JUDGMENT 1. - These special appeals involve identical question and therefore they have been heard together and are being decided by one common judgment. 2. The present appellants and one Chandra Kiran Bansal had filed six separate writ petitions which came up for decision before the Learned Single Judge. Special Appeal No. 31 of 1982 arises out of the Judgment delivered by the learned Single Judge, Hon'ble Dr. K.S. Sidhu J. on 31/3/1982, whereas all the other four special appeals arise out of the common judgment delivered by the learned Single ,Judge, Hon'ble G.M.Lodha J., dated 30/7/1982. 3. Shri Vikram Singh Chauhan was the Divisional Chairman of the All India Station Masters Association at Ajmer Division and was posted at Abu Road, and has been transferred to Madras, i.e. from Western Railway to Southern Railway. 4. Shri R.K. Bhatnagar, who was Zonal Vice-President of All India Station Masters Association was posted as Station Master, Gagalkhari (Jaipur Division of Western Railway) has been transferred to Bhavnagar Division. 5. Shri R.N. Sharma, Asst. Station Master, Bandikui, who was General Secretary of All India Station Masters Association, Western Railway, was transferred to Southern Railway. 6. Shri Gopinath, who was posted as Station Master, Roopwas(Western Railways) and was Divisional President, Kota Division, All India Station Masters Association, has been transferred to Bhavnagar Division. 7. Shri Rajendra Kumar, who was posted as Assistant Station Master, Gangapur City and was Divisional Secretary, Kota Division, was transferred to Bhavnagar Division. Several other office-bearers of the All India Station Masters Association were transferred from one division to another division, or from one Railway to another railway. But, only six writ petitions seem to have been filed challenging their transfer orders in the High Court, Jaipur Bench. One writ petition filed by Ravindra Nath Sharma came to be decided by Hon'ble Dr. K.S. Sidhu J. on 31/3/1982, and the other five writ petitions were disposed of by Hon'ble G.M. Lodha J. by his order dated 30/7/1982. It appears that Shri Chandra Kiran Bansal, who had filed a writ petition in the High Court, S.B. Civil writ Petition No. 726/1981, disposed of by Hon'ble Lodha J. has not filed any special appeal. All the five special appeals have been heard together and are being disposed of by this single judgment. 8. The writ petitions filed by the petitioners were admitted. All the five special appeals have been heard together and are being disposed of by this single judgment. 8. The writ petitions filed by the petitioners were admitted. The operation of the transfer order was stayed and after hearing the argument the stay orders passed were confirmed. After the judgment of the learned Single judge dismissing the writ petitions when the appeals came up for admission, Mr. G.S. Bapna had filed caveat on behalf of the Union of India and the learned counsel for both the parties requested that the appeals may be decided on merits at the admission stage and, therefore, the special appeals were heard at length at the admission stage and are being decided finally by this common judgment. 9. During the pendency of the appeals status quo was ordered to be maintained and, as such, the impugned transfer orders have taken effect so far as the present appellants are concerned. 10. The petitioners' averments in the various writ petitions, briefly stated, are that Indian Railways are divided into several railways, such as Western Rly., Southern Rly. and so on. Every zone consists of several railway divisions. Western Railway consists of eight railway Divisions. Each railway division is a unit for the purpose of seniority and promotion of Asst. Station Masters/Station Masters. The seniority in that cadre is maintained division wise throughout the Indian Railways. The avenues of promotion are also confined within the division. There are nearly 4000 station masters in Western Railway. Station Masters and Asst. Station Masters have formed a registered trade union, which is known as All India Station Masters Association and, which has its Branches in all railways and various divisions thereto. All India Station Masters Association served a notice dated 23/3/81, on the Railway Administration demanding redressal of their grievances failing which they would stop work and boycott the control phone for 24 hours on 10/4/1981. Since the Railway Administration did not head to their warning, the members of the Association throughout India boycotted the control phone for 24 hours on 10/4/1981 throughout India. During this period no untoward incident happend or any accident took place. The Railway Administration did not very much like or appreciated the said boycott and with a view to systematic victimisation of Station Masters/Asstt. During this period no untoward incident happend or any accident took place. The Railway Administration did not very much like or appreciated the said boycott and with a view to systematic victimisation of Station Masters/Asstt. Station Masters transferred all the Office- bearers of the Association at various levels from one place to another in the same division or in some cases from one railway to another railway. These transfer orders have been challenged in these writ petitions on the ground that these transfers were made only to punish and terrorise the office-bearers from taking part in the trade union