JUDGMENT 1. 1. This petition involves a challenge of the order of transfer dated 3.10.88 issued by the Director, Sheep and Wool, Rajasthan, Jaipur. 2. The facts of the case are that the petitioner joined Government service as Stock Assistant in the year 1964 in the Sheep and Wool Department. He was initially posted at Laxmangarh, District Alwar. In December 1978 he was posted at the Sheep and Wool Extension Centre, Jhunjhunu. By an order dated 17.1.80 he was transferred from Jhunjhunu to Sheep and Wool Extension Centre, Ghatol (Banswara). The petitioner joined at Ghatol in pursuance of the order dated 17.1.80. By an order dated 18.8.88, he was transferred from Ghatol (Banswara) to Sikar vice Shri Ramdev Singh Sunda, respondent No. 2, who had remained posted at Sikar for about 15 years. The petitioner was relieved by the Sheep and Wool Extension Officer, Ghatol (Banswara) on 8.9.88 for the purpose of joining at Sikar. He reported for duty at Sikar on 11.9.88. He was paid Travelling Allowance and Dearness Allowance in respect of order dated 18.8.88. However, even before expiry of a period of one month of his joining at Sikar, the Director, Sheep and Wool issued order dated 3.10.88, by which the petitioner has again been transferred to Sheep and Wool Extension Centre, Ghatol (Banswara). This has been done by cancelling the order of transfer dated 18.8.88, whereby respondent No. 2 had been transferred to Ghatol (Banswara). 3. The petitioner's case is that his home town is Srimadhopur which is at a distance of 50 KM from Sikar. He has old mother of 75 years. He had been making representations for his posting at a place near his home town but all his requests went in vain. He was transferred on 18.8.88 by the Director, Sheep and Wool on his own. The respondent No.2 had remained posted at Sikar for 15 years and within less than two months of his transfer, he could manage his posting back to Sikar. He has state that the order dated 3.10.1988 has been passed at the instance of respondent No. 3, through whom, respondent No. 2 had approached respondent No. 4 for cancellati n of the order of his transfer to Ghatol. The petitioner has alleged that the power of transfer has been exercised arbitrarily, capriciously and unreasonably. The order of transfer has been passed for an extraneous considerations. The petitioner has alleged that the power of transfer has been exercised arbitrarily, capriciously and unreasonably. The order of transfer has been passed for an extraneous considerations. There is no administrative exigency for passing the order dated 3.10.88 The petitioner had remained posted at Ghatol (Banswara) for over 8 years before being transferred to Sikar vide order dated 18.8.88. The fact that the order dated 3.10.88 has been issued within a period of less than 2 months and the order dated 18.8.88 has been cancelled goes to show that the power of transfer has been exercised only for the purpose of accommodating respondent No.2 at Sikar without any record to public interest or the interest of the administration. 4. In reply to the Writ Petition, the respondent No.1 has stated that the petitioner was transferred from Jhunjhunu to Banswara for administrative exigencies. The petitioner's transfer vide order dated 18.8.88 from Ghatol (Banswara) to Sikar has been admitted. It has also been admitted that he joined at Sikar on 8.9.88 and that he was paid travelling allowance and dearness allowance. It has been sated that while issuing the order dated 18.8.88, the respondent No.1 had accepted the request of the petitioner, who was resident of Sikar. It has then been stated that again due to administrative reasons the petitioner was transferred to Ghatol (Banswara) and that there is no malafide in passing that order of transfer. The respondent No.1 has denied, for want of knowledge, the allegation made by the petitioner that order dated 3.10.88 has been passed at the instance of the local MLA through whom respondent No.2 approached the respondent No.4. It has been stated that there is no information with the respondent No.1 that transfer order was passed at the instance of the M.L.A. and on the desire of Shri Mangi Lal Arya. The order was passed in the administrative capacity and due to the administrative exigency. 5. A separate reply has been filed by the respondent No.4 In that reply the respondent No.4 has either offered no comments or has denied the averments for want of Knowledge. He has however, stated that the State Government is transferring the employees only due to administrative exigency and that the order dated 3.10.88 was passed in the administrative capacity and due to administrative exigencies and that there was no mala fide on his part. He has however, stated that the State Government is transferring the employees only due to administrative exigency and that the order dated 3.10.88 was passed in the administrative capacity and due to administrative exigencies and that there was no mala fide on his part. This reply is strangely supported by an affidavit of Shri S.C. Vijay, who was posted as Statistical Officer, Sheep and Wool Department, Rajasthan, Jaipur. Affidavit of respondent No. 4 Shri Mangi Lal Arya has not been filed in support of the reply. 