S.P. Talukdar, J.
1. Admittedly, the petitioner joined the Border Security Force (in short, BSF) as a Constable on 6th January, 1973. He was promoted to the rank of Sub-Inspector on 26th April, 1982. He became Inspector on 10th April, 1993 and thereafter, was promoted to the rank of Assistant Commandant on 22nd July, 2004. Since June, 2004, his son, as a patient of Dilated Cardio Myopathy, was under treatment of Christian Medical College & Hospital, Vellore. He is at present under treatment of Burdwan Medical College & Hospital and also B.S.F. Hospital at Digberia. After examination by the Medical Board constituted by the Principal of Burdwan Medical College & Hospital, he was found to be physically handicapped due to the said ailment. The petitioner is the only bread earner of the family and is at present burdened with such handicapped son. While posted as a Company Commander under 106 Battalion NDRF, respondent No. 5 initiated a disciplinary proceeding against him by issuing charge sheet for commission of offence under Section 40 and Section 46 of the Border Security Force Act. By order dated 22nd August, 2007, the Inspector General conveyed the General Security Force Court trial against the petitioner on and from 30th August, 2007 and such trial was completed on 10th September, 2007. The General Security Force Court awarded punishment of reprimand and forfeiture of one year seniority for the purpose of promotion subject to confirmation by the Director General under Section 107 and Section 108 of the Border Security Force Act. The entire proceeding was forwarded by the Law Officer to the confirming authority. The petitioner made an application before the Director General praying for setting aside the order of punishment. The said application is still pending awaiting decision by the confirming authority being the Director General, Border Security Force.
2. While the petitioner on leave, the Director General sent a signal on 18.10.2007 to the Commandant, 106 Battalion, NDRF for passing necessary order for transfer and the Commandant passed the order of transfer on 24.10.2007. The same was served upon the petitioner on 3rd November, 2007. He was, thus, transferred to 122 Battalion Border Security Force at Jammu & Kashmir.
3. After completion of leave, he was discharged of his duty from 21.10.2007 to 2.11.2007 at Krishanganj Sector Headquarter, Siliguri North-Bengal Frontier Headquarter and Coochbehar Sector Headquarter for auction of different condemned vehicles and after completion of the said duty, he joined in 106 Battalion NDRF on 3rd November, 2007 and after joining, he received the order of transfer dated 24th October, 2007 from the office of the Commandant. The petitioner made an application seeking personal interview and accordingly, the Second-in-Command took personal interview on 5th November, 2007. The authority, however, expressed its inability as regards modification and/or recalling the order of transfer, which was, thus, issued by the Director General.
4. The petitioner assumed charge to the post of Assistant Commandant in 106 Battalion on 16th November, 2004 and following the BSF (Tenure of Posting and Deputation) Rules, 2000, his tenure will be completed in October, 2010. The petitioner claimed that before completion of the tenure of six years, the transfer order made by the authority concerned is in clear violation of Rule 6 and as such, it is liable to be quashed.
5. Rule 14 of the said Rules provides that posting and transfer order shall be issued by the competent authorities by April and strictly in order of seniority-cum-merit of the individual case. But the impugned order of transfer having been issued on 24th October, 2007 is in clear violation of Rule 14.
6. The petitioner in the writ application further claimed that since the order of punishment awarded by the General Security Force Court is under confirmation as per provision of Sections 107 and 108 of the BSF Act, the impugned order of transfer by the Director General being respondent No. 2 herein would amount to be one punishment before confirmation and it is clearly a penal transfer. The authority concerned, though fully aware of the serious ailment of the petitioner's eldest son, who even requires a pace maker or heart transplantation, was not justified to issue such order which reflects vindictive attitude on its part.
7. The petitioner filed a Writ application being W.P. No. 15424 (W) of 2007 challenging the legality and validity of the charge sheet and the disciplinary proceeding. The same is pending before this Court. During pendency of the said writ application, the authority concerned with a mala fide intention issued such order of transfer.
8. There could be no administrative reason or exigency nor any involvement of public interest in issuance of such transfer order. The petitioner, in such circumstances, approached this Court with the instant application praying for quashing of the said order of transfer whereby he has been shifted to the Battalion at Jammu & Kashmir.
