JUDGMENT
J.R. Chopra, J.
1. Hearrd learned Counsel for the parties. The case of the petitioner is that he is Ranger Gr. I, which is a Gazetted post. He was earlier working at Phalodi. However, on account of his faily circumstances, he made request that he be transferred some where at Bikaner and there for, vide order Ex. 1. dated 13.9.1989, he was transferred to Bajju in District Bikaner. It is alleged that in Pursuance of order Ex. I, the petitioner joined his duties at Bajju on 26.9.1989 and he is still working there. However an order Ex. 4 dated 29.9.1989 came to be passed by the principal Chief Conservator of Ferest, Jaipur there by the order Ex. 1 dated 13.9.1989 was cancelled. Actually, vide Order Ex. I, dated 13.9.1989 Shri Narpat singh Rajpurohit, the petitioner in this case, was posted as Forest Ranger at Bajju and Shri Mahaveer Prasad Bhati, who was working on that post was put under a waiting orders.
2. The contention of the petitioner is that now he has joined as Forest Rangerr at Bajju in pursuance of the order Ex. 1 and, therefore, he cannot be re-transferred unless the permission is sought from the State Govt. It is true that he was transferred to Bajju at his own request keeping in view his family circumstances but the respondents, in order to side with Shri Mahaveer Prasad Bhati have not relieved him and they have cancelled the Order Ex. I. According to the petitioner, the cancellation of Order Ex. I amounts to a fresh order because the Order Ex. I has already been complied with and it has been executed. He has submitted that fresh order can be made only when the permission is sought from the Govt, in case the officer is transferred within a period of two years. He has further submitted that vide order Ex. 4 he has been transferred back to Phalodi prior to two years of his transfer from Phalodi to Bajju. According to the petitioner, the cancellation of his transfer vide Order Ex. 4 is mala fide because it has been done in order to accommodate Shri Mahaveer Prasad, who does not want to leave that place. It was submitted that earlier Shri Mahaveer Prasad was transferred to Bikaner vide Order Ex. 2 dated 31.12.1988 and in his place, Shri Satish Kumat Dosani was transferred to Bajju but that order Ex. 2 was also got cancelled vide Order Ex. 3 dated 2.5.1989. The petitioner has also filed an additional affidavit to the effect that he joined his duties at Bajju on 26.9.1989 and he is still reporting his duties at Bajju and has not joined back to Phalodi.
3. The contention of the respondents is that although the petitioner was transferred to Bajju vide Order Ex. 1. at his own request and he has joined there on 26.9.1989 but this transfer order has been cancelled vide order Ex. 4 and, therefore, no sanction of the State Govt, is necessary. According to the respondents, in cancellation’ of the transfer orders, the sanction of the State Govt, is not at all necessary. It was further submitted that the petitioner has already been relieved from Bajju to join his duties back at Phalodi on 4.10.1989. However, as stated above, the petitioner has filed an additional affidavit to the effect that he is still continuing at Bajju and has not joined at Phalodi. The respondents have submitted that after the issuance of order Ex. 1 dated 13.9.1989. Shri Mahaveer Prasad filed a suit in the Court of the learned Munsif & Judicial Magistrate, Bikaner and in that suit, a stay order was passed to the effect that Shri Mahaveer Prasad be not relieved In that suit, an injunction order came to be passed on the basis of the under taking given by the respondents to maintain the status quo as it existed on 18.9.1989 However in pursuance of this, stay order, on order were given to the petitioner not to join his duties and he actually joined his duties at Bajju. It is not known whether the petitioner was a party to that suit or not but this much is clear that he has joined his duties in pursuance of the order Ex. 1 dated 13.9.1989 at Bajju on 26.9.1989 and thereafter, when the order Ex. 1 was cancelled vide Order Ex. 4 dated 29.9.1989, Mahaveer Prasad Bhati withdraw his suit and, therefore, his suit was dismissed as withdrawn.
