Asu Singh v. State of Rajasthan — 1983 DIGILAW 569 (RAJ)

BHATNAGAR, J.— In this writ petition under Art. 226 of the Constitution of India Asu Singh petitioner, an employee of the Education Department, has prayed for quashing the order of transfer Ex. 5/1 dated 21. 7. 83 qua the petitioner. 2. The brief facts of the case stated in the petition are as follows: In August 1982, the petitioner, already in the service of Education Department, was posted at Government Upper Primary School. Railway Colony, Barmer, vice Shri Ram Choudhary, non-petitioner No. 3 and joined on that post on 2.8.82. Non-petitioner No. 3 who was working on the aforesaid post was there for a long time. He did not handover the charge as required under law. During the tenure of his posting on the aforesaid post, non-petitioner No. 3 had committed several irregularities regarding the store which was under his control. He was also not having the material as per record and for that reason he was not intending to handover the charge of his post. While petitioner was working on his aforesaid posting, he received a communication on 9 8.82 from the Superintendent of Police, District Jalore, calling upon him to verify the transfer certificate issued to one Birma Ram. The petitioner sent reply that no such certificate had been issued nor any such date of birth is available in the record of the school. That, looking to the nature of the irregularities, non-petitioner No. 3 was guilty of serious misconduct and was liable to be dealt with by way of disciplinary action against him. But un-fortunately, no, enquiry in accordance with the law had been initiated against Kirn, That, in, the guise of public proposal (Janta Prastav) transfers are affected by the respective authorities, in utter disregard to the Circular dated 15.4.83 issued by the State of Rajasthan laying down the ins-tructions with regard to the transfer. That, non-petitioner No. 3 Was able to get public proposal desiring his posting vice the petitioner. The proposal was not carried out by the nan-petitioner No. 2 and information to that effect was sent to the Deputy Director, Education Department, Jodhpur, that, it was not possible to carry out the desire as the post was not vacant. Non-petitioner No,. That, non-petitioner No. 3 Was able to get public proposal desiring his posting vice the petitioner. The proposal was not carried out by the nan-petitioner No. 2 and information to that effect was sent to the Deputy Director, Education Department, Jodhpur, that, it was not possible to carry out the desire as the post was not vacant. Non-petitioner No,. 3 was bent upon to get himself transferred on the post of Head Master, held by the petitioner and, therefore, orders were got issued from one Anant Ram Sharma, while Mahesh Chandra Sharma, the Inspector of Schools was no leave. That, the transfer order so passed caused a pecuniary loss of Rs. 30/- per month, which the petitioner was getting to as special allowance for the post. The petitioner has, therefore, challenged the impugned order of his tansfer on, the grounds of malafides; pecuniary loss to him; violation of rules and having been passed by un-authorised person. It has also been averred that the petitioner being the active Member of Rajasthan Shikshak Sangh, holding the post of District Secretary and also being the Member of the State Executive Council, was actively raising the grievance of the members of the Sangh and for that reason the Govt, desiring to curb upon the activities of the Union, transferred the petitioner by way of penalty and victimisation so that he may be put to financial loss of Rs. 30/-p.m. The petitioner has, therefore, prayed for the stay of the impugned order dated 18. 7.83 and its being quashed qua the petitioner. 3. Notices were issued to the non-petitioner to show cause at the admission stage. Mr, L. S. Udawat, Assistant Government Advocate appeared on behalf of non-petitioners No.l and 2 and Mr. S N. Sharma appeared for non-petitioner No. 3. In the reply filed on behalf of non-petitioners No. 1 and 2 it has been stated that the post of Assistant Teacher Grade-II and that of the Head Master are both interchangeable and are of the same pay scale. That, it is only by virtue of the extra work to be done by the Head Master, that special allowance of Rs. 30/- per month is allowed for the post, but that does not create a right in any person. That, the institutional interest is always uppermost and the transfer of the Government Servant is an administrative matter. That, it is only by virtue of the extra work to be done by the Head Master, that special allowance of Rs. 30/- per month is allowed for the post, but that does not create a right in any person. That, the institutional interest is always uppermost and the transfer of the Government Servant is an administrative matter. That, the impugned order issued by the non-petitioner No.2, now re-designated as District Education Officer, has been issued on administrative grounds after taking into consideration all the aspects including the instructions of the higher authorities and recommendations from all the quarters in the