9. The present application has been contested by the respondent authorities by filing Affidavit-in-Opposition. The respondent authority claimed in such Affidavit-in-Opposition that during the service tenure of the writ petitioner as an Assistant Commandant, 106 Battalion at Digberia, various complaints were received by the higher authority. This led such authority to order a Record of Evidence against the petitioner in July, 2006 for offence committed under Sections 40 and 46 of the BSF Act. He was tried by the General Security Force Court and was awarded the sentence being 'to take rank and precedence as if his appointment to the rank of Assistant Commandant born dated 22nd July, 2005 instead of 22nd July, 2004 and to be severely reprimanded.'
10. During the course of such disciplinary proceedings, the petitioner filed a writ application and sought for interim relief. Being denied, he filed an appeal. By order dated 8th August, 2007 passed in the appeal being M.A.T. No. 2492 of 2007 and C.A.N. No. 6734 of 2007, the Hon'ble Division Bench disposed of the same with the following direction:
Respondent authorities to continue and conclude the proceeding in respect of the appellant herein and also to pass final order but the same shall not be given effect to till the final disposal of the writ petition.
11. The petitioner was posted to 122 Battalion in public interest in compliance with the order of the Director General of BSF. He was given movement order on 3rd November, 2007, which he refused to receive. Thereafter, he rushed to the Vacation Bench of this Court and got an ex-parte interim order directing the authority not to give effect and/or further effect to the transfer order dated 24th October, 2007 for a specific period. The petitioner, however, received the movement order, which contains release order, on 5th November, 2007. Even after being so released, he moved the application before the Vacation Bench on 7th November, 2007 and obtained an interim order by suppressing the facts. The performance of the petitioner, as Assistant Commandant, is not satisfactory. This can be assessed from the following incidents:
(i) Due to his poor operational planning Ct. Rajendra Kumar of his Coy was killed by the Bangladeshi miscreants on 12th June, 2006.
(ii) Vide following letters, the petitioner was issued with warnings and advisory letter as per details given below:
(a) A warning was issued to him vide letter No. XCB/703/2005 dated 10th September, 2005.
(b) A warning was issued to him vide letter No. XCB/957/2005 dated 29th December, 2005.
(c) An advisory letter was issued to him vide letter No. XCB/1115 dated 5th July, 2006.
12. The petitioner was superseded twice during his career due to his poor performance and poor conduct. The petitioner's son is suffering from the post-viral liver dysfunction, dilated cardio mayopathy and was taken to Vellore for treatment. He had been advised for review after one year. The petitioner, however, did not follow of the treatment in the desired manner. The petitioner has served in Battalion located at Digberia for more than five years. He had been posted to 122 Battalion by the order of the Director General of BSF in public interest. Such order is certainly not a penal transfer, but is for the public interest. In such circumstances, the respondent authority sought for dismissal of the writ application.
13. It is well settled that an order of transfer made by the competent authority does not ordinarily deserve to be interfered with by the writ Court.
14. In the case of National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan as reported in : (2001)IILLJ1243SC , the Apex Court held that 'no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Court or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned.'
15. Deriving inspiration from the decision in the case of Union of India and Ors. v. Janardhan Debanath and Anr. as reported in : (2004)IILLJ1057SC , the Apex Court held that the question whether transfer in a particular case was in the interest of public service requires factual adjudication. Examination of that question by High Court in its jurisdiction under Article 226 of the Constitution is impliedly not permissible.
16. On behalf of the respondent authority, attention of the Court was invited to the decision in the case of Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. as reported in : (2004)12SCC299 , in support of the contention that unless an order is clearly arbitrary or vitiated by mala fide or infraction of any prescribed norms of principles governing the transfer, such transfer order must not be interfered with. The Apex Court in an earlier case between State Bank of India v. Anjan Sanyal and Ors. as reported in : (2001)ILLJ1687SC , observed that unless mala fide, or prohibited by service rules, or passed by an incompetent authority, the order of transfer should not be lightly interfered with in exercise of a Court's discretionary jurisdiction.
17. In the case of Shilpi Bose v. State of Bihar as reported in : (1991)IILLJ591SC , it was held that a government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department.
18. In the case of Union of India v. S.L. Abbas as reported in : (1993)IILLJ626SC , the Apex Court observed that 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. It was further observed that the departmental guidelines cannot even confer upon the government employee a legally enforceable right.
19. Relying upon the said decisions in the case of Shilpi Bose (Supra) and Union of India v. S.L. Abbas (Supra), the Apex Court in the case of Major General J.K. Bansal v. Union of India and Ors. as reported in : AIR2005SC3341 , refused to interfere with an order of transfer in absence of any substance in the allegation that such order was mala fide.
