JUDGMENT Chandrasekhara Menon, J. 1. The petitioner is a Doctor working in the Kerala Health Services. While he was working in the Government Rural Dispensary, Porathur, he had requested for transfer from that station. The Government Hospital at Tirur was the first preference or choice given by him when he made a request for transfer. No doubt, he did not get the transfer as requested for but on 5th May 1979, he was posted to the Government Hospital, Tirurangadi. Ext. P-2 is the order of transfer. On 6th November 1979, he was again transferred to Ponnani. Ext. P-3 is that order. Afterwards on 6th September 1980, the petitioner was given a posting at Tirur. Ext. P-4 is the copy of that order. 2. The third respondent is another Doctor working in the Government Hospital, Tirur. He had been at Tirur for some considerable length of time, for more than three years. He was then transferred and posted to the General Hospital at Calicut. He joined duty at Calicut, but then it appears immediately he entered on leave. The petitioner would contend that the third respondent was then trying to get himself transferred back to Tirur. On 23rd May, this year, there was publication in the newspapers regarding the general transfers and postings of a large number of Doctors working under the Kerala Health Services. In the general transfer, the petitioner was transferred to Tirurangadi and the third respondent was brought back to Tirur. This order of transfer is questioned by the petitioner in this O. P. The O. P. was filed immediately after the publication of the general orders of transfer in the newspapers. The complaint of the petitioner in the O.P. is that in effecting the transfers, that is, in sending the petitioner to Tirurangadi and taking back the third respondent to Tirur, where he had already been working for a considerable length of time-for more than three years, the second respondent has gone against the guidelines which the Government themselves have fixed in the matter of transfer. It is contended that the action is against the terms and spirit of the norms laid down as evidenced by Ext. P-1, which is a copy of the G. O. dated 18th May, 1977 as amended by another Government Proceedings of 4th March, 1979. It is contended that the action is against the terms and spirit of the norms laid down as evidenced by Ext. P-1, which is a copy of the G. O. dated 18th May, 1977 as amended by another Government Proceedings of 4th March, 1979. The petitioner's short case is that having laid down the general principles of transfers in a formal Government Order, the State of Kerala and the Director of Health Services cannot violate the same unless for specified reasons, and to order transfers according to their whims and fancies. The petitioner would contend that it is a case of victimisation. According to him, he had served in Tirur only for nine months. Therefore, transfer of the third respondent to Tirur where he had already-worked for more than three years and who had entered on leave, when he was transferred from Tirur is really arbitrary and violative of Art.14 and 16 of the Constitution. No doubt, for administrative exigencies, he may be transferred. But here the impugned orders have been passed on extraneous ground. They have not been passed in public interest considerations which are relevant have not been kept in view while irrelevant considerations have obviously weighed with respondents 1 and 2 in passing the impugned orders. 3. What the petitioner prays for in this O. P. is that the general transfer order in so far as it relates to the transfer of the petitioner from the Government Hospital, Tirur to the Government Hospital, Tirurangadi and the posting of the third respondent to the Government Hospital, Tirur in the place of the petitioner should be quashed and writ of mandamus restraining respondents 1 and 2 from transferring the petitioner from Government Hospital, Tirur before he completes three years in that station should be issued. 4. Before going into the counter affidavit filed by the respondents, I might here point out that along with the O. P., the petitioner has sought for an interim direction to permit him to continue to work in the Government Hospital, Tirur and to stay the operation of the order of transfer and posting the third respondent back to the Government Hospital, Tirur. Notice was ordered to the respondents in the application for the stay. Notice was ordered to the respondents in the application for the stay. But, subsequently it appears the petitioner received a further order on 4th June, 1931 by which he stood transferred from the Government Hospital, Tirurangadi to District T. B. Centre, Manjeri. When he went to Tirurangadi Hospital to attend duty, it is said that in his absence Dr. N. Yunus had come and taken charge there. This resulted the petitioner filing an application for interim direction to permit him to work either in the Government Hospital, Tirur or in the Government Hospital, Tirurangadi. This petition was filed on 10th June. The court ordered notice returnable in ten days. The petitioner also filed an application for amendment of the O. P. impleading Dr. Yunus as the 4th respondent. It is pointed out therein that Doctors who were able to bring pressure to bear on the Government are accommodated in places of their choice while persons like the petitioner are being victimised in gross violation of the norms laid down by the Government itself. It is submitted that Exts. P-6 and P-7 orders are vitiated by mala fides and sought also to quash those orders. Subsequently, the petitioner filed another petition stating that sanction has been obtained for the creation of additional post of an Assistant Medical Officer on Rs. 700-1270. It is pointed out therein that there is no legal bar in the third respondent being retained against the said post if the Government is so desirous of to do it on compassionate ground. 