activities. The transfer orders were violative of Articles 14 and 16 of the Constitution of India because out of a large number of employees only the office-bearers were picked up for transfers either to a different divisions within the western railway, or to other railways. The impugned order of transfer involved a change of cadre. The seniority being maintained division-wise and promotion also confined to the division. The transfer order would result in deprivation of right of consideration for future promotion. The transfer order was arbitrary and malafide and only the office-bearers have been picked up to curb the trade union activities and there was no rationable in picking up the petitioners and other office-bearers only. 11. A reply to the writ petition was also filed by the Railway Administration and it was submitted that the transfer was within the cadre of Asstt. Station Masters, and although the seniority is maintained unit-wise they can be transferred from one division to another division or from one Railway to another Railway as provided in the relevant rules and regulations framed by the Railway Administration in this respect. It was submitted that the All India Station Masters Association was not a recognised trade union with the Railways and, therefore, the Railway Administration was not aware about its activities, or about its office-bearers and, that the action of boycotting the control phone was wholly unjustified and that the transfer orders were not passed either for harassing or for victimising the petitioners. They were ordered to be transferred by the competent authority. A copy of the said order was enclosed and produced along with their reply as Annexure R/1, in which it was asserted that the transfer was in the interest of the Administration. They were ordered to be transferred by the competent authority. A copy of the said order was enclosed and produced along with their reply as Annexure R/1, in which it was asserted that the transfer was in the interest of the Administration. It was also asserted that it was not known as to how many persons participated in control phone Boycott. The petitioner will not lose his seniority or his chances of promotion and that the Railway Administration was fully competent to transfer an employee out of the division and to other railway as provided in Chapter III of IREM and Rule 146 of the Railways Establishment Code Vol. I and, as such, there was no violation of Articles 14 and 16 of the Constitution. The transfer orders being in public interest cannot be assailed or quashed by the High Court in its extraordinary writ jurisdiction. 12. We have carefully considered the pleadings and the record of the case and also the arguments made at the Bar before us. 13. The main contention of the learned counsel for the appellants is that the decision to boycott the contort phone was taken by the Executive Committee and the appellant had no active role in either taking the decision or in implementing the same or getting it enforced except that in pursuance of the said decision of the All India body they along with other members of the Association had resorted to boycott of the control phone. The boycott of the control phone was really very successful and all the members of the Association throughout India resorted to the same in pursuance of a call from the All India body. In Jaipur Division also, the control phone boycott was very successful and nearly 3000 members of the Station Masters and Asstt. Station Masters who were members of the All India Association from the Western Railway took part in the said control phone boycott and it is only the office-bearers who have been picked up and are being punished for taking part in the control phone boycott which is violative of Articles 14 and 16 of the Constitution of India. There was no basis or criteria or any rationale to pick up the appellants and other office-bearers. There was no basis or criteria or any rationale to pick up the appellants and other office-bearers. Shri G.S. Singhvi relied on N.N. Singh v. General Manager (1973 (1) SLR 1153) wherein the Calcutta High Court has held that the Court is competent to interfere and substitute its own judgment if the order has been passed for other purposes in the garb of ostensible purpose of public interest. The Court can scrutinise the administrative order if, mala fidely passed in colourable exercise of power even though it may be free from violation of any constitutional or statutory provision. The learned counsel for the appellants relying on this authority has argued that Railway Administration's order transferring the appellants was mala fide and in colourable exercise of its power. The impugned order only says that the transfer was in the interest of the administration. Even after filing the writ petition the Railway Administration has filed reply to the return in which it has not been shown as to how the transfer of the appellants was in the interest of Administration. The mischief, if any, had been done and by transferring alone no untoward incident can be stopped from happening and the administration has not taken the plea that the transfers were made to avoid any future harm or damage or to avoid public inconvenience. In the present case, though the control phone boycott was very successful, but no incident occurred anywhere through- out India, nor any inconvenience was caused to the public. It was a