4. I have considered the rival submissions made at the bar and have also carefully gone through the record of the case.
5. It was contended by Mr.M.L. Kala, the learned Counsel appearing for the petitioner that when executive instructions laying down cartain guidelines have been issued by the Govt., it is not open to the State not to follow those guidelines or instructions and any act in disregard of such instructions can be challenged and would be open to scrutiny by courts. It was further submitted that although it is true that in certain maters, the guidelines cannot or need not be strictly followed for certain reasons but if there is no such reason then any act in disregard to those instructions can be challenged and would be open to scrutiy by courts. In this respect, reliance has been placed on a decision of this Court in Asu Singh v. State of Rajasthan 1983 (3) SLR 783. In that case, it was also observed that premature transfer to accommodate another person should usually be taken is illegal and if the mala fides are alleged, then the burden to prove mala fide lies on the person who alleges the same.
6. It was contended by Mr.M.L.Kala, the learned Counsel appearing for the petitioner that in order to accommodate Shri Mahaveer Prasad Bhati, his transfer order Ex. 1 was cancelled vide order Ex. 4 and, therefore, it should be construed to be the mala fide on the part of the respondents. In this respect, reliance has been placed on a decision of the Kerala High Court in P. Deodorant v. State of Kerala 1982 (1) SLR 562. I have gone through this ruling. It does not lay down the law in the precise terms in which it has been contended by Mr. M.L.Kala, the learned Counsel appearing for the petitioner. However, it lays down that mala fide does not necessarily mean dishonesty or bad faith. In the legal sense, it means a fraud on power. In this ruling, so many situations have been described which may amount to fraud on power.
7. Be that as it may, it was submitted by Mr. M.L.Kala, the learned Counsel appearing for the petitioner that his transfer has been ordered to accomodate a particular official and thus the order passed is for a collectoral purpose in the garb of a legal purpose and amounts to colourable exercise of power and the person prejudicially affected can file a writ even if he has no propriety or fiduciary interest and such transfer orders can be quashed. In this respect, reliance has been placed on a decision of the Patna High Court in Raman Choudhary v. State of Bihar 1975 (2) SLR 67.
8. From the facts of this case, it is clear that the petitioner was transferred to Bajju at his own request vide Order Ex. I dated 13.9.1989 but thereafter, to accommodate Shri Mahaveer Prasad Bhati the Order Ex. I has been cancelled vide order Ex. 4 dated 29.9.1989.
9. The contention of Mr.Singhvi, the learned Addl. Govt. Advocate is that it is a case of cancellation of transfer order and, therefore, the Order Ex. 5 dated 23(9.1989 been not be complied. According to the Order Ex. 5 dated 23.9.1989 the following guidelines have been prescribed by the State Govt:
The transfer/posting of Rangers Grade-I (Gazetted) who have been at one place of posting for Over two years will be done by the P.C.C.F. in case of less than two years period, the P. C. C. F. will seek prior approval of the State Goverment.
In this case, it is crystal clear that the petitioner has joined his duties at Bajju in pursuance of Order Ex. I dated 13.9.1989 and, therefore, the order Ex. I has been executed. He is still working there though vide Order Ex. 4 dated 29.9.1989 the Order Ex. I dated 13.9.1989 has been cancelled and thereafter, it was ordered by this Court vide its order dated 23.10.89 that the petitioner shall not be relieved in compliance to the Order Annexure-4 if he has not already been relieved, Under these circumstances, when a transfer order has been executed then it cannot be cancelled and a fresh transfer order has to be issued. Had the petitioner been allowed to continue at Phalodi and had he not been relieved from there then of course, the cancellation order could have been passed but once the petitioner has been relieved from Phalodi and has joined at Bajju then is entails certain fiscal Consequences and, therefore, when that order has been excited, that order should not be cancelled by the respondents and a fresh order should be issued in pursuance of the guidelines/instructions issued by the Government vide Order Ex. 5 dated 23.9.1989. In this case, admittedly no permission of the State Govt, has been obtained to cancel the transfer order Ex. I dated 13.9.1989 Thus, the order Ex.4 dated 29.9.1989 is against the guidelines/instructions given by the Government vide Order Ex. 5 dated 23.9.1989 and therefore, the order Ex.4 dated 29.9.1989 cannot be sustained.
10. The petitioner is still continuing at Bajju and no transfer can be made during election period and, therefore, even if the respondents wanted to transfer the petitioner, they will have to Wait till the election process is ever and thereafter, they may issue a fresh order in accordance with the guidelines/instructions given by the Govt, vide order Ex. 5 dated 23.9.1989.
11. With these observations, this writ petition allowed and the order Ex. 4 dated 23.9.1989 is quashed. The parties are left to bear their own costs of this writ petition.