6. The only question which arises for consideration is as to whether the order dated 3.10.88 has been passed for administrative reasons, in public interest, in the interest of service or it is an order of transfer passed with oblique motive or for extraneous considerations. While the learned Counsel for the petitioner contends that impugned order of transfer is because of the abuse of power and misuse of the office by respondents No. 3 and 4. Learned Counsel for the respondents No. 2 and 4 have argued that the power of transfer is a discretionary power vesting with the competent authorities and the Court cannot interfere with the exercise of the power of transfer. They argued that the respondent No.3 was a Member of Legislative Assembly and the respondent No.4 was holding Office of the Minister. They had a right to send desire in the interest of public and there is no justification for this Court to interfere with the exercise of discretion by public representatives. 7. Professor H.W.R. Wade in his work of Administrative Law (Sixth Edition) from lucidly brought about the distinction between powers of public authorities and those of private persons and has then stated : ".......whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use for the public good. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law : it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities : it applies no less to ministers of the Crown. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law : it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities : it applies no less to ministers of the Crown. Nor is it confined to the sphere of administration : it operate wherever discretion is given for some public purpose, for example where a judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law. For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. the question which has to be asked is what is the scope o judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere." 8. In Padfield v. Minister of Agriculture, Fisheries and Food, (1968) AC 997, the House of Lords rejected the notion of unfettered discretion of the Minister under the provisions of Agriculture Marketing Act,1958. Lord Reid expressly rejected the theory of unfettered discretion and observed : "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court." 9. Lord Upjohn said that the minister's stated reasons showed a complete misapprehension of his duties, and were all bad in law. Lord Upjohn said that the minister's stated reasons showed a complete misapprehension of his duties, and were all bad in law. The scarcely veiled allusion to fear of parliamentary trouble was, in particular, a political reason which was quite extraneous and inadmissible. One of the fundamental matters confounding the minister's attitude was his claim to 'unfettered' discretion : "First, the adjective nowhere appears in section 19 and is an unauthorised gloss by the Minister. Secondly, even if the section did contain that adjective I doubt if it would make any difference in law to his powers, save to emphasis what he has already, namely that acting lawfully he has a power of decision which cannot be controlled by the courts; it is unfettered. But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjective." 10. In Breen v. Amalvamated Engineering Union, 1971 (2) QB 175, Lord Denning Mr. observed : "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 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. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law. 11. In our Constitutional set up unlike action of private party, every action of the State or a public body must be informed with public interest and must be reasonable. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. With the diversification of State activity in a Welfare State requiring the State to discharge its wide ranging functions even through its several instrumentalities, which requires entering into contracts also, it would be unreal and not pragmatic, apart from being unjustified to exclude contractual matters from the sphere of State actions required to be non-arbitrary and justified on the touchstone of Article 14. 12. In Kumari Shrilekha Vidyarthi and others v. State of U.P. and others, 1991 (1) SCC 212 , the Supreme Court has after making reference to which of the earlier decisions in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 4 SCC 1 : Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 and Mahabir Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752 , their Lordships of the Supreme Court observed that ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element is present also in contractual matters. The Court further observed that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the reasonableness, it would be unconstitutional. 13. In Col. A. S. Sangwan v. Union of India, 1980 Supp. The Court further observed that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the reasonableness, it would be unconstitutional. 13. In Col. A. S. Sangwan v. Union of India, 1980 Supp. SCC 559, while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of State, has long been settled. 