Judgment S. B. Sinha, J. 1. This writ petition is directed against a notification dated 31st March, 1987 and as contained in Annexure 1 to the writ petition whereby and whereunder the petitioner was transferred from the post of Subdivisional officer, Irrigation Subdivision No.1 Musabani and posted as Subdivisional Officer distribution Subdivision, Galudih. 2. By the aforementioned notification dated 31st March, 1987, the respondent No.5 has been posted in place of the petitioner. 3. The facts of the case lie in a very narrow compass. 4. The petitioner at all material times was and still is hplding the post of ah Assistant Engineer. He vide a notification dated 23rd December, 1982 was transferred and posted as Assistant Engineer, Drainage and Investigation subdivision at Mahesi in the district of East Champaran. On 17th August, 1984 another notification was issued whereby and whereunder the petitioner was transferred from the aforementioned post and his services were placed under the respondent No.3 for a fresh posting. By a notification dated 17th August, 1984 it was specifically directed that the petitioner should be placed either under works division or non-works division. A copy of the said notification dated 17th august, 1984 is contained in Annexure 2 to the writ petition. According to the petitioner he could not have posted in works division as purported to be done by the notification dated 17th August 1984 in view of the fact that he took charge at Mahesi on 19th April, 1983 and as such he worked in the said post only for a period of 1 years and did not complete the period of three years. 5. It is an admitted fact that under a circular issued by the State of Bihar an Assistant Engineer should be posted against a works post for a period of three years and thereafter he is to be posted against a non-works post for another period of three years. 6. As noticed hereinbefore by reason of the notification as contained in annexure 2 to the writ petition the petitioner was to be given a posting by the chief Engineer and consequent thereto he was posted in the Flood Control subdivision No.3, Galudih by a notification dated 24th November, 1984 which appears to be a non-works post. 6. As noticed hereinbefore by reason of the notification as contained in annexure 2 to the writ petition the petitioner was to be given a posting by the chief Engineer and consequent thereto he was posted in the Flood Control subdivision No.3, Galudih by a notification dated 24th November, 1984 which appears to be a non-works post. The said notification was modified on or about 2nd April, 1985 as a result whereof the petitioner was posted in the Flood control Subdivision No.1 at Galudih which was also a non works post. A copy of the aforementioned notification dated 24th November, 1984 is contained in annexure 3 to the writ petition. 7. As purported to be in terms of the aforementioned Government guidelines that an Assistant Engineer is alternatively to be posted against a works or non-works post on completion of three years and as according to the petitioner he did not complete the period of three years, after he was posted at Galudih, he filed a representation before the respondent No.3 for a mutual transfer by and between him and one Sri Sitakant Jha who was working as Subdivisional Officer, irrigation Subdivision No.1, Musabani, which was a works post. By a notification dated 28th October, 1986 the said representation of the petitioner and Sri Sitakant Jha for mutual transfer was accepted and the petitioner was posted as subdivisional Officer, Irrigation Subdivision No.1 Musabani. The said notification dated 28th October, 1986 is contained in Annexure 4 to the writ petition. 8. The petitioner has further asserted that as the power to transfer an assistant Engineer has been delegated to the Chief Engineer and as such only the chief Engineer can exercise the said power. By a notification dated 27th October, 1986 as contained in Annexure 6 to the writ petition the respondent No.5 was posted in the place of the petitioner on the supposed ground that the said post was vacant. However when he came to join the post it was found that the petitioner had been holding the said post and as such the matter was referred to the chief Engineer by the respondent No.4. The petitioner has further asserted that the aforementioned posting of the respondent No.4 was done on the basis of a political pairvi. In this connection the petitioner has in his writ petition asserted as follows : - "15. The petitioner has further asserted that the aforementioned posting of the respondent No.4 was done on the basis of a political pairvi. In this connection the petitioner has in his writ petition asserted as follows : - "15. That the respondent No.5 from the very beginning started political pairvi for his posting as S. D. O. Overseer in