best interest of the institution. That, the allegations against non-petitioner No. 3 were found to be baseless and were not considered to come in the way of posting him in place of the petitioner in the best interests of the institution. That, the petitioner avoided the service of the impugned order of the higher authorities. That, the non-petitioner No 3 had joined on the post of his transfer vice the petitioner and as such the petitioner was automatically relieved on 21.7.83. That, Mahesh Chandra Sharma being on leave, Anant Ram Sharma passed order. It cannot be said to have been passed by un-authorised person, for the reason that the approval was taken from the higher authority, that is, the Deputy Director of Education, Jodhpur, at Bhinmal. That, the impugned order of transfer is purely an administrative order issued for administrative exigency, by the competent authority after application of mind. For these reasons, non-petitioners No. 1 and 2 prayed for the dismissal of the writ petition. 4. Petitioner filed rejoinder to this reply and reiterated that the non-petitioners have failed to make out any case of administrative exigency for retransferring non-petitioner No. 3 to the post which the petitioner was holding. That, the non-petitioners have failed to convince the Court that the transfer of the petitioner was made bonafide. That, the petitioner was holding the psto up to 21.7.83 and, thereafter, left the head-quarter with permission As such he, was not relieved from that post and non-petitioner No. 3 cannot be said to have joined. That, the petitioner had been transferred at the instance of the political leaders. That, the transfer was because of the vindictive attitude, to harass the office bearers of the Union by causing them pecuniary loss. That, the petitioner had been transferred at the instance of the political leaders. That, the transfer was because of the vindictive attitude, to harass the office bearers of the Union by causing them pecuniary loss. That the contention that non-petitioner No. 3 was suspected to be guilty of serious misconduct during the tenure of his office as Head Master of this very institu-tion, has been met out only by the sweeping reply by the non-petitioner. 5. An affidavit to meet out the contentions in the rejoinder has been filed by B K. Vyas, Deputy District Education Officer (Legal), Jodhpur, statings that the Standing Order No. 3 of 1974 Ann. 6 filed by the petitioner stand-superseded by the subsequent instructions issued from time to time, and there, fore, there was no bar for allowing a person to hold the post of Head Master Upper Primary School for a period of five years or more. No reply was initially filed by non-petitioner No. 3. 6. On 21.9.83 at the request of the learned counsel for the parties it was ordered that the case will be finally heard and disposed of at the admission stage and, therefore, final arguments on the writ petition were heard on 10.11.83 and 15.11.83. On 16.11.83 when the arguments were at the rag end, Mr. S.N. Sharma learned counsel for the non petitioner No. 3 filed a written reply. The learned counsel for the petitoner objected to its being taken into consideration How-ever, in view of the fact that arguments were still on at the time of filing that reply and the contentions in the reply would not materially effects the interest of the petitioner, it was taken on record. 7. In the reply, so filed non-petitioner No.3 has stated that he had joined as Head Master on 21.7.83. That, he had not worked in that scale continuously for the last 13 years. That, he was posted at various places as Head Master besides the present institution where he had joined on 3.9 77 and remained up to 2.8.82 as Head Mister, prior to his transfer vice the petitioner by the order passed in August, 1982. That, no allegations of malafides had been made by the petitioner in the writ petition against a specific person. That, no allegations of malafides had been made by the petitioner in the writ petition against a specific person. That, Inspector of Schools has been made a party in the writ petition though there is no more any such post in the Education Department. That, neither the District Education Officer nor the Deputy Director Education have been impleaded as a party in the writ petition. 8. The learned counsel for the non-petitioner No. 3 had raised a preliminary objection for not impleading the District Education Officer as a party in the writ petition. According to Mr. Sharma, there is not more any post of Inspector of Schools and therefore, unless the officer concerned with the issuing of the transfer order is made a party, the allegation that the transfer is not made bona-fides does not hold good and the writ petition should be dismissed on this ground. The argument has no force. The reply has been filed on behalf of non-petitioner No. 1 and 2. Mr. L.S. Udawat, learned Assistant Government Advocate, appearing on behalf of non-patitioners No. 1 and 2 has submitted that the reply has been filed on behalf of the District Education Officer taking him to be non-petitioner No. 2 because the post of the Inspector of