JUDGMENT
Sunil Kumar Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 13.12.2000 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned transfer order dated 10.8.2000 (Annex. 4) passed by the respondent No. 5 Dy. Secretary. Medical and Health Department, Jaipur by which the petitioner was transferred from Medical College, Bikaner to Medical College, Ajmer and the respondent No. 3 Dr. Megh Raj Bardiya was transferred from Medical College, Ajmer to Medical College, Bikaner and the order dated 30.11.2000 (Annex. 6) passed by the respondent No. 4 Rajasthan Civil Services Appellate Tribunal, Jaipur by which the appeal of the petitioner was dismissed, be quashed and set aside qua the petitioner and the petitioner be allowed to work in Medical College, Bikaner.
2. It arises in the following circumstances:
The petitioner was initially appointed on the post of Medical Officer on 5.9.1990 and, thereafter, he was selected through Rajasthan Public Service Commission and was given posting as Assistant Professor in Radio-therapy in S.N. Medical College, Jodhpur vide order dated 3.8.1991.
On 19.2.1992, the petitioner was ordered to be transferred from S.N. Medical College, Jodhpur to S.P. Medical College, Bikaner and again on 28.1.1998, the petitioner was transferred on the post of Associate Professor and was given posting at J.L.N. Medical College, Ajmer.
Thereafter, on 29.6.1999 through Annex. 1 the petitioner was ordered to be transferred from J.L.N. Medical College, Ajamer to S.P. Medical College, Bikaner and in pursuance of that order, the petitioner joined his duty at S.P. Medical College, Bikaner on 3.7.1999.
The further case of the petitioner is that by the same order Annex. 1 dated 29.6.1999. the respondent No. 3 was also ordered to be transferred from Bikaner to Ajmer, but the respondent No. 3 did not execute the said order and he was adjusted at Bikaner itself against the post of Associate Professor, Forensic Medicines vide order dated 7.7.1999 (Annex. 2).
The further case of the petitioner is that though the respondent No. 3 was working at Bikaner for the last 17 years and he had not executed the transfer order Annex. 1, all the same he was even adjusted against the post of Associate Professor in Forensic Medicine, whereas he was Associate Professor in Radio-therapy.
It was further submitted by the petitioner that since thereafter, the State Government decided to send all the persons to their respective posts in their subject, therefore, the respondent No. 3, who was working on the post of Associate Professor in Forensic Medicines for which he was not qualified, therefore, he was transferred vide order dated 17.5.2000 and was posted as Associate Professor in Radiotherapy at Ajmer and he was relieved for joining his duty at Ajmer on 7.8.2000 and for that, order Annex. 3 dated 7.8.2000 may be referred to.
Thereafter, vide impugned order dated 10.8.2000 (Annex. 4), the respondent No. 3 was again transferred from Medical College, Ajmer to Medical College, Bikaner in place of the petitioner and the petitioner has been transferred from Medical College, Bikaner to Medical College, Ajmer in place of respondent No. 3.
The further case of the petitioner is that the respondent No. 3, who was ordered to be relieved on 7.8.2000 through Annex. 3 for joining his duties at Ajmer, was again transferred within three days from Medical College, Ajmer to Medical College, Bikaner in place of the petitioner and the petitioner has been transferred from Medical College, Bikaner to Medical College, Ajmer in place of the respondent No. 3 through order Annex. 4 dated 10.8.2000 and thus, the respondent No. 3 has been adjusted at Bikaner and this order Annex. 4 has been issued at the instance of respondent No. 3 and therefore, this order Annex. 4 dated 10.8.2000 is malafide and the same has been challenged by the petitioner in this writ petition.
The petitioner approached the Rajasthan Civil Services, Appellate Tribunal, Jaipur (for short “Tribunal”) but with no success and his appeal was dismissed by the Tribunal through order Annex. 6 dated 30.11.2000. Hence, this writ petition with the prayer as stated above.
In this writ petition, the main contention of the learned Counsel for the petitioner is that the impugned order Annex. 4 dated 10.8.2000 by which the petitioner was transferred from Medical College, Bikaner to Medical College, Ajmer and the respondent No. 3 was transferred from Medical College, Ajmer to Medical College, Bikaner is a malafide order as this order was issued at the instance of respondent No. 3 for the purpose of adjusting him at Bikaner.
A reply to the writ petition was filed by the respondents No. 1, 2 and 5 and in that reply, it was submitted by them that the transfer being incident of service is not open to challenge on the grounds raised by the petitioner in this writ petition. It has been admitted by the respondents No. 1, 2 and 5 that no doubt the respondent No. 3 was posted against the vacant post of Associate Professor (Forensic Medicines) vide Annex. 2 and the submission that the respondent No. 3 was working at Bikaner for the last 17 years is of no consequence or has no bearing and transfer order can be challenged when there is malafide and the petitioner has failed to point out any malafide and violation of any rules or policy and as such, this Court should not interefere with the impugned transfer order. Hence, the writ petition filed by the petitioner be dismissed.
