K. Narayana Kurup, J. 1. The petitioner was appointed and posted originally on December 28, 1992 as Senior Observer in the Indian Meteorological Department at Adirampattinam, Tamil Nadu. He is a native of Calicut. Since his father is a heart patient and since there is nobody to look after him, the petitioner made a request to the 2nd respondent for transfer to Calicut on July 29, 1993. His first request was followed by further requests dated March 29, 1995 and April 4, 1995. However, the 2nd respondent as per order dated August 22, 1995 instead of transferring the petitioner to Calicut transferred him from Adirampattinam, Tamil Nadu to Trivandrum. The petitioner joined duty at Trivandrum consequent on the transfer. Even after joining at Trivandrum, the petitioner made several requests to the 2nd respondent of the petitioner for a transfer to Calicut. Since the request of the petitioner for a transfer to Calicut was not considered by the 2nd respondent inspite of existence of two vacancies at Calicut, he filed O. A. No. 98 of 1998 before the Central Administrative Tribunal, Ernakulam Bench for a direction to the 2nd respondent to consider the request for transfer. The said O.A. was disposed of by order dated January 20, 1998 with a direction to the 2nd respondent to consider the request of the petitioner for a posting at Calicut considering his representation dated September 2, 1997 and other facts given in the application and dispose it of with an appropriate order within a period of two months from the date of receipt of a copy of the order in the O.A. Though the copy of the order in O.A. 98 of 1998 was sent to the 2nd respondent on February 10, 1998, no orders were passed on the representation of the petitioner. On the other hand, on March 30, 1998 the 2nd respondent issued an office memorandum informing the petitioner that his request for transfer will be considered on a suitable occasion. Since two posts of Senior Observer at Calicut were kept vacant by the 2nd respondent, the petitioner again approached the Centra] Administrative Tribunal, Ernakulam Bench in O.A. No. 639 of 1998 vide Ext. P-1. When Ext. P-1 O.A. came up for admission the learned Tribunal as per Ext. P-2 order dismissed the same in limine stating that the applicant has no legal right to insist for a transfer to a particular place though post(s) may be lying vacant. Soon after the dismissal of Ext. P-1 O.A. as per Ext. P-2 order, respondents 4 and 5 were posted in the post lying vacant at Calicut from August 1997 onwards. The posting given to the 4th respondents as per order dated April 29, 1998 from Meteorological Office, Agatti to Meteorological Office, Calicut is evidenced by Ext. P-3. Being aggrieved by Exts. P-2 order of the Tribunal, P-3 office order of the 2nd respondent and the order giving a posting to the 5th respondent at Calicut (copy not produced), the petitioner has moved the present writ petition under Article 226 of the Constitution of India for the issuance of a writ of Certiorari to quash those orders, for a writ of mandamus directing the 2nd respondent to review all transfers and postings of Senior Observers made at Calicut after Ext. P-2 order of the Tribunal and to consider the case of the petitioner also for transfer to Calicut and to declare that the petitioner is entitled for a transfer to Calicut in view of the principles and guidelines in Ext. P-4.
2. Heard counsel on both sides.
3. Normally this Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India will be loathe to interfere with an order of transfer unless it is shown that the order is made in violation of norms or guidelines governing transfer or the Court is satisfied that the order of transfer is made on considerations other than exigencies of service or that the order has been vitiated by mala fides.