Schools, had been re-designated as District Education Officer. In this view of the matter, the preliminary objections is ruled out. 9. Learned counsel for the petitioner has assailed the impugned order on a number of grounds The first ground of attack is that the same has been passed without any administrative exigency. In other words, it has been passed with malafides at the instance of the political leaders in order to accommodate non-petitioner No. 3. According to Mr, Mridul, so far as the information of the petitioner goes, non-petitioner No. 3 was enjoying the benefit for the post of Head Master about 13 years and as such could not tolerate the pecuniary loss of Rs. 30/- per month and therefore managed with the leaders to get himself retransferred to the same post from which he was relieved before less than a year. The argument has been met out by the other side on plea of administrative exigency and the absence of allegation of malafides against the authorities passing the order. 10. 30/- per month and therefore managed with the leaders to get himself retransferred to the same post from which he was relieved before less than a year. The argument has been met out by the other side on plea of administrative exigency and the absence of allegation of malafides against the authorities passing the order. 10. The allegation in the writ petition is that in the guise of the public proposal transfers are effected despite there being no provision to give effect to such public proposals. That non-petitioner No 3 has managed to get public proposal for his retransfer to this institution as Head Master. 11. Mr. Mridul strenuously contended that this allegation has not been refuted by any of the non-petitioners. Non-petitioners No. 1 and 2 in their reply have asserted that the order of transfer was not because of any insistence by any body, rather was issued after the concerned authorities applying their minds to the situation. In para No 2 of the reply of the non-petitioners No. 1 and 2, it has been mentioned that the impugned order has been issued on administrative grounds after taking into consideration, all the aspects including the instructions of the higher authorities and the recommendations from all quarters in the best interests of the institution. 12. Mr. Mridul contended that non-petitioners have avoided to reply the contentions in the writ petition, that serious irregularities were committed by non-petitioner No. 3 during his tenure as Head Master of this very school and That, after the petitioner taking over the charge, Superintendent of Police, Jalore, has enquired about the genuinness of the certificate issued to one Birma Ram. that, there were irregularities and material for taking action against non-petitioner No. 3. There is no specific denial to it. Mr. Mridul placed reliance on the case of C. S Rowjee vs. State of Andhra Pradesh (1), wherein their Lordships have been pleased to enunciate the principle that where there are allegations of malafides and of improper motives on the part of persons in authority, those persons in authority should place on record their version or denial. Their Lordships have emphasized upon the duty of the Court to scrutinise carefully the allegations so made. 13. Another case referred to by Mr. Mridul is S. Pratap Singh vs. State of Punjab(2). Their Lordships have emphasized upon the duty of the Court to scrutinise carefully the allegations so made. 13. Another case referred to by Mr. Mridul is S. Pratap Singh vs. State of Punjab(2). Serious allegations were made against the Chief Minister which, he alone could have personal knowledge and therefore, he alone could deny. However, the material placed on record to deny these allegations was the affidavit of the Secretary of the Government in Medical Department. Their Lord-ships were of the opinion that such allegations could be disproved only by the persons against whom the allegations were made by denying the same on oath. 14. In the present case, there is no specific allegation of malafides against the authority passing the order. The averment rather is that in order to accommodate non-petitioner No. 3 at the instance of political leaders, the concerned authority without applying mind passed a hasty order. In order to substantiate this contention, reference has been made to the passing of the order when the regular incumbent of the office of the District Education Officer was on casual leave, having the charge with him. 15. This is not in dispute that on the date of the issuing the order Mahesh Chandra Sharma, the District Education Officer at the relevant time, was on casual leave. Anant Ram Sharma, according to the petitioner, was not an officer next in seniority to him. Contention of the regular incumbent on the post not agreeing to the proposal of the transfer of the non-petitioner No. 3 vice the petitioner, could not be substantiated by the petitioner. The order being passed by person next senior to the regular incumbent on the post, while the latter is on casual leave, will in itself not make the order illegal, specially when approval of the higher authorities is taken. Anant