The respondent No. 3 has also filed a reply to the writ petition and it has been submitted by the respondent No. 3 that all transfers were made on administrative exigencies and therefore, they are not liable to be quashed. Hence, the writ petition filed by the petitioner be dismissed.
During the course of arguments, the learned Counsel for the respondents has produced the copy of the order dated 18.4.2001 issued by the Principal, SP Medical College, Bikaner stating that no doubt the petitioner was relieved on 17.8.2000 for joining his duties at Medical College, Ajmer as Associate Professor, Radio-therapy, but because of the stay order passed by this Court, he is continuing at Medical College, Bikaner and the respondent No. 3 is also working in Medical College, Bikaner meaning thereby at present both the petitioner and the respondent No. 3 are working in Medical College, Bikaner.
3. I have heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents and gone through the materials available on record.
4. It may be stated here that this Court on 21.12.2000 passed an interim order that status quo existing on that day regarding the posting of the petitioner shall be maintained and it has been admitted at bar that today, the petitioner is working as Associate Professor in Radio-therapy in the SP Medical College, Bikaner meaning thereby the impugned order Annex. 4 dated 10.8.2000 transferring the petitioner from SP Medical College, Bikaner to Medical College, Ajmer has become redundant qua the petitioner.
5. From perusing order Annex. 1 dated 29.6.1999. It appears that the petitioner was transferred from Medical College, Ajmer to Medical College, Bikaner and the respondent No. 3 was transferred from Medical College, Bikaner to Medical College, Ajmer vice-versa, but through order Annex. 2 dated 7.7.1999, the respondent No. 3 was adjusted at Bikaner while posting him as Associate Professor, Forensic Medicines in Medical College, Bikaner and through Annex. 3 dated 7.8.2000, it is also clear that to make compliance of the transfer order Annex. 1 dated 29.6.1999, the respondent No. 3 was ordered to be relieved on 7.8.2000 for joining his duties at Medical College, Ajmer, but, again through impugned order Annex. 4 dated 10.8.2000, the respondent No. 3 was transferred from Medical College, Ajmer to the Medical College, Bikaner and the present petitioner was transferred from Medical College, Bikaner to Medical College, Ajmer.
6. Thus, it is clear that the respondent No. 3 was transferred within three days from the Medical College, Ajmer to Medical College, Bikaner vide impugned order Annex. 4 dated 10.8.2000 and prior to that, he was also adjusted at Bikaner while posting him against the post of Associate Professor, Forensic Medicines, for which he was not qualified.
7. Since in this case the question of transfer of doctors of Medical Colleges is involved, therefore, some thing should be said about transfer policy in general and particularly in respect of doctors.
8. The word “transfer” means the movement of a Government servant from one headquarter station in which he is employed to another such station either.
(a) to take up the duties of a new post, or
(b) in consequence of change of his headquarters.
9. Transfer in relation to service, reduced to simple terms, means a change of place of employment within an organisation. It is an incident of public service and, generally, does not require the consent of the employee.
10. Before proceeding further it may be stated here that doctors attached with various Medical Colleges in State of Rajasthan are public servants and therefore, they should be transferred like other public servants and there should remain no doubt on this aspect nor it can be said that they are immune from being transferred.
11. Why a person is transferred, the Hon’ble Supreme Court in B. Varadha Rao v. State of Karnataka AIR 1986 SC 287 has noted that continued posting at one station or in one department is not conducive to good administration. The Hon’ble Supreme Court pointed out that such continued posting creates vested interest and that even from the British times the general policy has been to restrict the period of posting for a definite period. In that case, the Hon’ble Supreme Court also pointed out the desirability of restricting transferability to superior or more responsible posts than Class III and Class IV employees. It follows from the observations of the Hon’ble Supreme Court in B. Varadha Rao’s case (supra) that only when the post itself is non-transferable or there is a special stipulation in the contract to such effect that transferability cannot be in issue.
12. As already stated above, the transfer is an implied condition of service and no consent is necessary for making a transfer of Government servant and so far as the exercise of power when transfer should be effected is concerned, it may be stated here that power should be exercised in administrative exigencies. The power vested in a public body to transfer any official must be exercised honestly, bona fide and reasonably. It should be used in the interest of public purpose. If the power is used on extraneous consideration or for achieving an alien purpose or on oblique motives, its use would be mala fide and any colourable exercise of that power would, therefore, be struck down by the Court.
13. In Mr. Shilpi Bose v. State of Bihar , Union of India v. S.L. Abbas. N.K. Singh v. Union of India and Ors. and State Bank of India v. Anjan Sanyal and Ors. , the Hon’ble Supreme Court has laid down the following principles pertaining to transfer policy:
(1) That an order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
(2) That the Court should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide.