4. Having heard learned counsel on both sides, we are satisfied that this is a fit case in which interference is called for by this Court with the impugned order of transfer and Ext. P-2 order of the C.A.T. dismissing Ext. P1 O.A. filed by the petitioner as we are satisfied that the continued retention of the petitioner at Trivandrum inspite of the fact that two posts of Senior Observers were lying vacant at Calicut from August 1997 onwards and inspite of the fact that the petitioner is the senior most applicant for transfer to Calicut and his request for transfer is pending before the 2nd respondent from July 29, 1995 onwards and for the further weighty reason that the 5th respondent has been functioning at Calicut for the last 10 years without being disturbed by anybody, cannot be justified. Though the transfer is an incidence of service and an administrative function, this Court can in appropriate cases interfere in the interest of justice. The petitioner has made out a case for interference with Exts. P-2 and P-3 as also with the originals of the order promoting and posting the 5th respondent at Calicut where she has been working for the last 10 years. In this connection it has to be noted that the 2nd respondent cannot plead that there are no vacancies at Calicut. In fact two posts of Senior Observers were lying vacant at Calicut from August, 1997 onwards, one at Karipur Airport and the other at Calicut Beach Observatory. It has come out on record that all the posts at Karipur Airport, Calicut and Beach Observatory, Calicut were operational and essential service, the work on these posts cannot be postponed under any circumstance. That apart the petitioner has expressed his willingness to work on tour at Calicut without T.A. and D.A. which request was not allowed by the 2nd respondent. On account of the fact that two posts of Senior Observers were lying vacant at Calicut, the existing staff had to work over time and over time allowances had to be given to them. By keeping two vacancies unfilled for many months the State had incurred additional expenditure of Rs. 60,000/- by way of over time allowances. Inspite of this, we are surprised to find that the posts in question at Calicut were kept vacant by the 2nd respondent for reasons best known to him,
5. It is submitted at the Bar by the learned Counsel for the Central Government that since the 5th respondent had declined promotion, she had to be promoted and posted at Kozhikode where she has been working for the last 10 years. We are afraid we cannot accept this plea set up by the Government. There is nothing wrong on the part of the 5th respondent in declining promotion, but that cannot be used as a ruse to remain in the same station indefinitely for many years especially when others are in the queue for a posting at the same station. It can be seen from Ext. P-4 guidelines that when ordering a transfer to a particular station cases of those who have volunteered for transfer to that - station should be duly considered. It is also stated in Ext. P-4 that other considerations being equal, a volunteer should be preferred to a non-volunteer for transfer. In this case, the petitioner has volunteered for transfer to Calicut as early as on July 29, 1993. Repeated requests were also made for transfer. The petitioner is the senior most person who volunteered for transfer to Calicut. The 2nd respondent has not considered the case of the petitioner in the right perspective. Accordingly we are satisfied that the petitioner was denied a fair deal by the 2nd respondent especially when two posts were lying vacant at Calicut and the 5th respondent was serving there for the last 10 years, vis-a-vis, the 4th respondent, it has to be noted that requests of the petitioner for transfer to Calicut was pending before the 2nd respondent even before the 4th respondent entered service. Ext. P-6 will show that the officer in-charge of the Calicut Airport had informed respondents 2 and 3 to post a Senior Observer at Calicut at the earliest or to send someone on tour to that station, Inspite of Ext. P-6, the petitioner was not given a posting at Calicut for the reason best known to respondents 2 and 3. Ext. P-7 representation submitted by the petitioner will show that he was ready and willing to proceed on tour while at Calicut without T.A. and D.A. Strangely enough that request was also not acceptable to respondents 2 and 3. To cap it all, the petitioner's father is a heart patient as evidenced by Ext. P-8 which necessitates the 'petitioner's presence at Calicut. The petitioner's father had also undergone a surgery for abdominal wall tumor which was malignant for which he had undergone radiotheraphy as evidenced by Ext. P-9. To sum up, it has to be noted that the petitioner was a volunteer for a transfer to Calicut. As per Ext. P-4 guidelines a volunteer should be preferred to a non-volunteer should be for transfer. The 5th respondent was working in Calicut itself for the last 10 years. That being so, the 2nd respondent ought to have transferred the petitioner to Calicut, since his request for transfer was pending before the 2nd respondent from July 29, 1993 onwards. Transferring the 4th respondent to Calicut and promoting and posting the 5th respondent at Calicut where she has been working for the last 10 years without considering the request of the petitioner for transfer to Calicut is violative of Ext. P-4 guidelines. The 2nd respondent is bound by the principles laid down in Ext. P-4. Hence we find no valid reason for denying transfer to the petitioner to Calicut.
6. We are, therefore, satisfied that discrimination and arbitrariness is writ large in the entire proceedings. In this connection, it has to be noted that the 4th respondent joined service only in 1996. He was not in service when the petitioner volunteered for a posting at Calieut. The 5th respondent is working at Calicut for the last 10 years. She had also declined promotion on earlier occasions. In view of the principles laid down in Ext. P-4, the petitioner has a preferential claim" for a posting at Calicut. In the above view, the Tribunal misdirected itself in dismissing the O.A. thereby giving unfettered power to the administration to effect transfers and postings in an arbitrary manner.
7. Article 16 of the Constitution of India gives effect to the doctrine of equality in all matters relating to public employment. Therefore, questions of transfer are also governed by Article 16 of the Constitution. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice. In fact the latter comprehends the former (Sec E. P. Royappa v. State of Tamil Nadu (1974-I-LLJ-172(SC)). In our opinion, on the facts disclosed, the petitioner has succeeded in discharging the burden of proof cast on him as to arbitrariness and mala fides of the transfer. Accordingly, we set aside Ext. P-2 and quash Ext. P-3 and the original of the order posting the 5th respondent at Calicut, the latter two being violative of Articles 14 and 16 of the Constitution and further declare that the petitioner is entitled to a transfer from Trivandrum to Calicut as prayed for. Consequently there will be a direction to respondents 1 and 2 to give a posting to the petitioner at Calicut within two weeks from today by the latest.