token that the control phone boycott was resorted to, which in fact, did not harm anybody much less the Railway Administration. Even though the administration has the power of transfer; but since it has been passed mala fide with an ulterior motive and in colourable exercise of power only with a view to punish the office-bearers, this Court should interfere and quash the transfer orders passed against the appellants. The facts of the Calcutta case are quite similar to the one in hand. This authority has been followed and relied on in Ramaneck Chowdhary v. State of Bihar (1975 (2) SLR 67) and, it has been observed that if the transfer order is passed for collateral purposes in the garb of legal purposes it amounts to colourable exercise of power and the High Court can go into the propriety of the same. This authority has been followed and relied on in Ramaneck Chowdhary v. State of Bihar (1975 (2) SLR 67) and, it has been observed that if the transfer order is passed for collateral purposes in the garb of legal purposes it amounts to colourable exercise of power and the High Court can go into the propriety of the same. High Court is fully competent to quash such order. These two authorities have been relied on and followed in P. Damodaran v. State of Kerala (1982 (I) SLR563) by the Kerala High Court and it has been observed that the power to transfer should be exercised reasonably and fairly and in the best interest of the administration. Where the power is exercised for extraneous or irrelevant consideration or for mala fide reasons or as a punishment or as an act of victimisation it will be a case of perverse exercise of abuse of power and, therefore, the High Court has ample power and jurisdiction to strike down such an 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 malice act. A person acts mala fide if he exercises power perversely or unauthorisedly or improperly or unreasonably. 14. The learned counsel for the appellant has also relied on a division bench judgment of this Court in Shambhu Dayal Kureel v. Union of India & ors, (1982 Rajasthan Law Reporter, 181) , wherein it has been observed that where the petitioner alleged mala fide against the respondents, the burden of proof lies initially on the petitioner; but when a prima facie case of mala fide is made out, the Government is bound to place full material before the Court to justify its action, otherwise, the Court can examine whether the order of the Government was bona fide or not. Relying on this authority, it has been urged by Mr. Singhvi that since the railway Administration has not shown any cause or even mentioned anything in their reply to the return they filed, nor has placed any material what soever to justify the transfer or has given adequate reasons for the same, this Court has ample jurisdiction to quash the transfer order. Singhvi that since the railway Administration has not shown any cause or even mentioned anything in their reply to the return they filed, nor has placed any material what soever to justify the transfer or has given adequate reasons for the same, this Court has ample jurisdiction to quash the transfer order. The order being mala fide for extraneous purposes so as to punish and victimise the office- bearers of the Association on whose call the control phone boycott was held successfully, with a view to curb the trade union activities of the petitioners- appellants. 15. Reliance has also been placed by Mr. Singhvi on a judgment of this Court, to which one of us was a party, decided on 14/4/1981, S.B. Civil writ petition No. 41 of 1981, Kusum Saxena v. State of Rajasthan & Others , wherein it has been observed that in any service transfer, promotion, retirement etc. are the incidents of service. Transfer is always one of the hazards of service. The employer has full power to transfer his servant wherever he wanted in public interest and administrative reasons. However, this does not mean that this power is absolute in the sense that the State can exercise this power for extraneous considerations or of ill-will or with mala fide intention. The power cannot be exercised arbitrarily or against any rules if made in this regard, and if the power was used on account of ill-will or with mala fide intention or was for extraneous consideration, the High Court has ample power to strike down such order in its extraordinary writ jurisdiction under Article 226 of the Constitution. 16. Supreme Court in E.P. Royappa v. State of Tamil Nadu and Ors, (1974 (1) SLR 497) has observed that any administrative order which is mala fide, arbitrary or for extraneous consideration can be questioned and quashed by the Court if they are violative of Articles 14 and 16 of the Constitution. In para 82 of their judgment they observed that : "Art. 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. In para 82 of their judgment they observed that : "Art. 