14. On malafide, it can be said that the principal test of a due and proper exercise of the power is to ask the question: Was the transfer made for real administrative exigency? In finding the answer the Court might have to pierce the veil of the transfer order and see what was the operative reason for the transfer. If the findings reveal a nexus with administrative necessity, the exercise of the power will be upheld. If however, the operative reason has no such nexus then the transfer will be vulnerable. In the latter case it will be a malafide use of power and will take within its sweep all situations where the nexus with administrative exigencies is absent. It needs to be emphasised that in the present context malafide is not limited to the personal malice of the authority making the transfer. Malafide has two components i.e. malice in law and malice in fact.
15. It may be stated here that if the transfers are made in order to adjust particular persons with no reasonable basis, such type of transfers can be termed as malafide one and liable to be quashed.
16. On exigencies of administration, it can be said that the exigencies of administration or administrative exigency only means the need or demand for running a good administration. As the Hon’ble Supreme Court has pointed out in K.B. Shukla v. Union of India :
The responsibility for good administration is that of the Government. The maintenance of an efficient, honest and experienced administrative service is a msut for the due discharge of that responsibility. Therefore, the Government alone is a best suited to judge as to the existence of exigencies of such a service requiring appointments by transfer. The term “exigency” being understood in its widest and pragmative sense…
17. It may be stated here whether the transfer was for the needs of good and efficient administration must depend on the facts and circumstances of each case.
18. The Hon’ble Supreme Court in C.G.M. v. Rajendra that no Government Servant has any legal right to insist for being posted at any particular place.
19. Thus, on transfer, it can be concluded:
(1) That transfer is an incident of service and it does not require the consent of the employee.
(2) That a public servant has no vested right to seek transfer to a location of his choice.
(3) That transfer can be made on administrative exigencies and in public interest.
(4) That transfer can be made for good and efficient administration.
(5) That continued posting at one station is not conducive to good administration.
(6) That continued posting of a public servant at a particular place creates vested interest and therefore, after a reasonable period at a particular place, he should be transferred even though he may be a good administrator, expert and skilled in his branch (a doctor might be), honest and hard worker.
20. The same principles of transfer, as discussed above, should be made applicable to all doctors attached with various Medical Colleges of State of Rajasthan, as they themselves are Government Servants and should be transferred in the same manner as the Government Servants are transferred.
21. It is generally observed that doctors attached with the Medical Colleges are not transferred in a routine manner as other Government Servants are transferred. Therefore, their continued posting at one place is not conducive to good administration especially for hospital services. Apart from this, the long stay at a particular place creates vested interest and encourages private practice and sometimes in the above eventuality, the possibility that Government work especially in hospitals attached with the Medical Colleges is suffered, cannot be ruled out. Furthermore, keeping a person at a particular place for a long period leads to arrogancy and obstinacy in his behaviour towards the public at large.
22. Sometimes it is also observed that in order to accommodate a particular doctor, he is posted against the post meant for other subject/branch for which he was not qualified, as has been done in the present case as the respondent No. 3 was posted against the post of Associate Professor, Forensic Medicines, whereas he was Associate Professor, Radio-therapy. This is not a good practice and it should be stopped.
23. So far as the facts of the present case in hand are concerned, since the petitioner is continuing on the post of Associate Professor, Radio-therapy and the impugned transfer order Annex. 4 dated 10.8.2000 qua the petitioner has become redundant because of the stay order passed by this Court and furthermore, since the impugned order Annex. 4 was passed in order to accommodate or adjust the respondent No. 3 at Bikaner and for that, the petitioner was transferred from Banker to Ajmer and that it was not passed on administrative exigency or in public interest, therefore, the impugned order Annex. 4 dated 10.8.2000 qua the petitioner can be classified as malafide one and, thus, the same cannot be sustained and liable to be quashed.
24. For the reasons stated above, this writ petition deserves to be allowed and the impugned order Annex. 4 dated 10.8.2000 transferring the petitioner from Medical College, Bikaner to Medical College, Ajmer is liable to be quashed and set aside qua the petitioner.
Accordingly, this writ petition filed by the petitioner is allowed and the impugned transfer order dated 10.8.2000 (Annex. 4) passed by the respondent No. 5 Dy. Secretary, Medical and Health Department, Jaipur qua the petitioner is quashed and set aside. However, the respondent No. 1 is free to make further transfer of the petitioner in future, if the administrative exigency arises and this order would not come in his way.
Since some thing has been said about the transfer policy in general and in particular of doctors attached with various Medical Colleges, therefore, a copy of this order be sent to the Chief Secretary, Government of Rajasthan, Jaipur, with the hope that rational policy of transfer based on equity, impartiality and fairness covering all type of doctors attached with various Medical Colleges in the State of Rajasthan would be formulated.
No order as to costs.