Ram Sharma according to the ncm-petitioner No.3 was next senior officer to Mahesh Chandra. Sharma and the petitioner could not substantiate his case that he was no so. The order therefore cannot be said to have been passed by un-authorised person. However, if the other circumstances would show that there was some reason for getting a hasty approval and passing the order also in haste, this fact might be taken into consideration by the Court. Mr. Mridul in this connection placed reliance on the case of Dr. The order therefore cannot be said to have been passed by un-authorised person. However, if the other circumstances would show that there was some reason for getting a hasty approval and passing the order also in haste, this fact might be taken into consideration by the Court. Mr. Mridul in this connection placed reliance on the case of Dr. S. P. Kapoor vs. State of Himachal Pradesh(3) In that case meeting of Promotion Committee was held when a member, Secretary of the Department was on leave, by appointing Principal Secretary to the Chief Minister aditionally as Secretary of the Department. The appointments were made by accepting recommendations on the date on which they were made. Despite these being no specific allegation of malafides to any body, the matters of appointments, were ordered to be considered afresh because the post-haste manner in which these things have been done in one particular way suggested that some higher-up was interested in pushing through the matter hastily while the regulare Secretary, Health and Family Welfare was on leave. 16. The contention of Mr. Udawat is that, it was not an order for the transfer of the petitioner alone, rattier several persons were transferred by that order and therefore, the District Education Officer being on leave would not at all matter. If circumstances of the case, to be discussed presently, suggest that authorities were favourable to the non-petitioner No. 3, this point may however assume importance. 17. The petitioner has contended that he was not allowed to continue on the post of Head Master which carried the pecuniary gain of Rs. 30/- per month for the reason of non-petitioner No. 3 being interested in that post and also to cause harrasment to the petitioner because of his being active member and Secretary, Rajasthan Shikshak Singh. That, his being kept at Barmer after transfer from the post of Head Master could not be a solace to him because of the financial loss of Rs. 30/- per month. The material regarding the voice raised by the Sangh causing annoyance to the State has not been brought on record. True it is that there is financial loss to the petitioner but whether it was by way of punishment or victimisation to him or not cannot be known from the available record. 30/- per month. The material regarding the voice raised by the Sangh causing annoyance to the State has not been brought on record. True it is that there is financial loss to the petitioner but whether it was by way of punishment or victimisation to him or not cannot be known from the available record. Therefore this pecuniary loss to the petitioner may strengthen his case only if he succeeds in establishing that he could have claimed it as of right for a particular period or that non-petitioner No.3, though not entitled to it after serving on that post for a long period, was given an undue advantage. 18. The principle enunciated in the case of C C. Padamanbhan vs. Director of Public Instructions (4), relied on by Mr. Mridul, do not apply to the present case. In that case the posts of A.E.O. and H.S.O. were not considered as interchangeable. The former post carried special pay of Rs. 50/- per month, and, therefore entitled its incumbents higher emoluments than were available to an H.S A. That special pay was also computed towards pension. Therefore, the A.E.O. being posted as H.S.A. was considered to be violative of Art. 14 of the Constitution, as the same involved reversion. 19. Here the post of Head Master, Government Upper Primary School, and the post of Asstt. Grade II fall in the same cadre and both are interchangeable. The pay-scale is the same. However, the Head Master in Upper Primary School from amongst that cadre is entitled to special allowance of Rs. 30/- per month which according to the non-petitioners was for some extra work to be done by the Head Master. Thus, an employee cannot claim as of right to be on the post carrying with it special pay. If the administrative exigency so require, she may be transferred at any time. However, if one person is not allowed that special pay for a reasonable period even and the other person enjoying that benefit for long is again favoured and re-transferred to that very post in that very institution, there may be reasonable cause for the employee deprived of benefit, feel aggrieved. It may also justify interference by courts if circumstances denote malafides on the part of the authorities issuing the order or there is any violation of the Rules or administrative instruction in that regard. 