14. In S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427 , Ramaswami J. speaking for the Court said : "In this context it is important to emphasise that 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 Government by rule of law, discretion, when conferred upon executive authorities, must be confined 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. (See Dicey - "Law of the Constitution" - Tenth Edn. Introduction ex). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich, (1951) 342 US 98 , "when it has freed man from the unlimited discretion of some ruler.....Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule, not by humour: It must not be arbitrary, vague and fanciful." 15. In Thanaram v. State of Rajasthan, 1973 RLW 621, Tyagi J., as he then was observed : "We cannot forget that in a State wedded to democracy "rule of law" acts as a constant deterrent for temptation against the misuse of the power conferred by the Legislature on the Government which functions as a trustee to safeguard the rights and the interests of the people. The "rule of law" always operates through the instrumentality of the court and ensures that the persons in power do not, while executing the approved policies of the legislature, act arbitrarily injuring the individual in life, liberty, property or reputation. The expression "rule of law" primarily implies that the life, liberty, property and reputation of the people shall not be damaged or impaired except under the authority of the law, that is to say, for a purpose stated in the law and the manner so stated. Rule of law is not a mere mechanical rule just requiring compliance with statute. It is much more; it is a principle. Thus, if the law laid down by the Parliament itself authorises that the Government or any official thereof may act in a manner stated therein, then he has not only to follow the procedure laid down in the statute but has to follow the purpose for which such a law has been enacted by the legislature. It is in this sense that modern writers have said that an act may be perfectly legal and yet it may be contrary to rule of law the principle. This phrase has been derived from the Latin expression La Legalite which connotes Government on principles of law, not men. The implication of this is that society is really ruled or governed by law; enabling the common man to foresee the actions of the administration. This phrase has been derived from the Latin expression La Legalite which connotes Government on principles of law, not men. The implication of this is that society is really ruled or governed by law; enabling the common man to foresee the actions of the administration. There is no doubt that the administration always exercises some degree of discretion, but the area of discretion left with the administrator should be delimited by certain clear cut norms so as to exclude the exercise for arbitrary power. Arbitrary or tyrannical power is thus foreign to the conception of "the rule of law". It conceives justice as a supreme human good and for any unjustified infringement of a liberty of man the liability of a mister of State is no whit different from that of another inferior authority." 16. Once it is clear that every action of the State or a Public Body is amenable to judicial scrutiny, further question which requires examination is as to what is the scope of interference by the Court in the matter of transfer of public servants ? 17. Transfer of an employee from one place to another is primarily a prerogative of the employer. Within the cadre an employee is liable to serve the employer at any place, which falls within the jurisdiction of the employer. The State Government and its Officers are fully empowered to post an employee at a particular place, having regard to the requirement of service, the interest of administration and also the public interest. The judgment of the employer regarding the place of posting of an employee in the context of the interest of service, the interest of administration act is ordinarily not interfered with by a Court of law. At the same time, it cannot be said that exercise of the power of transfer by the employer is always immune from judicial scrutiny. The wide and pervasive scope of judicial review of administrative action takes within its ambit over administrative action of the Government and public authorities and therefore, the Court is not only entitled but is duty bound to see that the administrative authorities act within the parameters of the law and the constitutional provisions and that the power vested in the administrative authorities are not misused or abused. Use of power for a purpose other than the one for which it is conferred on the authority is appropriately termed as, "abuse of the power or mala fide exercise of the power." Therefore, even in case of transfer of a Government Servant or an employee of a public body, if the Court finds that the power has been used for a purpose other than the public interest, interest of service or the interest of administration, the Court will interfere with the exercise of power of transfer. The concept of absolute discretion, immunised from judicial scrutiny is foreign to the jurisprudence of this country. 