5. In the counter affidavit filed by the third respondent it is pointed out that the post and the capacity in which he was working at Tirur and is now working are different and therefore, one cannot be equated with the other. It is therefore erroneous and misleading to contend that he had originally worked for four years at Tirur and he managed to get a transfer to Tirur. He would point out that after joining Calicut he took leave for personal and health reasons. Afterwards he joined duty producing a fitness certificate from a competent doctor. He would contend that it is neither mandatory nor is it practicable that a Doctor posted in one station can be transferred or should be transferred only after a period of three years. Afterwards he joined duty producing a fitness certificate from a competent doctor. He would contend that it is neither mandatory nor is it practicable that a Doctor posted in one station can be transferred or should be transferred only after a period of three years. Transfer is a matter within the competence of the Health Department and the Government of Kerala, and for administrative convenience and exigencies of administration transfers are effected by the Government. These transfers are always effected in the interests of the public. It is submitted that these matters are well within the province of the State and should not be interfered with by the court. General principles of transfer are only of a directory nature and in the absence of any averment of mala fides on the part of the Government, the challenge against transfer cannot stand. 6. Dr. Yunus, who had been transferred in the petitioner's place in the Tirur Hospital has filed an affidavit stating that he had been transferred to Manjeri before completion of three years of continuous service in that station. In Manjeri there is no vacancy of a T. B. Specialist. In Tirurangadi, there are altogether 32 beds for T. B. patients. He had been transferred in violation of the norms prescribed by the Government in the general transfer. He applied for leave before relieving from Tirurangadi. In the meantime, he made a representation pointing out that he has not completed three years of service and when the mistake was noticed, it was rectified by cancelling his order of transfer. 7. On behalf of the State, the Section Officer, Health Department, has filed an affidavit. For consideration of the question that arises here, I think I need only refer to Para.4 of the counter affidavit which explains the reasons for posting the third respondent to Tirur which has resulted in the petitioner's transfer. What is stated therein is: - "It is a fact that the third respondent posted as substitute to the petitioner was working at Government Hospital, Tirur previously. On transfer to General Hospital, Calicut he joined duty there on 27th May, 1980 and proceeded on leant on medical grounds from 12th June, 1980. It was considering this fact on sympathetic ground that he was reposted to Government Hospital, Tirur by transferring the petitioner." (Italics supplied) 8. On transfer to General Hospital, Calicut he joined duty there on 27th May, 1980 and proceeded on leant on medical grounds from 12th June, 1980. It was considering this fact on sympathetic ground that he was reposted to Government Hospital, Tirur by transferring the petitioner." (Italics supplied) 8. The question that really arises for consideration in this case is when the Government itself has laid down the guidelines in the matter of transfer can a transfer be effected admittedly in violation of the guidelines laid down therein on sympathetic grounds in respect of a Doctor when such deviation of the guidelines might result in considerable inconvenience and hardship to another person? In regard to question of transfers there are now a large number of decisions. I would first in this connection refer to a decision reported in Appukuttan Nair v. State of Kerala (1965 KLT 855). There in considering the question whether the Government have a right to transfer a member of one service to another service, referring to R.32 of the Kerala State and Subordinate Services Rules, 1958, which runs as follows: - "Postings and transfers: - (a) A member of a service or class of a service may be required to serve in any post borne on the cadre of such service or class (b) All transfers and postings shall be made by the appointing authority." Govindan Nair J., as he then was, pointed out that the rule enables a transfer from one post to another or from one class to another within a service. Subject to the restrictions introduced by the Constitution and the guarantees given to the employees under it, service in the State or the holding of a post is during the pleasure of the Governor. The recognition of a right in the Government to transfer a Government servant from one service to another will not affect the guarantees under Art.16 and 311 of the Constitution. The learned Judge also said that the rules framed under Art.309 will not prevent the exercise of the right to transfer. It is pointed out that the Government have the inherent right to transfer employees from one service to another or from one District to another. 9. The learned Judge also said that the rules framed under Art.309 will not prevent the exercise of the right to transfer. It is pointed out that the Government have the inherent right to transfer employees from one service to another or from one District to another. 9. The question of right to transfer the employees from one service to another was considered in Abdul Khader v. Regional Deputy Director ( 1967 KLT 354 ) Mathew, J. referred to the following passage in the judgment of Lord Denning, M. R. in Merricks and another v. Nott-Bower and others (1964 (2) WLR 702). "In the light of these regulations, the plaintiffs say that the power of transfer is only to be used as part of the administrative machinery of the force so as to ensure efficiency. It cannot be used as a means of punishment. In their cases, they say, the power of transfer was misused and abused. It was used as a disciplinary measure to punish them, and by misusing it in this way those in authority were able to by-pass all the disciplinary machinery so carefully set up to ensure a fair hearing. They were condemned and punished, they say without being heard. Such being the case made, I am not prepared to say that it is unarguable. It is a well known principle of our law that any powers conferred by Statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an ulterior purpose. Whether that principle applies here or not, I do not say: all I do say is that if the plaintiffs allege, as they do, that this was a misuse of the power of transfer, that it was used, not for purpose of good administration and efficiency but for the motive or punishment - they have an arguable case which they are entitled to have tried by the courts." 