20. It may also justify interference by courts if circumstances denote malafides on the part of the authorities issuing the order or there is any violation of the Rules or administrative instruction in that regard. 20. It is made clear that while dealing with such matter the principle should not be lost sight of, that Courts should ordinarily feel reluctant to interfere in the orders of transfer, because it is the Government who had to run the administrative machinery. If a particular act of the . Government is done in normal course, be it disadvantageous to some and advantageous to others, the courts interference would be undesirable However, if there are allegations of malafides or there is violation of any Rule or administrative order in that regard. Courts should not shrink from scrutinising the matter and interfering with the impunged order. In order to appreciate the facts and circumstances of the present case, it would be proper to look to the principles enunciated in the various authorities on the point cited by the learned counsel for the parties 21. The burden of proving the malafides is always on the party alleging the same. It would be then for the other side to refute the same by placing. proper material on record. However, there may be cases when both the parties fail to place relevant record before the Court but malafides may be gathered from the facts and circumstances of the case. 22. Mr. S.N. Sharma referred to the case of Daitary Patnaik vs. State of Orissa (5) In that case malafides were alleged against the authorities concerned for the compulsory retirement of the petitioner. Their Lordships did not consider the order of termination to be malafide for the reason that malafides were not alleged against the appropriate authority. 23. In reply to that Mr. Mridul placed reliance on the principles enunciated in the case of the State of Punjab v. Ramjilal(6). In that case the action taken by the State Govt. was challenged on the grounds of malafides. Their Lordships were pleased to enunciate the principle that in such cases it is not necessary for the parties alleging. to name in the petition particular officer or officers responsible for that official act. In that case the action taken by the State Govt. was challenged on the grounds of malafides. Their Lordships were pleased to enunciate the principle that in such cases it is not necessary for the parties alleging. to name in the petition particular officer or officers responsible for that official act. The State Government has undoubtedly to act through its officers What matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in name of the Governor, are ail within the knowledge of the State Government. In this view of the matter their Lordships propounded that, it would be placing an intolerable burden in proof of a just claims to require a party alleging malafides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose. 24. In the present case, non-petitioners No. 1 and 2 have referred to the recommendations from all quarters, playing a role in the issuance of the impugned order and therefore it was for them to refute the allegation of political pressure in favour of the non-pe!itioner No. 3 leading to his accommodation on the post carrying with it an allowance and that too in the same institution wherefrom he was transferred only less than a year back. 25. In the case of Swam Lata vs. U.O.I. (7) the petitioner had alleged malafides and bias for the selection of the post of Principal, Govt. Central Crafts Institution by direct recruitment. Their Lordships, from the material on record, did not hold that there was any bias on the part of the Director or he was influenced by the members of the Selection Committee in any manner so as to vitiate the selection of non-petitioner No.6. The allegations in the writ petition were not considered to be sufficient to constitute averments of malafides or bias on the part of the Chandigarh Administration or in particular against Dr. G.S. Sehgal. 26. The case of K.B. Shukla vs. U.O.I. (8) relied on by Shri S.N. Sharma, related to the transfer from State Civil Services or other Services under particular Rules challenged in Court. G.S. Sehgal. 26. The case of K.B. Shukla vs. U.O.I. (8) relied on by Shri S.N. Sharma, related to the transfer from State Civil Services or other Services under particular Rules challenged in Court. Their Lordships were pleased to hold that the formation of opinion by the Central Government as to existance of exigen-cies of the service requiring appointment by such method is a matter which, in view of the peculiar nature of the function and the language of the provision, has primarily been left to the subjective satisfaction of the Government and the Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by malafides dishonesty, extraneous purpose, or transgression of limits circumscribed by the legislation. 