20. Learned Counsel for the respondent authority, relying upon the decision in the case of S.C. Saxena v. Union of India and Ors. as reported in (2006) 9 SCC 583, submitted that a government servant cannot disobey a transfer order by not reporting at the place of posting. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems.
21. In fact, as mentioned earlier, there is hardly any scope for controversy regarding the principles relating to the scope of judicial review in matters of transfers of the employees of the government or the public undertaking.
22. It is well settled that transfer is an incidence of service and normally should not be interfered with by Courts. Ref: Public Services Tribunal Bar Association v. State of U.P. and Anr. as reported in : [2003]1SCR666 . In the said case, it was held that in an extreme and rare case where the order is passed mala fide or without following the procedure under the law, the employee can certainly approach the High Court under Article 226 of the Constitution - even for interim relief.
23. It may be worth mentioning that Mr. Justice Frankfurter in Vitarelli v. Seaton Ref: 3 LEd 2d 1012 (1959) said:
An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.
24. Such principle, as laid down by Mr. Justice Frankfurter, has been accepted as applicable in India by the Apex Court in the case of Amarjit Singh Ahluwalia v. State of Pubjab as reported in : (1975)ILLJ228SC .
25. Referring to the factual backdrop of the present case, it was submitted by Mr. Bandopadhyay that how far an action is mala fide can only be assessed or ascertained by going deep into the matter. Mala fide is not necessarily manifested in clear language. There is need for lifting the veil. In an attempt to gather the real intention, the Court cannot afford to miss the woods for the trees. There may always be something more than what meets the eyes. The mala fide essentially means bad faith. It is explained as 'dishonesty of belief or purpose'. (Ref: Black's Law Dictionary).
26. As mentioned there, 'a complete catalogue of bad faith is impossible, but the following types are among those recognized in judicial decisions: Evasion of the spirit of the bargain, lack of diligence and slacking off, wilful rendering of imperfect performance, abuse of a power to specify terms and interference with or failure to co-operate in the other party's performance.'
27. An action taken by the authority can very well be said to be vindictive, if it is found that a person has been singled out for exercising a constitutionally protected right.
28. After giving due regard to the submission made by learned Counsel for the parties, it may very well be said that Court should ordinarily maintain distance when an order of transfer is under challenge before it. Alter all, it is the administrative authority, which will in all probability be in a better position to assess the situation, the demand of the administration and the problem of an individual employee. But when the vision of such authority is unreasonably obstructed, when it refuses to see what is before it, it declines to hear what is attempted to be poured into his ears, the person in distress is left with no choice. Such an employee, thus, may be under painful compulsion to approach this Court for necessary redress, when his grievances ventilated before the authority turns out to be a cry in the wilderness.
29. In such an extreme situation, it is neither desirable nor possible for this Court to remain indifferent. This Court cannot close its doors and shut its eyes, when it finds that an individual employee has been reasonably victimized and that too with a mala fide intention.
30. In the present case, the respondent authority in the Affidavit-in-Opposition has specified instances reflecting complaints and grievances against the writ petitioner. There is unconscious reflection of the sub-conscious mind. Admittedly, the writ petitioner approached this Court earlier challenging a disciplinary proceeding. It is not denied that the said case is pending. True, mere pendency of the case does not prevent the authority concerned from issuing an order of transfer. But the fact remains that his transfer to a far distance place may create difficulty in his taking appropriate steps in connection with the said case. There is no controversy that the eldest son of the writ petitioner is having serious ailment, which needs effective follow up treatment. It cannot be said that the writ petitioner is in his present posting for an unduly long period. Such transfer order has been issued in the month of October, which apparently is a departure from the established norm.
31. All these facts and circumstances harmoniously combine so as to suggest that the impugned order of transfer was issued in a vindictive manner. Being infected with mala fide, such order of transfer cannot pass the test of judicial scrutiny and certainly, deserves to be quashed.
32. Accordingly, the present writ application being W.P. No. 24272 (W) of 2007 be allowed and the impugned order of transfer dated 24th October, 2007 being Annexure' P-5' at page 30 to the writ application is quashed.
33. This consequently cancels all further actions taken following the order of transfer dated 24.10.2007. This, however, does not prevent the concerned respondent authority from taking necessary steps or initiating appropriate action in accordance with the rules.
34. There is no order as to costs.
35. Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.