[Cites 5, Cited by 0]
Rajasthan High Court - Jodhpur
Neeru Bishnoi vs The State Of Rajasthan on 18 December, 2025
[2025:RJ-JD:54065]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 23197/2025
Neeru Bishnoi W/o Surender Kumar, aged about 45 Years, R/o
Ward No.05, Bishnoi Mandir Ke Pass, 15 LGW-A, Hanumangarh,
Rajasthan. (Presently Posted at Mahatma Gandhi Government
School No. 2, Purani Abadi, District Sriganganagar).
----Petitioner
Versus
1. The State of Rajasthan, through its Principal Secretary,
Department of School Education, Government of
Rajasthan, Government Secretariat, Jaipur, Rajasthan.
2. Joint Secretary, Education Department (Group-2),
Government Of Rajasthan, Government Secretariat,
Jaipur, Rajasthan.
3. Director, Secondary Education, Government Of Rajasthan,
Bikaner, Rajasthan.
4. Vineeta Sharma, Working at Mahatma Gandhi
Government School No. 2, Purani Abadi, District
Sriganganagar.
----Respondents
For Petitioner(s) : Dr. RDSS Kharlia, Adv. assisted by
Ms. Kirti Bodha, Adv.
For Respondent(s) : Mr. Sajjan Singh Rathore, AAG
Mr. Manoj Bhandari, Sr. Adv. assisted
by Mr. Sushil Bishnoi, Adv. and
Mr. Aniket Tater, Adv.
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
Order Reserved on : 09/12/2025
Order Pronounced on : 18/12/2025
1) The challenge in the present writ petition is to the transfer
order dated 23.11.2025, whereby the petitioner was transferred
from Mahatma Gandhi Government School No.2, Purani Aabadi,
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Ganganagar, to Government Senior Secondary School, 58-F,
Ganganagar.
2) The case of the petitioner is that he is holding the post of
Principal. Initially, by order dated 12.04.2025, the petitioner was
promoted to the post of Principal and transferred to Government
Senior Secondary School, Duda Khichar, 15 SDS, Block
Sadulshahar, District Sri Ganganagar. On 05.05.2025, the
petitioner joined in the said post. Thereafter, by order dated
22.09.2025, the petitioner was transferred from Government
Senior Secondary School, Duda Khichar to Mahatma Gandhi
Government School No. 2, Purani Aabadi, District Sri Ganganagar
in the place of private respondent. By the same order, the private
respondent was also transferred from Mahatma Gandhi
Government School, Purani Aabadi to Government Senior
Secondary School, 15 BLD A, Ganganagar. In pursuance of the
said transfer order, the petitioner joined at Mahatma Gandhi
Government School No. 2 on 23.09.2025. Subsequently, by the
impugned transfer order dated 23.11.2025, the petitioner was
again transferred from Mahatma Gandhi Government School No.
2, Purani Aabadi to Government Senior Secondary School, 58-F,
Ganganagar. By the earlier order dated 22.09.2025, the private
respondent who had been transferred from Government Senior
Secondary School, 15 BLD A, Ganganagar, did not join at the
transferred place. By the impugned order, the petitioner has been
transferred and, in his place, the private respondent has been
accommodated, who was earlier relieved by virtue of transfer
order dated 22.09.2025. The impugned order has been passed for
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extraneous reasons to accommodate the private respondent by
treating her earlier transfer order as reviewed, which in effect
amounts to its cancellation. It is the petitioner's case that the
impugned transfer has been issued solely to accommodate the
private respondent and not on account of any administrative
exigency. It is further contended that the present transfer is an
arbitrary exercise of the power of transfer and constitutes a case
of frequent transfers.
3) The case of the State is that the respondents have
reconsidered the transfer of the private respondent in order to
accommodate her. Considering her hardship, the impugned orders
were passed, and they are not the result of any mala fide
intention or arbitrary exercise of power. The impugned order has
been passed by the competent authority, and the petitioner has
failed to demonstrate that the transfer is vitiated by any mala fide
exercise of power or it is violative of any specific statutory rule.
Transfer is an incident of service and does not ordinarily fall within
the purview of judicial review except on limited grounds. Such
limited grounds have not been established in the present case.
4) It is also the case of the respondents that by virtue of the
impugned transfer, the petitioner has already been relieved from
her existing post and cannot be permitted to be reverted to the
original post; moreover, this is not a case of frequent transfer.
5) The learned Additional Advocate General appearing for the
official respondents has contended that the impugned transfer
order has been issued on grounds of administrative exigency.
However, the authority has failed to specify the nature of such
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exigency that necessitated an abrupt change in its stand by
transferring the petitioner within a short span of nearly two
months.
6) The learned counsel appearing for the private respondent
has submitted that the petitioner was initially transferred to Purani
Aabadi at her own request, and the impugned transfer was
effected upon consideration of the request made by the private
respondent. Therefore, the order does not amount to a case of
frequent transfer and does not suffer from any mala fides. It is
further submitted that the scope of judicial review in matters of
transfer is very limited, and no such grounds are available in the
present facts of the case. In support of his case, he has relied
upon the decision of the Apex Court in the case of Sri Pubi Lombi
Vs. The State of Arunachal Pradesh & Ors, [Civil Appeal
No.4129 of 2024], decided on 13.03.2024.