27. The non-petitioners No. 1 and 2 have come with the case that the transfer order was issued because of the administrative exigencies in the interest of the institution. To support that contention reliance has been placed on the principles enunciated in the case of O.P. Royappa vs. State of Tamil Nadu (9). The case related to the transfer of the Member of the Indian Administrative Service in the Cadre of State of Tamil Nadu, posted as Deputy Secretary to the Government, as Deputy Chairman of Planning Commission, a temporary post created for one year in the grade of Chief Secretary to the Government. That caused grievance to the petitioner. Their Lordships in view of the facts and circumstances of the case were pleaded to observe that in the vast multitudious activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of Intellect and specialised experience. Their Lordships were of the opinion that such a transfer would not be arbitrary, so long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a iunior for the higher post, it would be valid and not open to attack under Arts. 14 and 16 of the Corstitution. 28. There is no dispute on the point that administrative exigencies autho-rises the Govt. or department to transfer a person and the transferee should not feel aggrieved on that count. 14 and 16 of the Corstitution. 28. There is no dispute on the point that administrative exigencies autho-rises the Govt. or department to transfer a person and the transferee should not feel aggrieved on that count. This is also well settled that a person may not be permitted to stick long to a particular place or post because it is advantageous or convenient to him. However, if the transfer is not in routine, there must be material to suggest that administrative exigencies were there or the transfer was made in the interest of the institution. If it is not so proved then there may substance in the contention that it was not made in good faith. It may not misunderstood that there is necessity for disclosing the reasons of transfer in every case. What is meant is that if the transfer is made on administrative exigencies, circumstances should give an idea to that effect. It is because of political pressure at the instance or recommendations from the persons, not concerned with the direct administration of a particular department, it would all the more open to scrutiny. 29. In the case of Ramkrishan vs. The District Education Officer. Ku1u (10) various transfers of Govt. Servants were ordered at the recommendation of one M L.A. to the Education Minister and on agreement of the Education Minister to the said recommendations regarding the manner in which public workers or those indulging in politics are interfering in the day to day administration of the State, their Lordships expressed strong dis-approval. It was observed that if such interference is to be allowed, it would only mean that the Government servants should run after those who are taking part in public life and in politices, for getting batter terms of service and a better place for their postings, and should do everything to please them and not to please the department by their ability, honesty and integrity. It was further observed that it need not be emphasised that such interference of outsiders in day to day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. 30. It was further observed that it need not be emphasised that such interference of outsiders in day to day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. 30. In the case on hand, the fact is that the non-petitioner No.3 having remained on the post of Head Master for a long time, enjoying the benefits of special allowance was transferred to other post not less than a year back His being brought back in the same school, on the same post without there being any fault of the petitioner to be removed from there raises a suspicion about the concerned authorities being influenced by outer interference. 31. Emphasizing the point that in the present case there was no reasonable ground for transferring the petitioner from the post he was holding, i e of Head Master, Mr. Mridul, referred to the case of Barhun Chemicals Ltd. vs. Company Law Board (11), wherein their Lordships, in view of the circumstances of the case, were pleased to observe that if there are no grounds at all for passing an order if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation, the order can be challenged. 32. Another case referred to on the point is, The Manager, Govt. Branch Press vs. D.B. Belliappa (12), wherein their Lordships were pleased to hold that where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. 33. There is difference between an order of termination of service and order of transfer. In the former the career of a man comes to an end while the latter does not materially affects the service. However, even in latter case if there are charges of unfair discrimination, the aggrieved party can be expected to know his fault for being made a victim of unfair discrimination by the concerned authorities. In the former the career of a man comes to an end while the latter does not materially affects the service. However, even in latter case if there are charges of unfair discrimination, the aggrieved party can be expected to know his fault for being made a victim of unfair discrimination by the concerned authorities. There may be cases where the aggrieved employee is unable to substantiate the charge of malafides against the concerned authority, still the manner and the circumstance in which it is passed will in itself narrate the story of malafides or at least show of favour to one at the cost of the other. 