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is no vital to the building up of the new classless egalitarian society envisaged in the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus whereas Article 16 is a species. Article 16, gives effect to the doctrine of equality of all matters relating to public employment. The basic principle which, there informs both Articles 14 and 16 is equally and inhibition against discrimination. Now, what is the content and teach 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, combined or confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other, to the whin and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it and it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment it is also violative of Article 16. Arts 24 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They requite that 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. Arts 24 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They requite that 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 the 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 Articles 14 and 16, mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16." 17. This authority was relied on again by the Supreme Court in a later decision in Ajay Hasia v. K.M. Sehravardi (1980 (3) SLR 467). 18. Shri G.S. Singhvi also relied on a judgment of the Delhi High Court, in Prem Parveen v. Union of India (1973 (2) SLR 659) , wherein it has been observed that a Government servant who is recruited to a particular cadre cannot be compelled to serve outside his cadre and that the Court can interfere if the transfer is mala fide and if the petitioner prima facie shows that the transfer was not bona fide, but mala fide for extraneous consideration, the Government should place full material before the Court to determine for itself whether the order was bona fide or not. 19. Mr. Singhvi also relied on another judgment of Calcutta High Court in the case of Smt. Pushpika v. State of West Bengal (1972 SLR 910) , which has gone to the extent of observing that if an order of transfer is made to accommodate or to retain another officer, the High Court is competent to interfere even though no civil or evil consequences follow, because the transfer order was not in public interest, nor it was for administrative purpose and, therefore, the order was for collateral purposes and was mala fide. 20. 20. The learned counsel for the appellants has further relied on a division bench judgment of this Court in M/s Aditya Mills Ltd. v. Ram Dayal & ors, ( 1972 WLN 548 ) , wherein their Lordships while dealing with the matter under the Industrial Disputes Act, 1947, have analysed and discussed the meaning of the ward "Victimisation" and have discussed several authorities cited before them and have come to the conclusion that if an order is passed due to the displeasure against the workman on account of his union activities or a workman is put to a disadvantageous transfer due to union activities or action is arbitrary against the office-bearers of the Union, it will amount to victimisation and, thus, Mr. Singhvi has argued that since the impugned transfer order was pawed, only against the office-bearers of the Union and were not given even joining time though permitted under the Railway Establishment Code. It amounts to victimisation for taking part in union activities and, therefore, mala fide and is liable to be quashed by this Court. 21. Mr. Singhvi has also relied on the Management of the Syndicate Bank Ltd. v. The Workmen ( AIR 1966 SC 1283 ) , wherein the Supreme Court has observed that the Industrial Tribunals should be very careful before they interfere with the order of transfer made by the Management; but they have further said that : "It is true that if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for his trade union activities, the Industrial Tribunals should interfere and set aside such an order of transfer, because the mala fide exercise of power is not considered to be the legal exercise of the power given by law." 22. Mr. Bafna, learned counsel for the Union of India and Railway Administration, has supported the judgment of the learned Single judge and has argued that the action of transfer was not mala fide; but only For administrative convenience and in public interest, and not with a view to victimise the appellants or with a view to punish them for taking part in union activities. But he has placed no material on record to justify as to how the transfer orders only of the office- bearers of the Union out of nearly 3000 persons was thought to be in the interest of administration, or any criterion or reasoning to support the picking of the office- bearers of the Union for transferring them from the present post to either other railways or to any different divisions. He has mainly relied on a decision reported in Suraj Mal v. State of Haryana (1973 (2) SLR 863) , in which the Punjab & Haryana High Court has upheld the order of transfer made by the Government transferring some of the teachers to prevent them from taking part in rallies and has argued that the transfer of the appellants was also done with a view that they may not take part in the union activities and mobilise its members in future. This argument is without force, because this point has not been taken in their reply to the return filed by the Railway Administration and secondly, in the facts of the case, this plea is not applicable because the transfer orders in the present case were passed after the control phone boycott had taken place and there was no future plan of the Association for agitating their grievance for which any preventive action was to be taken. The case would have been different if the Railway Administration had transferred these appellants and other officer-bearers before 10/4/1981, when the control phone was boycotted, then it could have been said that these transfer orders were made to prevent the boycott; but once the boycott having taken place and there was no further plan or move on behalf of the Union, it cannot by any stretch of imagination be said that these orders were passed for preventing some proposed action. 