Irrigation Subdivision no.1 at Musabani. The said respondent No.5 gave a direct representation to the Minister, Irrigation Department, Government of Bihar vide his representation dated the 26th August, 1986. Though the representation was given in the name of the Minister, irrigation, Irrigation Department, Government of Bihar, but, curiously, the endorsement was made on the said representation of respondent no.5 by the State Minister, Urban Development Department government of Bihar. The said Minister, Urban Development, department, Government of Bihar, who has got no authority to say anything regarding the transfer and posting of Assistant Engineer of Irrigation Department by his noting in the application of respondent No.5, requested the Hon ble Minister, Irrigation, for posting of respondent No.5, in the Irrigation Subdivision No.1, at Musabani : a copy of the representation of respondent No.5 with the noting of the Hon ble Minister of Urban Development Department, is annexed hereto marked 8 for identification and forms part of this petition.16. That, subsequently, the Hon ble Minister of Irrigation, wrote a letter to the State Minister Urban Development Department, Bihar, that the respondent No.5 has been posted as Overseer S. D. O. in the irrigation Subdivision No.1 at Musabani on the basis of the request of the Hon ble State Minister, Urban Development Department. A copy of the letter of the Hon ble Minister of Irrigation is annexed hereto marked 9 for identification and forms part of this petition.17. That it is stated that it was on the basis of the aforesaid political pairvi of respondent No.5 that the posting of respondent No.5 in the Irrigation Subdivision No.1 Musabani, was made vide the notification dated the 31st March, 1987 (Annexure 1) has been passed by the respondent No.2. " 9. That it is stated that it was on the basis of the aforesaid political pairvi of respondent No.5 that the posting of respondent No.5 in the Irrigation Subdivision No.1 Musabani, was made vide the notification dated the 31st March, 1987 (Annexure 1) has been passed by the respondent No.2. " 9. By an order dated 21-4-1987, a Division Bench of this Court while admitting this writ petition passed the following interim orders : - "pending the final disposal of this application, the petitioner shall not be disturbed from the post that he is holding at present pursuant to the order as mentioned in Annexure 4 dated 28 -10-1986. " 10. On 19-11-1987 an application for vacating the order of ad interim stay was filed on behalf of the respondent No.5. The aforementioned application was put up for hearing on 30th November, 1987 and on the said date it was directed that in the facts and circumstances of this case the main writ petition itself should be finally heard. 11. On 7-3-1988 a counter affidavit was filed on behalf of the respondent no.2. In the said counter affidavit the basic facts, as stated hereinbefore, were not disputed. However it was asserted that before posting of the petitioner by the Chief Engineer by an order dated 27-10-1986, sanction of the Government therefor was not obtained. It has further been asserted that the State of Bihar had already passed the order of transfer of Sri Sitakant Jha and then S. D. O. Subdivision No.1 Musabani to the post of S. D. O. Minor Distribution Division, galudih and the incumbent of that post Sri Ramcharitra Singh was transferred to the post of S. D. O. Subdivision No.1 Musabani. A copy of the said notification is contained in Annexure A to the counter affidavit. The respondent No.2 in the said counter affidavit has also contended that the aforementioned order of posting of the petitioner on 27-10-1986 was in supersessiou on the Government notification aforementioned and therefore the same was bad in law. 12. It has further been asserted that the order of transfer dated 27-10-1986 could not be given effect to as Ramcharitra Singh did not join in his transferred place on 28-10-1986. 12. It has further been asserted that the order of transfer dated 27-10-1986 could not be given effect to as Ramcharitra Singh did not join in his transferred place on 28-10-1986. It appears that a representation was filed by the respondent No.5, Ramcharitra Singh to the effect that the said order of transfer dated 27-10-1986 has not been given effect to and pursuant thereto it appears that comment was called for from the then Chief Engineer who also stated that a mistake had been committed, and thereafter the impugned order was passed. 