10. In Dr. (Sm.) Pushpika Chatterjee v. State of West Bengal (1972 SLR 910), the petitioner who was a Government servant had been transferred with the object of accommodating another person at a particular station for undisclosed reasons and it had been observed that the order was not for public interest or for administrative purposes, and, therefore, for collateral purposes and mala fide. (Sm.) Pushpika Chatterjee v. State of West Bengal (1972 SLR 910), the petitioner who was a Government servant had been transferred with the object of accommodating another person at a particular station for undisclosed reasons and it had been observed that the order was not for public interest or for administrative purposes, and, therefore, for collateral purposes and mala fide. It was a fit case where the order of transfer should be interfered with even though no civil or evil consequences would follow from such an order. 11. I had considered the question at rather great length in the case of Dr. Kuriakose. I pointed out therein that the power to transfer should be exercised reasonably and fairly and in the best interests of the administration. Where the power is exercised without due regard to the interest of the administration or the interest of the public or the provisions of law or the requirements of justice, or where the power is exercised for extraneous and irrelevant considerations, or for mala fide reasons, or as a punishment or as an act of victimisation, in all those cases of perverse exercise or abuse of power, the jurisdiction of this Court is wide enough to strike down the offending order. That the power was exercised without personal animosity or malice would in such cases be no answer. Bad faith does not necessarily mean dishonesty. Mala fide in the legal sense is a fraud on power, but not necessarily a dishonest or malicious act. A person acts mala fide if he exercises the power perversely or unauthorisedly or improperly or unreasonably. There I had quoted the following from Lord Denning M. B.'s decision in Breen v. Amalgamated Engineering Union (1971 (2) QB 175 at 190). "The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have been taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside." 12. If its decision is influenced by extraneous considerations which it ought not to have been taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside." 12. Another decision which would be very useful for the purpose of this case is the decision of the Patna High Court in Ramanek v. State of Bihar (1975 (2) SLR 67). There an order of transfer to accommodate a particular official was considered to be an order passed for collateral purpose in the garb of a legal purpose. That will amount to colourable exercise of power. In N. N. Singh and others v. General Manager, Chittaranjan Locomotive Works and others (1978 SLR 1153) in regard to the transfer of a Railway employee, the Calcutta High Court held: - "At the same time it may be obvious or apparent on the facts evident, admitted or established, that the orders of the authorities, though otherwise legal and valid have not been issued for the professed purposes as in this case in public or administrative interest or in exigencies of service but they are only passed for other purposes in the garb of ostensible purposes. The court of law in such cases has thought it fit and competent for itself to probe in and scrutinise such orders to see if they have been passed for other purposes under colourable exercise of powers or if such orders are accordingly mala fide. The administrative orders, not otherwise justiciable, thus come under Court's scrutiny if there are allegations of mala fides or colourable exercise of powers behind such orders, even though they are free from violation, of any constitutional or statutory provisions. Such orders again are liable to be interfered with if the allegations noted above are established or evident on materials on record in the absence of any rebuttable evidence". Again the Punjab High Court said in Lachman Dass v. Shiveshwarkar (AIR 1967 Punjab 76) ".... the question about the transfer of an official is primarily for the authorities concerned. A variety of factors may weigh with the authorities while considering the question of transfer, viz. Again the Punjab High Court said in Lachman Dass v. Shiveshwarkar (AIR 1967 Punjab 76) ".... the question about the transfer of an official is primarily for the authorities concerned. A variety of factors may weigh with the authorities while considering the question of transfer, viz. the suitability of the official for the post, his aptitude, past conduct, reputation, the period for which he had been on that post and a number of other grounds which may be clubbed together under the head 'exigencies of service'. It is not for this Court in a petition under Art.226 to go into the matter and adjudicate about the advisability or propriety of the transfer. The Court can only interfere if the transfer is violative of any legal provision or is otherwise mala fide." 13. It might be useful in this connection to refer to the decision in Partap Singh v. State of Punjab ( AIR 1964 SC 72 ), where the Supreme Court has laid down the law relating to executive actions in positive terms. The following dictum of Lord Lindley in General Assembly of Free Church of Scotland v. Overtoun (1904 AC 515) was quoted there: - "I take it to be clear that there is a condition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purposes for which they are conferred" . Ayyangar, J., further proceeded to state: - "Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case, though this may some times be done. [See Edgington v. Fitzmsurice, 1884 (29) Ch. P. 459.] The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. [See Edgington v. Fitzmsurice, 1884 (29) Ch. P. 459.] The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. We must, however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts." Ayyangar, J. then pointed out in a passage, which I think would