34. In the case of Smt. S.R. Venkataraman vs. U.O.I. (13) their Lord-ships were pleased to discuss the meaning of the term malice and observed that malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. In that case the matter related to the premature retirement of a public servant and their Lordships referred to the principle enunciated by Lord Esher M R. in the Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras (14) wherein it was observed as under : "If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion." 35. It is necessary to make it clear that cases of compulsory retirement or the matters which bring the career of a person to an end or destroy the service should not be taken at par with the cases of a transfer of an employee from one institution or place to another. All that in such cases is to be seen is whether the act has been done in disregard to the guide lines laid down or in order to place a particular person in advantageous position causing injusticiable loss to the other. All that in such cases is to be seen is whether the act has been done in disregard to the guide lines laid down or in order to place a particular person in advantageous position causing injusticiable loss to the other. Non-petitioner No.l and 2 have taken the plea that the impugned order was passed for administrative exigencies and benefit of the institution, but they were unable to point out and fault with the work of the petitioner for a period of one year he had remained as Head Master of this institution, or any shortcoming in him, making him unfit for that post. There is no material to show that non-petitioner No. 3 was in any way better qualified or a better administrator so as to make it necessary to retransfer him to the same institution, especially when according to the petitioner some irregularities were found in his tenure and those allegations have not been specifically denied by the other side. The authorities referred to by Mr. Sharma regarding the particular qualification required for a particular post and efficiency of the person to hold the same are, therefore, of no help to the non-petitioners. 36. The grievance of the petitioner for putting him to pecuniary loss of Rs. 30/- per month, special allowance for the post of Head Master, may also not be taken lightly. Of course an employee can not claim the allowance as of right but if out of two persons, placed in the same cadre, one is allowed to enjoy this benefit for a long period and the other is deprived of that benefit without any rhyme or reason, that person may have legitimate grievance against the concerned authorities. 37. Mr. Mridul vehemently stressed that the impugned order of transfer is in utter disregard to the standing order No. 4/1370/ (5) /74 dated 2. 5 74 An. 6 That order laid down the guidelines for the appointments of Head Master. It contains that no person would be kept on that post continuously for a period of five years. If a person has worked for such a period, he would be entitled to be posted as such only after his doing teaching work for a period of two years. It contains that no person would be kept on that post continuously for a period of five years. If a person has worked for such a period, he would be entitled to be posted as such only after his doing teaching work for a period of two years. It has also been mentioned that in selection for this post preference would be given to those persons who had not worked on that post previously and thereafter to these who had not worked for five years on that post and then to those who had worked for the full term of five years on that post. 38. It is not disputed that non-petitioner No.3 has worked on the post of Head Master in various institution for a period much more than five years and that even in this institution he had remained posted for almost five years. 39. Mr Udawat, learned Assistant Government Advocate, submitted that this circular is of no help to the petitioner for two reasons. Firstly because it is only an administrative instruction not binding in all cases and, secondly because it stands superseded by subsequent circulars. 40. In the case of Union of India Vs. K.P. Joseph (15) their Lordships have been pleased to observe as under :- "To say that an aadministrative order can never confer any right would be too wide a proposition There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice or audi alterm partem into this area." 41. In the case of Shallendra v. The University of Jodhpur (16), discussing the rule for re-evaluation in the University of Jodhpur, this Court has observed that rules for re-evaluation are administrative in nature and if the University has framed the rules for re-evaluation in exercise of its executive powers, then it is not open to the University to say that it can refuse re-evaluation at its sweet will or to say that it would not abide by the rules for re-evaluation. 