under Article 226 of the Constitution of India. While Shri Agrawal, learned Counsel for the petitioner, has submitted that in a number of decisions, the Supreme Court has recognised this power of the Court. Shri Agrawal has placed reliance on Aeltemesh Rein v. Union of India : 1988CriLJ1809 , where in a writ in the nature of mandamus was issued to the Central Government to consider within a period of six months whether Section 30 of the Advocates Act, 1961 should be brought into force or not. In that case, a reference was made to Prem Shankar Shukla v. Delhi Administration : 1980CriLJ930 . In that case, the question arose on account of the alleged handcuffing of an advocate on the charge of criminal offence. The Hon'ble Supreme Court in that gave certain directions, but the directions were not implemented. The Supreme Court in Aelitemesh Rein v. Union of India (supra) directed the Union of India to frame rules or guide-lines as regards the circumstances in which handcuffing of the accused should be resorted to in continuity with the judgment in Prem Shankar' case (supra) and to circulate the same amongst all the State Government, and the Government of the Union territories. The Supreme Court further gave directions to comply with the order within a period of three months. In Vincents Panikurlangara v. Union of India : [1987]2SCR468 , which related to a public interest litigation filed for seeking a ban on injurious' drugs, the Supreme Court gave certain directions to the Union of India. In Rural Litigation and Entitlement Counter v. State of U.P. : [1987]1SCR641 , the Apex Court directed the Government to take policy decision & fairly implement it for striking proper balance. It was a case which involved issues relating to environment and ecological imbalance,
13. In view of the above decisions, there is no merit in the contention-raised by Shri Rathore that no such direction can be issued for evolving a policy in the matter of transfer by the State Government. In the facts and circumstances of the case, we are of the opinion that this Court is competent to issue directions to the State Government to frame executive instructions/ guidelines regarding transfers of State employees in the absence of statutory rules.
14. In the premises aforesaid, we allow this writ petition and issue a direction to respondent No. 1 to issue administrative instructions or guidelines relating to transfer of State Government employees particularly Class-Ill and Class-IV, keeping in view the observations made in this judgment and judgments of the Supreme Court and this Court and shall lay down a direction in the policy or instruction that the authority who is invested with the power of transfer shall strictly follow the same and in the case of non-compliance of the same, he should be made answerable. This direction given in this judgment may be complied with within a period of six months and the administrative instructions/guide-lines or policy shall be published for general information.
15. The parties are left to bear their own costs.