18. The decisions of the High Courts as well as of the Apex Court on the question of scope and extent of jurisdiction of the Court to interfere with an order of transfer passed by Government or a public body show that the Courts are slow in interfering with the orders of transfer. The Courts have recognised wide latitude in the exercise of discretion which is available with the administrative authorities while passing the order of transfer. The Court interferes with the order of transfer only when it is found that the transfer has been made in contravention of the provisions of the Constitution or in statutory provision or where it is found that the power of transfer has been exercised arbitrarily or with malice. Exercise of power of transfer for reasons having no relation with the element of public interest, the interest of administration or the interest of service has many a times been considered to be a mala fide exercise of powers. Where the power of transfer has been exercised arbitrarily or with malice, will have to be judged in the facts an circumstances of the each given case. No general principle of uniform application can be laid down for determining the scope of the jurisdiction of the Court to interfere with the order of transfer. 19. Where the power of transfer has been exercised arbitrarily or with malice, will have to be judged in the facts an circumstances of the each given case. No general principle of uniform application can be laid down for determining the scope of the jurisdiction of the Court to interfere with the order of transfer. 19. One of the principles which has been recognised by the Courts is that when an order or transfer is challenged by a public servant on the ground that it has been made de hors the public interest of the interest of service or the interest of administration or where there is a serious allegation of mala fide exercise of power and the Court prima facie feels satisfied about such allegation of that, issues notice to the respondents to justify the order of transfer, it is the bounden duty of the transferring authority to place full material before the court in order to justify the order of transfer as one having been made in the interest of service or public interest or the interest of administration. The bald assertion by the transferring authority that the order has been issued in public interest or for administrative exigency, is not sufficient to discharge the burden which is placed on the transferring authority to show that the order of transfer has really been made in public interest or for good reasons, if the transferring authority fails to place such material before the Court, that will be a relevant factor which will have to be considered by the Court for arriving at a conclusion that the power of transfer has been exercised with the oblique motives or for extraneous reasons or that the power of transfer has been misused or abused. 20. In a democratic polity, representatives of the people at the lowest ladder and in the highest officials have right to see that public servants who are responsive to the acts of the people and who can contribute to the development of their area, constituency or the State, should be posted at places where they can deliver the goods. Recommendations made by public representatives or the desires expressed by those in power cannot ordinarily be termed as malicious, in case such recommendations had been made or desire expressed in the interest of public or in the interest of service. Recommendations made by public representatives or the desires expressed by those in power cannot ordinarily be termed as malicious, in case such recommendations had been made or desire expressed in the interest of public or in the interest of service. Even in a case where a public representative recommends adjustment of an employee at a place, per se such recommendations cannot result in vitiating the order of transfer. However, if there is total absence of public interest, the interest of administration etc., the recommendation made or desire expressed by public representatives for transfer of a particular employee will be viewed adversely by the Court. Public representatives who represent the people are in reality trustees of the peoples confidence and their duty to act in public interest is more onerous than other individuals including the Government officers. Accountability of the public representatives is to the public and they must not only act but must demonstrate that their actions are in public interest. If the element of the public interest is absent in their activities, their actions will have to be categorised as arbitrary, unreasonable and unjustified. 