23. Mr. Singhvi has relied on several authorities on the point that plea which has not been raised in the return cannot be allowed to be taken up or argued by the respondents, more so, at the appellate stage. We need not discuss the authorities as it is a well established principle of law, we will just quote them; 24. 23. Mr. Singhvi has relied on several authorities on the point that plea which has not been raised in the return cannot be allowed to be taken up or argued by the respondents, more so, at the appellate stage. We need not discuss the authorities as it is a well established principle of law, we will just quote them; 24. The learned counsel for the appellant also relied on an unreported D.B. judgment of the Andhra Pradesh High Court (Writ Petition No. 3497 of 1981) decided on 2/2/1982 (18) P. Devadonam P. & Others v. The General Manager , in which case the petitioners were members of Loco Running Stall' Association of the South Central Railway and had challenged their orders of transfer on the ground that they were passed by way of punishment and not for administrative reasons as they had absented themselves from stork on 29/4/1981, which was observed as anti-repression day by the loco running staff association of the Southern Central Railways. Their Lordships of the Andhra Pradesh High Court have considered Rule 146 of the Railway Establishment Code Vol. I which provides for the transfer of railway servant and have also considered several authorities at great length and have come to the conclusion that:- "It is no doubt true that this Court would be extremely reluctant and disinclined to interfere with the exercise of administrative discretion in affecting transfers as the administration is the best judge to determine the desirability or propriety of the place to which any particular Government servant should be posted. But at the same time it is clear from the authorities reported to above that this Court is entitled to interfere if the transfer is not made according to the rules, in the exigencies but for extraneous considerations from the mere fact that in the counter affidavit it is stated that the transfer was made in the exigencies of service, it does not follow that the court is not entitled to determine for itself whether the transfer was made in the exigencies of service or for extraneous consideration. It is open to the Court to go behind the clock, disguising the order of transfer and look into the background and appreciate all the circumstances which resulted in the order of transfer in order to determine whether the order though apparently innocuous was really meant to punish the officer concerned." And ultimately found that the transfer orders were not effected in the exigencies of service, but as a result of retaliation against the petitioners for participating in the demonstration on the anti-repression clay and, therefore, allowed the writ petitions. This judgment was followed and relied by another Division Bench of the Andhra Pradesh High Court, while deciding writ petition No. 2990 of 1981, wherein the transfer orders were made on 12/4/1981 immediately after the control phone boycott and the petitioners were not even allowed joining time, and found that, "in this case beyond merely stating in the counter affidavit that the transfers are effected in the interests of administration or for exigencies of service it is not indicated as to why there should be a mass transfer of all the Station Masters and Assistant Station Masters at the same time" and, therefore, quashed the transfer orders. This case is on all fours and exactly identical and similar to the case before us. Mr. G.S. Singhvi, learned counsel for the appellant also placed reliance on the decision of the Kerala High Court in K.K. Menon & Ors. v. Sub Inspector & Ors., (1982 KLN 590) , in which the Kerala High Court quashed the prosecution of the railway employees for taking part in the control phone boycott by the members of the All India Station Masters Association on 10/4/1981. 25. Keeping in mind the observations of the various High Courts mentioned above, we have no hesitation in coming to the conclusion that the present transfer orders of the petitioners-appellants were not bona fide, but mala fide with view to punish the appellants being office-bearers of the All India Station Masters Association in Western Railway and with a view to curb their trade union activities. More so, when the Railway Administration has not erect able to place on record any fact, circumstance or evidence to show as to how these transfers were in the interest of administration or in exigencies of service. 26. More so, when the Railway Administration has not erect able to place on record any fact, circumstance or evidence to show as to how these transfers were in the interest of administration or in exigencies of service. 26. Therefore, we allow these special appeals, set aside the judgment of the learned Single judge and allow the writ petitions and quash the transfer orders of the petitioners appellants. 27. Separate copy of this judgment may be placed on record of each appeal. 28. Looking to the facts and circumstances of the case, there shall be no order as to costs. *******