13. This case was taken up for hearing on 17-3-1988 but the same was adjourned as the State wanted to file a supplementary counter affidavit. The state has since filed a supplementary counter affidavit on 21-3-1988. In the said supplementary counter affidavit the allegations of mala fide made on behalf of the petitioner have been denied and it has further been stated that the impugned order was passed only to give effect to the notification of the State of Bihar dated 27-10-1986. A supplementary counter affidavit has also been filed on behalf of the respondent No.5 wherein it was stated that the application for modifying the order of stay should be treated as a counter affidavit. 14. The learned counsel appearing on behalf of the petitioner has raised two questions : - Firstly he submitted that the impugned order having been passed by the joint Secretary, the same is bad in law as it does not satisfy the requisites contained in Article 166 of the Constitution of India as therein it was not mentioned that the same was being issued under the orders of the Governor. 15. The learned counsel for the respondents on the other hand drew my attention to the notification dated 25th January, 1952 whereby and whereunder the governor of Bihar in exercise of its power conferred, upon him under clause (2)of Article 166 of the Constitution made a rule ; by reason whereof any Secretary joint Secretary, Deputy Secretary, Additional Secretary, Assistant Secretary or budget Officer could sign the notification issued by an order of the Governor of bihar and the same would be treated to be duly authenticated. In the said counter affidavit filed on behalf of the State of Bihar it has further been stated that in the notification as contained in Anuexure 1 to the writ petition by a sheer in advertance the words by the order of the Governor were left out. In the said counter affidavit a copy of the original draft has been annexed and marked with the letter c to the said supplementary counter affidavit. 16. In view of the facts mentioned hereinbefore there is absolutely no doubt that the Joint Secretary did not pass the impugned order in his individual capacity but merely authenticated the same. It is further evident from Annexure c to the supplementary counter affidavit filed on behalf of the State that the words by the order of the Governor were left out by mistake. 17. In this view of the matter, in my opinion, the first contention of the learned counsel for the petitioner does not have any substance and must be rejected. 18. Mr. Sudhansu Jyoti Mukhopadhyaya thereafter contended that the impugned order dated 31-3-1987 was passed mala fide as the same was done on the basis of political pairvi made by the respondent No.5. Learned counsel in this connection has relied upon a Division Bench decision of this Court in abdul Muttalib V/s. State of Bihar, reported in 1985 PLJR 931. 19. It is now well known by various decisions of the Supreme Court as also of the High Court that a mala fide exercise of power is no exercise of power and the same applies to an order of transfer also. Reference in this connection may be made to Dr. Smt. Pushpika Chattarjee V/s. State of West Bengal and others reported in 78 Calcutta Weekly Notes 608 : 1972 SLR 900. Reference in this connection may be made to Dr. Smt. Pushpika Chattarjee V/s. State of West Bengal and others reported in 78 Calcutta Weekly Notes 608 : 1972 SLR 900. This Court in the aforementioned decision of Abdul Muttalib (supra) held as follows : - "from the admitted facts of the present case it is apparent that the m. L. A. of the arrea even before the petitioner had joined the post, question, addressed a letter to the Chief Minister requesting him to transfer respondent No.4 from Ekma and post him as Block development Officer, Mairwa I can appreciate that a representative of the people can complaint about an officer who has been posted in his locality, but can he even suggest the name of the officer who should be posted in his locality In my view, the answer is in negative. In the instant case admittedly the State has yielded to that request and the petitioner is affected by that. Learned counsel for the State could not place any material although the case was adjourned on different dates to show even in a prima facie manner that the petitioner has been transferred to accommodate respondent no.4, at the instant of the M. L. A. aforesaid. On behalf of respondent. No.4 also nothing could be pointed out to controvert the assertions made on behalf of the petitioner. " 20. From a perusal of the writ petition and the counter affidavits filed on behalf of the State and the respondent No.5 the following facts emerge. On 26-8-1986, the respondent No.5 made a representation before the Minister of Irrigation Department for his posting at Irrigation Subdivision Galudib (Annexure 8), the Minister Urban Development who represents the constituency of respondent No.5 evidently made a pairvi to the Minister of irrigation for posting the petitioner in the said post on 28-8-1986 itself. The said representation with the remarks of Minister, Urban Development was placed before the Minister of irrigation on 29-8-1986. 