JUDGMENT
J.C. Verma, J.
1. The petitioner is aggrieved against the order dated 21.6.2001 (Annexure-9) when he has once again been transferred from General Hospital, Alwar to CHC, Kotkasim in place of Dr. Prem Mittal, respondent No. 4 who had been ordered to take over at General Hospital, Alwar from Kotkasim.
2. This case has chequered history of transfers. The petitioner is a Junior Specialist (Medicines). He was initially transferred on 12.3.1999 from Kishangarhbas to Genera] Hospital, Alwar vide order dated 12.3.1999, copy of which is attached as Annexure-1, After about one year four months, he was displaced from General Hospital, Alwar to CHC, Reni. One Dr. S.K. Yadav had replaced him vide order Annexure-2 on 22.7.2000. The petitioner was of the opinion that there was no administrative exigency for transferring him on 22.7.2000 to Reni and, therefore, had challenged the order dated 22.7.2000 by filing an appeal before the Rajasthan Civil Services Appellate Tribunal being appeal No. 1361/2000 which appeal was allowed on 19.9.2000 and the order Annexure-2 dated 22.7.2000 was set aside. The Appellate Tribunal was of the opinion that the petitioner could not have been transferred within a period of 1 year 4 months without any administrative reasons. Dr. S.K. Yadav who was effected party in the aforesaid order of the Tribunal challenged the order of the Tribunal by filling Civil Writ Petition No. 4506/2000 but the writ petition was dismissed on 23.10.2000, meaning thereby the posting order of the petitioner in General Hospital, Alwar was maintained. The petitioner was put back in General Hospital, Alwar vide order dated 16.10.2000 by relieving Dr. S.K. Yadav on 21.10.2000 who was asked to join back at his earlier place of posting at Reni vide Annexure-3.
3. Just after 2-1/2 months when the petitioner was posted back at General Hospital, Alwar, another order was passed on 19.1.2001 transferring the petitioner to Kotkasim by replacing him by Dr. Prem Mittal, who was transferred from CHC Kotkasim to General Hospital, Alwar vide Annexure-4. The petitioner was naturally shocked of such a transfer immediately after about 2 months when he had successfully challenged the order of earlier transfer. The petitioner once again filed an appeal before the Service Tribunal being Appeal No. 318/2001. The Tribunal vide order dated 14.2.2001 had directed the petitioner to file the representation before the Government. The petitioner was aggrieved against the order of the Tribunal and, therefore, challenged its order dated 14.2.2001 in Civil Writ Petition No. 759/2001 before the High Court. The High Court had stayed the operation of the order. Notice was issued to the State. The State in its wisdom withdrew the order dated 19.1.2001 vide its order dated 23.3.2001, copy of which is attached as Annexure-5 to the writ petition. The posting was reversed, the petitioner was once again directed to take over in General Hospital, Alwar and respondent No. 4 was sent back to Kotkasim. Faced with this situation and for the reason that earlier impugned order dated 19.1.2001 stood withdrawn, the writ petition No. 759/2001 was dismissed for having become infructuous. However, while dismissing the writ petition the Hon’ble High Court had kept it open for the State Government to pass the transfer order if the circumstances so require on the administrative reasons, copy of the order of the High Court dated 10.4.2001 is attached as Annexure-6. The State Government yet passed another order dated 21.6.2001 transferring the petition for Alwar to Kotkasim. The order even though may not be malafide, but it was passed because of malice in law, it is alleged. It is further submitted that the order dated 19.1.2001, the earlier order, was withdrawn by the respondent No. 1 vide Annexure-5 and his writ petition was got dismissed as infructuous and after such a withdrawal order having been passed, the petitioner could not have been transferred and no fresh order ought to have been passed against the petitioner.
4. Reply has been tiled by the respondents. The facts as stated are not disputed. It is stated that it is upto the employer to pass an order of transfer if the circumstances so require or oh the administrative reasons and for the contingencies of the administration and transfer order unless it is passed as malafide or by way of victimization, it is not to be interfered by the courts.
5. There is no dispute so far the exercise of power of this Court in regard to interference in the transfer orders are concerned, but in the given case the court can go into the matter where the order has been passed with malice in law or not. To me, the present case seems to be as one of such case where interference is required. The following details as discussed above are necessary to be given:
(1) The petitioner was ordered to be posted at General Hospital, Alwar on 12.3.1999: (2) after on year and four months, he was transferred to Reni vide Annexure-2; (3) Annexure-2 was challenged and transferred to Reni was setaside by the Tribunal on 19.9.2000; (4) order of the Tribunal challenged by Dr. S.K. Yadav in Civil Writ Petition No, 4506/2000, which writ petition was dismissed on 23.10.2000; (5) order of the Tribunal stood confirmed by the High Court; (6) the petitioner allowed to continue at General Hospital, Alwar vide order dated 16.10.2000 but still the petitioner was transferred to Kotkasim on 19.1.2001 vide Annexure-4; (7) Annexure-4 was challenged in Writ Petition No. 759/2001; (8) the order dated 19.1.2001 transferring the petitioner to Kotkasim was cancelled vide Annexure-5; (9) the petitioner was posted back at General Hospital, Alwar; (10) Writ Petition No. 759/2001 was dismissed as infructuous on 10.4.2001 as order dated 19.1.2001 was withdrawn; (11) the writ petitioner was again transferred to Kotkasim on 21.6.2001.