21. So far as the present case is concerned, the facts which have come on record of the present case show that : (i) the petitioner is a low paid employee holding post of Live Stock Assistant in the Sheep and Wool Department, Government of Rajasthan. (ii) the petitioner had remained posted at Ghatol (Banswara) for a period of over 8 years before the passing of the order dated 18.8.88 for his posting at Sikar. (iii) the petitioner had joined on September 8, 1988 at Sikar in compliance of the order dated 18.8.88. (iv) the respondent No.2 had remained posted at Sikar for over 15 years before passing of order dated 18.8.88. (v) although the respondent No.4 has pleaded administrative exigency as the basis of order dated 3.10.88, no material has been placed on record to show as to what particular administrative exigency compelled the respondent No. 1 to pass the order dated 3.10.88 resulting in cancellation of the earlier order dated 18.8.88 within a span of less than two months. (vi) cancellation of order dated 18.8.88 after it has been made effective by joining of the petitioner at Sikar has not been supported by any logic or rationality. (vi) cancellation of order dated 18.8.88 after it has been made effective by joining of the petitioner at Sikar has not been supported by any logic or rationality. (vii) the petitioner has made a clear allegation of the transfer having been effected at the behest of respondent No. 3 through whom respondent No. 2 had approached the respondent No. 4. There is no denial of this allegation. The respondent No. 4 has chosen to file a counter but without any affidavit of his own. In that also there is no denial of the allegation of passing of order dated 3.10.88 at the behest of respondent No. 3. It has neither been pleaded nor established that the respondents No. 3 and 4 had made recommendation for cancellation of transfer of respondent No. 2 for any reason having relation to public interest or interest of service. How public interest or interest of administration would be served by keeping respondent No. 2 at Sikar, has neither pleaded nor proved. (viii) No material has been placed on record to show as to why retention of respondent No. 2 at Sikar was necessary even though he had remained posted for 15 years passed what extraordinary circumstances warranted cancellation of his order of transfer dated 18.8.88. 22. Complete failure on the part of the respondent No.1 to place any material before the Court to justify the extraordinary step of passing of order dated 3.10.88 within one month and 15 days of the passing of the earlier order dated 18.8.88 coupled with the fact that the cancellation of the order dated 3.10.88 having been brought about at the intervention of respondent No.3 through whom respondent No. 2 had approached the respondent No.4 and the fact that the respondent No. 2 had already remained posted at Sikar for 15 years before his transfer vide order dated 18.8.88, leads to a clear conclusion that the impugned order dated 3.10.88 had not been issued either in the interest of service or in the interest of administration but the power of transfer has been exercised for reasons which are wholly extraneous to the element of public interest or in the interest of administration. I am conscious of the fact that this Court has in Bhagirath Mal v. State of Rajasthan, 1990 (2) RLR 561 held that mere desire of the Minister regarding posting of a particular person at a particular place is not a case of bias and that the public representatives have right to give advice or express desire in the matter of transfer and posting of a public servant but there can be no manner of doubt that if the power of transfer has been exercised at the intervention of the public representatives, who has not shown to have acted for achieving goal of public interest or the interest of the development of the area, such interference may be held to be arbitrary and malice. In Bhagirath Mal's case the court has observed : "It cannot be laid down as a rule that in every case of transfer on the desire of Minister or the Member of the Legislature or the Parliament, it must be held that the transfer is vitiated by malice in law. The malice in law cannot be presumed to be existing in such cases. Only when the blatant misuse of power, or violation of law is established then the Court would interfere with the order of transfer." 23. The present case is one in which it must be held that the order dated 3.10.88 suffers from arbitrariness and it is a clear example of abuse of their position and authority by respondents No. 3 and 4. 24. The petitioner is a low paid employee and has been compelled to seek protection of this Court on account of arbitrary action of the respondents. This has been done with the sole object of accommodating respondent No. 2 at Sikar, who had already served there for 15 years. The retention of respondent No. 2 at Sikar has not been shown to be a measure of public interest. Therefore, it is fit case in which the petitioner deserves to be compensated. 25. The writ petition is allowed. The order dated 3.10.88 in so far as it relates to the petitioner shall get cost of Rs. 2000/- which shall be paid by respondents No.3 and 4 in equal share. 26. Before parting with the case I would like to observe that the officers of a department of the Government should apply their mind before filing affidavit in the Court of law. 2000/- which shall be paid by respondents No.3 and 4 in equal share. 26. Before parting with the case I would like to observe that the officers of a department of the Government should apply their mind before filing affidavit in the Court of law. In this case affidavit has been filed by Shri S. C. Vijay in support of the reply of respondent No.4 He was not entitled to file affidavit as Officer Incharge in support of reply of respondent No.4 who was arrayed as respondent by name. Affidavit ought to have been filed by respondent No. 4 himself.Petition allowed with costs. *******