21. By reason of a letter dated 21-10-1986 as contained in Annexure 9 to the writ petiti9n the Minister of Irrigation Department intimated to the Minister of Urban Development Department that his requests have been acceded to. The said representation with the remarks of Minister, Urban Development was placed before the Minister of irrigation on 29-8-1986. 21. By reason of a letter dated 21-10-1986 as contained in Annexure 9 to the writ petiti9n the Minister of Irrigation Department intimated to the Minister of Urban Development Department that his requests have been acceded to. It is admitted that on the basis of the aforementioned order passed by the Minister of irrigation Department the impugned order dated 27-10-1986, as contained in annexure 6 to the writ petition has been issued in this view of the matter the contention raised on behalf of the State of bihar or for that matter the respondent No.5 to the effect that the. impugned order dated 31-3-1987, as contained in Annexure 1 to the writ petition was issued only to give effect to the aforementioned order dated 27-10-1986, as contained in annexure 6 to the writ petition cannot be accepted. 22. Plainly enough the matter relating to transfer of the respondent No.5 in the place of petitioner started rolling on 26-8-1986 i. e. , much before the order dated 27-10-1986 as contained in Annexure 6 to the writ petition was passed. 23. From a bare perusal of the order dated 21-10-1986 as contained in annexure 9 to the writ petition it appears that the same was passed on the recommendations made by the Minister of the Urban Development Department and not on the basis of any independent application of mind by the Minister of the Irrigation Department. The Minister of Urban Development Department had nothing to do with the transfer of the petitioner or the respondent No.5. He had, therefore, no business to recommend the case of the respondent No.5 before the Minister of the Irrigation Department. In this view of the matter the impugned order must be held to be bad in law. Reference in this connection may be made to udayappan V/s. Government of Tamil Nadu, reported in 1983 vol.1 LLJ 170 wherein it has been held as follows : "if a procedure, which is contrary to rules framed is adopted it is needless to state that there has been a transgression of the ordained procedure which has to be scrupulously followed. Reference in this connection may be made to udayappan V/s. Government of Tamil Nadu, reported in 1983 vol.1 LLJ 170 wherein it has been held as follows : "if a procedure, which is contrary to rules framed is adopted it is needless to state that there has been a transgression of the ordained procedure which has to be scrupulously followed. Not only an omission to follow but a deviation from the rules would also result in illegality being committed while taking disciplinary proceedings when the opinion of the Service Commission alone has to be obtained under Regulation 18 (1) of the 1954 Regulations, it would not be open to the respondent to consult any other form under any circumstances unless the rules enable such a consultation. The impugned order is vitiated by taking into account the recommendation of an authority, which has not been contemplated under the rules. Whatever be the convention, it cannot override the Rules framed under Article 309 of the Constitution. " 24. Although a person does not have a right to a particular post and transfer is merely an incident of service but it is well known by various decision that even such a power has to be exercised fairly and reasonably and not on any extreneous consideration or for an unauthorised purposes 25. This Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitutions of India is loathe to interfere with an order of transfer when the same is made in administrative exigencies but when such order of transfer is tainted with malice or has been passed on the basis of the reccommendations of an authority who is not empowered therefor, it must be held that the same would be vitiated in law. Reference in this connection may be made to Har nandan Singh V/s. State of West Bengal and others reported in 1997 LIC 1477. 26. In vew of the facts established in this case, in my opinion, the decision of the Division Bench in Abdul Muttalibs case applies in all fours to the facts of the present case. 27. In this view of the matter the impugned order as contained in annexure 6 to the writ petition cannot be sustained and is hereby quashed and this petition is allowed. 28. 27. In this view of the matter the impugned order as contained in annexure 6 to the writ petition cannot be sustained and is hereby quashed and this petition is allowed. 28. However, it will be open to the respondents to pass a fresh order of transfer of the petitioner vis-a-vis respondent No.5 in accordance with law. Petition allowed.