7) The learned counsel appearing for the petitioner
submitted that the impugned transfer order was not passed on
grounds of administrative exigency or any valid reason; rather, it
has been issued based on extraneous considerations, solely to
accommodate the private respondent, who had earlier been
transferred from the same post to another. It is further contended
that the petitioner's case amounts to frequent transfer, which
cannot be justified in the absence of reasonable grounds. The
petitioner also submits that her husband is a government
employee, her posting at Purani Abadi is highly convenient, and
she has certain family obligations, including attending to her ailing
father-in-law, who is undergoing treatment for cancer. The official
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respondents cannot exercise their power of transfer without taking
into account the legitimate needs of the petitioner.
8) I have considered the arguments advanced by both the
parties and carefully perused the material available on record.
9) Undisputed facts in the present case are that initially, by
order dated 12.04.2025, the petitioner was issued a posting order
consequent upon her promotion at Government Senior Secondary
School, Duda Khichar, District Sri Ganganagar, and she joined the
said post on 05.05.2025. It is also not in dispute that by order
dated 22.09.2025, both the petitioner and the private respondent
were transferred. The petitioner was transferred to Mahatma
Gandhi Government School, Purani Aabadi, District Sri
Ganganagar, which post fell vacant on account of the transfer of
the private respondent by the same order. The private respondent
was relieved, and the petitioner joined the said post on
23.09.2025. It is an undisputed fact that although the private
respondent was relieved, she did not join at the transferred place
i.e. Government Senior Secondary School, 15 BLD-A, Ganganagar,
which is a vacant post. By the impugned order, the petitioner was
transferred from Purani Aabadi to 58-F, Ganganagar, and by the
same impugned order, the private respondent was again re-posted
to Purani Aabadi, the place where the petitioner was posted in
pursuance of the transfer order dated 22.09.2025.
10) The facts reveal that by promotion, the petitioner was
posted to Duda Khichar by order dated 12.04.2025, and again, by
order dated 22.09.2025, the petitioner was transferred to Purani
Aabadi, District Sri Ganganagar. Such a transfer was a special
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transfer aimed at streamlining the working pattern of various
principals. Again, within a short span of two months, by the
impugned order dated 23.11.2025, the petitioner was transferred
to Government Senior Secondary School, 58-F, Sri Ganganagar.
The impugned transfer of the petitioner must be considered in the
context of the previous two transfers of the private respondent,
i.e., the transfer orders dated 22.09.2025 and 23.11.2025. By the
order dated 22.09.2025, the petitioner was posted to a position
previously held by the private respondent, and such a transfer
occurred due to a vacancy created by the transfer of the private
respondent to Government Senior Secondary School, 15 BLD A,
Sri Ganganagar, which was a vacant post. The impugned order
dated 23.11.2025 is limited to select individuals and do not
constitute a general or mass transfer. The impugned order, by
which the private respondent was retained in the post from which
she was initially transferred by the order dated 22.09.2025,
occurred despite her failure to join her previous post at BLD A, Sri
Ganganagar, which remained vacant. Keeping the entire school
without a Principal cannot be justified on administrative grounds
and appears to serve only to accommodate the private respondent
in the post from which she was initially transferred. It is a boon for
the employee who did not comply with the transfer order, whereas
the employee, who obeyed the transfer order and joined the post,
was given bad treatment by transferring such a person to a
distant place. Considering the two orders together, it is evident
that the impugned order was passed solely to accommodate the
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private respondent and not for any genuine administrative reason
or exigency.
11) In the context of the present factual background, there
must have a distinction between 'malice in law' and 'malice in
fact'. In malice in law wrongful act done intentionally without just
causes or excuses or unlike such a wrongful act was result of bad
motive or ill-will, which is of malicing fact. An act is suffered from
malice in law, the impleadment authority in person, who exercises
such an authority is not required unlike in malice in fact.
12) It is also relevant to refer to the decision of Apex Court in
the case of B. Varadha Rao Vs. State of Karnataka & Ors.,
reported in AIR 1986 SC 1955. The question before the Apex
Court was the scope of judicial review in transfer orders. In this
regard, paras 5 & 6 are relevant, which read as follows:
"5. It is no doubt true that if the power of transfer
is abused, the exercise of the power is vitiated.
But it is one thing to say that an order of transfer
which is not made in public interest but for
collateral purposes and with oblique motives is
vitiated by abuse of powers, and an altogether
different thing to say that such an order per se
made in the exigencies of service varies any
condition of service, express or implied to the
disadvantage of the concerned Government
servant. The petitioner who appeared in person
placed reliance, as he did in the High Court, on
the decision of the Bombay High Court in Seshrao
Nagorao Umap v. State of Maharashtra and Ors.