6. The court had ordered the respondents to produce the record. The fresh order Annexure-9 seem to have been passed on the representation of the respondent No. 4. There is nothing on the file putting any proposal for re-transferring the petitioner to Kotkasim right upto 1.6.2001. The Deputy Secretary (Admn.) had asked Shri Jain to discuss on 1.6.2001 vide note No. 54 and Note No. 55 says that the writ petition of the petitioner has been dismissed and, therefore, the petitioner be shifted to Kotkasim. It was put to the Health Secretary and the Minister. The orders were accordingly immediately passed.
7. After hearing learned Counsel for the parties and after perusing the record, I do find merit in the submission made by the petitioner. Whole of the case of the petitioner and the respondent revolves on the posting at General Hospital, Alwar displacing him to Reny and again take to General Hospital, Alwar and again displacing him to Kotkasim and then withdrawing the order of transfer from Kotkasim and posting him back to General Hospital Alwar in March, 2001 and again in June 2001 retransferring to Kotkasim. The agony of the petitioner starts when he was transferred to Reny from General Hospital, Alwar. He had successfully challenged the same before the Appellate Tribunal. The Appellate Tribunal had setaside the order on 19.9.2000 which was confirmed by the High Court in Civil Writ Petition No. 4506/2000 i.e. the observations and the reasons for the Appellate Tribunal in case No. 1361/2000 of the fact that the petitioner had been unnecessarily displaced just after about 16 or 18 months of earlier transfer and that there was no administrative reasons were upheld. The State Government ought to have given respect to such a judicial order. After implementing the order in October, 2000 an just after 3 months, the petitioner again stood transferred from General Hospital, Alwar to Kotkasim to accommodate the respondent No. 4. It makes no difference whether the petitioner is displaced by Dr. S.K. Yadav as was done at earlier time or this by respondent No. 4 Dr. Prem Mittal but the fact remains that the judicial order was not given respect to and the petitioner was again displaced for Kotkasim on 19.1.2001. The petitioner had challenged this order ultimately in appeal but the order dated 19.1.2001 was cancelled vide Annexure-5 and the petitioner was put back to General Hospital, Alwar. The writ petition was dismissed as infructuous. Even though it was mentioned in the order of the writ petition that it is always open to the respondent to transfer the employees on the administrative reasons but is seems that the respondent had taken that the writ petition has been dismissed on merits. Even though the Deputy Secretary (Admn.) had only passed the order that because writ petition has been dismissed, therefore, the petitioner should be sent back to Kotkasim. In my opinion, this cannot be treated as an order passed in exigency of administration. If the State Government was to re transfer the petition, there was hardly any necessity of the State Government to have cancelled the order dated 19.1.2001 vide Annexure-5. The State Government could have very easily contested the Writ Petition No. 759/2001 filed by the petitioner, but got is dismissed as infructuous. The impugned order dated 19.1.2001 was cancelled by the State Government itself. If the order had been cancelled on 23.3.2001 vide Annexure-5 and the petitioner was put back at his original post at General Hospital, Alwar and the writ petition got dismissed as infructuous. I do not see any reason except the malice in again repeating the order dated 19.1.2001 which stood withdrawn by the State itself. The reasons given by the Tribunal vide its order dated 19.9.2000 were still in existence. If the contention of the, respondent is accepted, a judicial order passed by the Appellate Tribunal and confirmed by the High Court shall loose its importance and sanctity. Of course, it is true, that the State has powers to transfer an employee on administrative reasons, but were there any reasons at all on the file. If there was any administrative reason, the court cannot look behind that administrative reason, but in the present case the order passed by the Tribunal and confirmed by the High Court was to be respected by the respondent. It seems that the petitioner was being lodged and disclosed, posted and dislocated time and again repeatedly not for exigency of the administration, but for certain extraneous reasons i.e. only because there was one representation of respondent No. 4 for transferring such respondent to General Hospital, Alwar wherein he had stated that the writ petition had been dismissed as infructuous, but that did not debar the State Government to retransfer the petitioner. In ordinary circumstances this Court would have been reluctant to interfere in any transfer order but here is a case which speaks volumes. Action of the respondent does not seem to be bonafide. Even though the normal tenure of a Government officer according to the instructions is said to be 3 years at one station, but if the circumstances so warrant, the employee could be transferred even before the expiry of the said period, but here in the case the Appellate Tribunal had given a clear finding and mandate when the initial transfer of the petitioner was set aside. The State functionaries, instead of acting on the whims or on extraneous reasons ought to have respected the orders passed by the judicial authorities which some how they had omitted to look into.
8. For the reasons mentioned above. I set aside the order impugned with the direction that the petitioner shall be allowed to continue at General Hospital, Alwar. The petitioner has been unnecessarily dragged into multiple litigation by the State which litigation could have been avoided and thus in my opinion, it is a fit case where the petitioner should be entitled’ to a cost of Rs. 3,000/-.
9. The writ petition is allowed accordingly.