stand the test of time in our democratic society in the present constitutional set up that "the Constitution enshrines and guarantees the rule of law and Art.226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual." 14. Regarding arbitrariness in executive action in Jaisinghani v. Union of lndia ( AIR 1967 SC 1427 ) Ramaswami, J., speaking for the Bench said in ringing words:- "The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law." 15. In E. P. Royappa v. State of Tamil Nadu ( AIR 1974 SC 555 ) Chief Justice Ray points out: - (at page 580) "... If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law." 15. In E. P. Royappa v. State of Tamil Nadu ( AIR 1974 SC 555 ) Chief Justice Ray points out: - (at page 580) "... ..where it appears to the court that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility or the declaration of equivalence is mala fide or in colourable exercise of power of.................can and certainly would set at naught the declaration of equivalence......" In that decision, how arbitrariness would attract Art.14 is also explained. "The basic principle, which, therefore, informs both Art.14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined", within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. .......... . Art.14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require the State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Art.14 and 16." 16. Where the operative reason for State action, as distinguished from motive inducing from antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Art.14 and 16." 16. Lastly, I would refer to the decision of the Supreme Court in Ajay Hasia v. Khalid Mujib ( AIR 1981 SC 487 ). There at para.16 Bhagwati, J. speaks about the scope of Art.14. Apart from Royappa's Case ( AIR 1974 SC 555 ) the learned Judge quotes from Maneka Gandhi v. Union of India ( AIR 1978 SC 597 ) where the same Judge had observed: - "Now the question immediately arises as to what is the requirement of Art.14: what is the content and reach of the great equalising principle enunciated in this Article. There can be no doubt that it is a founding faith of the constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Art.14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art.14 like a brooding omnipresence." This was again reiterated by this Court in International Airport Authority's case ( 1979 (3) SCR 1014 at P. 1042: ( AIR 1979 SC 1628 ) (Supra) of the Report. It must therefore now be taken to be well settled that what Art.14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Art.14 nor is it the objective and end of that Article. It is merely a Judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Art.14 nor is it the objective and end of that Article. It is merely a Judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Art.14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "Authority" under Art.12, Art.14 immediately springs into action and strikes down such State action, In fact, the concept of reasonableness and non-arbitrariness pervade the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution." 17. In this case, the reason for transferring back the third respondent is because the Government has taken a sympathetic attitude in his case. How is his case different from the others, why there is necessity of taking a different view as far as he is concerned are not at all borne out in the counter affidavit. Was the third respondent ill, or was he suffering from any disease, how posting to Tirur would be useful to him - nothing has been shown to this court to justify an action where a discrimination is meted out in favour of the third respondent. The State cannot take a sympathetic attitude to one which might result in creating difficulties for other persons unless for very positive reasons, the court would have been convinced that it was necessary in the interests of justice that such an attitude should have been taken. Nothing has been brought on record to establish that here. It is certainly true that the Supreme Court has said in Tara Chand v. Delhi Municipality ( AIR 1977 SC 567 ) that the High Court would be justified in refusing to carry on investigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition. It is also necessary to keep in view the well established rule that the burden of establishing mala fides lies very heavily on the person who alleges it. It is also necessary to keep in view the well established rule that the burden of establishing mala fides lies very heavily on the person who alleges it. But the question here is whether admittedly discriminatory treatment in favour of the third respondent is justified by any factors brought to the notice of the court. There are no such factors brought to the notice of the court. Mr. Parameswaran, learned counsel for the third respondent again referred to the decision of the Supreme Court in Kedar Nath v. State of Punjab (1979 SLJ 105) where also the Supreme Court has said in a case regarding allegation of mala fides that the appellant had to prove malus animus indicating that the respondent was actuated either by spite or ill will against him or by indirect - or improper motives. There could be no controversy with this principle. But as pointed out in Pratap Singh's Case ( AIR 1964 SC 72 ) itself which is referred to in Kedar Nath's Case (1979 SLJ 105) when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked the court can certainly step in. In this view, I am rescinding the order of transfer of the petitioner from the Tirurangadi Hospital. I might in this connection note that in view of the subsequent creation of the post of the R.M.O., there may not be any difficulty for the Government to retain the third respondent at Tirur, if they so desire. I would hold that in view of the finding made by this court, the order of transfer of the petitioner from Tirur for accommodating the third respondent is against law. The petitioner will have to be retained at Tirur. O.P. is disposed of with the above observations. I make no order as to costs. In view of the fact that no stay had been granted to the impugned order, the petitioner had been relieved from Tirur. It is said that he is now on leave. The petitioner should be allowed to join duty at Tirur forthwith.