(1985)2 LLJ 73. We do not see how the decision
can be of any avail to the question at issue. The
learned Judges were dealing with a petition under
Article 226 of the Constitution by which a Medical
Officer challenged his order of transfer on the
ground that it was not only mala fide but was
issued in colourable exercise of power and
therefore wholly illegal and void. It was
contended by the petitioner that he was being
transferred contrary to the Government policy
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with a view to accommodate one Dr. Section 4P.
Patil because of the political influence he wielded.
In allowing the writ petition, the learned Judges
observed that it was no doubt true that the
Government has power to transfer its employees
employed in a transferable post but this power
has to be exercised bona , fide to meet the
exigencies of the administration. If the power is
exercised mala fide, then obviously the order of
transfer is liable to be struck down. They relied on
the observations made by this Court in E.P.
Royappa v. State of Tamil Nadu and Anr. for the
positivistic view that 'equality is antithetic to
arbitrariness' and held that the observations
equally apply to the policy regarding the transfer
of public servants. It was observed :
"It is an accepted principle that in public
service transfer is an incident of service. It is
also an implied condition of service and
appointing authority has a wide discretion in
the matter. The Government is the best judge
to decide how to distribute and utilise the
services of its employees. However, this
power must be exercised honestly, bona fide
and reasonably. It should be exercised in
public interest. If the exercise of power is
based on extraneous considerations or for
achieving an alien purpose or an oblique
motive it would amount to mala fide and
colourable exercise of power. Frequent
transfers, without sufficient reasons to justify
such ; transfers, cannot, but be held as mala
fide. A transfer is mala fide when it is made
not for professed purpose, such as in normal
course or in public or administrative interest
or in the exigencies of service but for other
purpose, than is to accommodate another
person for undisclosed reasons. It is the basic
principle of rule of law and good
administration, that even administrative
actions should be just and fair.
The observation that transfer is also
an implied condition of service is just an
observation in passing. It certainly cannot be
relied upon in . support of the contention that
an order of transfer ipso facto varies to the
disadvantage of a Government service, any of
his conditions of service making the
impugned order appealable under Rule 19(1)
(a) of the Rules."
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6. One cannot but deprecate that frequent,
unscheduled and unreasonable transfers can
uproot a family, cause irreparable harm to a
Govern- ment 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
conductive to good administration. 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 wish to add that the position of Class
III and Class IV employees stand on a different
footing. We trust that the Government will keep
these considerations in view while making an
order of transfer."
13) The principles enunciated in the above judgment are that
every transfer in public service is an incident of service, and there
is an implied condition in the service that the appointing authority
has wide discretion in matters of transfer. The government is the
best judge to decide how to distribute and utilize the services of
its employees. However, such power must be exercised honestly,
bona fide, and reasonably, and it must be in the public interest. If
the exercise of this power is based on extraneous considerations
or is intended to achieve any improper or oblique purpose, it
would constitute a mala fide and colorable exercise of power. It
was also held that frequent transfers without sufficient reason
must be regarded as a mala fide exercise of power. A transfer is
mala fide when it is not made for its professed purpose, such as in
the normal course of service, in the public or administrative
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interest, or due to exigencies of service, but instead to
accommodate another person for undisclosed reasons.
14) The facts of the present case are similar to those in the
aforementioned judgment. The impugned transfer was carried out
with the intention of accommodating another person, without any
valid reason. Such an exercise of power cannot be said to have
been undertaken for any administrative purpose; rather, it
constitutes malice in law, as clearly demonstrated by the two
impugned transfer orders. Furthermore, the re-transfer of the
private respondent from a school where no one was posted in
place of the private respondent, resulted such post vacant. Such
action cannot, in any stretch of imagination, be justified as a
matter of administrative exigency or necessity.
15) The learned counsel appearing for the respondent has
relied upon the case of Sri Public Lombi (cited supra) to contend
that the scope of judicial review is very limited and can be
exercised only where there is mala fides or the transfer violates
any statutory rule. However, the judgment relied upon by the
respondent did not consider the case of B. Varadha Rao (cited
above), which provides a more elaborate discussion on the scope
of judicial review. The petitioner's case is squarely falling under
the principles laid down by the Apex Court in the case of B.
Vardha Rao (cited supra). Therefore, the impugned transfer
order of the petitioner is required to be interfered with.
16) In the result, the writ petition is allowed. The impugned
transfer order dated 23.011.2025 is set aside. The official
respondents are directed to issue a consequential order handing
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over the charge of Principal of Mahatma Gandhi Government
School No. 2, Purani Abadi, Ganganagar, to the petitioner by
relieving the private respondent from the said post and the official
respondents shall also take appropriate action to post the private
respondent at any other suitable location as a consequence of the
present order. The said exercise shall be done within 15 days from
the date of receipt of copy of this order.
17) In the circumstances, no order as to costs.
18) Pending interlocutory applications, if any, shall stand
disposed of.
(MUNNURI LAXMAN),J
NK/-
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