42. In the case of Kamlesh Kumar Khatri Vs. The University of Jodhpur (17). the petitioner appellant was an aggrieved candidate being denied the right available to him under the syllabus. 42. In the case of Kamlesh Kumar Khatri Vs. The University of Jodhpur (17). the petitioner appellant was an aggrieved candidate being denied the right available to him under the syllabus. It was therefore, held that any action taken thereunder is justiciable in Court of law and it is open to scrutiny by this Court in exercise of its extra ordinary jurisdiction under Art. 226 of the Constitution. 43. In this view of the matter I am inclined to observe that once the administrative instructions or the executive orders are passed to lay down guide lines for doing a particular act, it would not be open to the State to say that it may or may not follow those guide lines or instructions. True it is that, in certain matters the guide lines 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 scrutiny by courts. 44. To substantiate the second point, that is, the aforesaid Circular being superseded by subsequent circulars, Mr. Udawat placed three circulars, which have been referred in the affidavit filed by B.K. Vyas working as Deputy District Education Officer on the date of the filing of the affidavit. The three circulars are dated 7th May 1981, 3rd June 1982, and 15th April, 1983, published in the magzine Shivira. 45. It is pertinent to note that all these three Circulars relate to the policy of transfer of the employees in Education Department whereas Ann-6 standing order No. 3/74 dated 2-5-74 relates to the posting of Head Master of Govt. Primary Schools. The first of the three circulars referred to by Mr. Udawat the one dated 7.5.81, has superseded all the previous orders relating to transfer of employees of Education Department. It mostly relates to the transfer at the request of the teachers. In that circular it is mentioned that no teacher would be transferred from the post he is holding, before a period of three years. The circular No. 2/83 dated 3.6.82 has also superseded the previous instructions relating to transfers and is almost in the line of the circular dated 7.5.81. It also mostly relates to the transfer of teachers at their request and transfer on promotion. The circular No. 2/83 dated 3.6.82 has also superseded the previous instructions relating to transfers and is almost in the line of the circular dated 7.5.81. It also mostly relates to the transfer of teachers at their request and transfer on promotion. In that circular also it is given that no teacher would ordinarily be transferred before a period of two years from the post he is holding. The third circular dated 5.4.83 supersedes the previous orders dated 3.6.81, 26,4.82 and 27.1.83. This circular was meant to put a restriction on the transfer of teachers and contained along with others the instruction that the teachers could be transferred only once in the session. None of the three circulars referred to above, and relied on by Mr. Udawat, show that the Annexure-6 was superseded and the instructions therein were no more to be followed. Even if for the sake of argument it may be said that there are no guide lines for transfering a person and there is no hurdle for transferring a man within a period of one year or in the middle of the session, still such acts cannot be appreciated especially when the manner in which it is done, raises a suspicion about the fairness of action on the part of the concerned authority. I have no hesitation to say that in the instant case the circumstances clearly indicate that the petitioner was transferred simply to accommodate non-petitioner No. 3. 46. In the case of Dr. (Sm.) Pushpika Chatterjee vs. State of West Bengal (18), the order of transfer of the petitioner to accommodate some one also was held to be malafide and it was observed as under : "The petitioner was transferred with the object of accommodating A at a particular station for undisclosed reasons. The order was not for public interest nor it was for administrative purposes. The order therefore was for collateral purpose and was malafide and could not be sustained. It was a fit case where the order of transfer should be interferred even though no civil or evil consequense would follow from such an order." 47. The case of the present petitioner is also to be seen in the same light. Leaving aside all other points, the petitioner has succeeded in establishing that his premature transfer from a post, causing him pecuniary loss, was made in order to accommodate non-petitioner No.3. The case of the present petitioner is also to be seen in the same light. Leaving aside all other points, the petitioner has succeeded in establishing that his premature transfer from a post, causing him pecuniary loss, was made in order to accommodate non-petitioner No.3. This fact even is sufficient to entitle him to a relief by this Court. 48. In view of the above discussion, the impugned order Annexure-5 dated 18.7.83 qua the petitioner is set aside. 49. Consequently, the writ petition is allowed. In the circumstances of the case, there will be no order as to costs.