Honble V.K. SINGHAL, J.—The petitioner was appointed on the post of Medical Officer and was posted at Government Hospital Banta (Pali) vide order dated 21-3-1991, which was subsequently amended and he was posted at Government Dispensary, Khairthal vide order dated April 1, 1991. The petitioner reported for duty on April 2, 1991 at Alwar and by an order dated April 5, 1991 the non-petitioner was declared surplus from Khairthal and was ordered to be posted at Government Dispensary Sakat (Alwar) against a vacant post. Non-petitioner Dr. Dhanesh Kumar was already working at Government Dispensary Khairthal. The Chief Medical & Health Officer, Alwar, issued an order on 6.4.1991 and directed the petitioner to assume charge at Khairthal. The non-petitioner went on leave on that very day and filed a suit in the court of learned Munsiff & Judicial Magistrate Kishangarh-bas for declaration and permanent injunction, to declare the orders dated 1.4.1991 and 5.4.1991 as rull and void, and by permanent injunction not to relieve the non-petitioner from Khairthal. An application under Order 39 Rules 1 and 2 C.P.C. was also filed praying that he was not relieved on the date of filing of the suit and hence not be relieved till the disposal of the suit. Reply to this application was submitted by the petitioner denying the averments including submission that the non-petitioner has already been relieved on 6.4.1991. The said application was decided on 27.4. 1991 and a mandatory injunction was granted that the non-petitioner should not be relieved from Khairthal till the disposal of the suit and the respondents should not create any obstruction in his working and in releasing his salary and other benefits. Against this order, an appeal was preferred to the learned Additional District Judge, Kishangarh-bas and the said appeal was dismissed on 5.10.1991 on the ground that the petitioner has no right to file the appeal besides merit. The appeal should have been filed by the concerned department. 2. This revision petition has been filed challenging the orders of the courts below that they have committed serious material irregularities and have acted contrary to the evidence on record and the judgments suffer from the errors apparent on the face of record. 3. The appeal should have been filed by the concerned department. 2. This revision petition has been filed challenging the orders of the courts below that they have committed serious material irregularities and have acted contrary to the evidence on record and the judgments suffer from the errors apparent on the face of record. 3. Learned Munsiff & Judicial Magistrate while deciding the application under Order 39 Rules 1 and 2 C.P.C. after considering the facts, has held that there is a prima facie case in favour of the plaintiff-non-petitioner since in accordance with the policy of the Government dated 28.06.1990. It has been mentioned that no Government Servant shall ordinarily be transferred unless he has been for two years at a particular place and since the non-petitioner has not completed the period of two years, he could not be transferred. It has further been observed that the initial appointment of the petitioner was for rural area for a period of 6 months and, therefore, his transfer to Khairthal, which is an urban area is not proper, more particularly when there was no vacant post at Khairthal. It has also been mentioned that according to the Election Commission, there was restriction on the transfers and inspite of the said restriction, the non-petitioner was transferred. The transfer of the non-petitioner was held not bona fide. It was further observed that the non-petitioner was not relieved on 6.4.1991 and a Gazetted Officer can be considered to be relieved only when he has given charge to some other person and on these basis it has been held that there is prima facie case in favour of the non-petitioner. 4. On the point of balance of convenience, it was held that the transfer of the non-petitioner in the mid session would affect the education of the children who have to appear in their examinations and this would cause inconvenience to the non-petitioner. The petitioner has been posted for the first time and if he is posted to any other place, it would not cause any inconvenience to him. 5. On the point of irreparable loss, it was held that the petitioner could be posted at any place and should be posted in the rural area and no loss would be sufferred by the petitioner if he is posted in the rural area. 5. On the point of irreparable loss, it was held that the petitioner could be posted at any place and should be posted in the rural area and no loss would be sufferred by the petitioner if he is posted in the rural area. The fact that the children of the plaintiff/non-petitioner are studying and the transfer would create disturbance in their studies was also kept in view. 6. Learned Additional District & Sessions Judge, Kishangarh-bas, after taking into consideration the various facts came to the conclusion that the State Government, Director, Medical & Health Services have not filed any appeal against the order passed under Order 39 Rules 1 and 2 C.P.C. It was further observed that the defendant-petitioner should have been posted in the rural area and the order dated 1.4.1991 is not in public interest and has been passed keeping in view the convenience of the defendant-petitioner since his wife was posted at Khairthal. It was observed that to keep the husband and wife at one place is not always possible and in these circumstances, the Government should post the defendant-petitioner in rural area for a period of six months. The transfer of the plaintiff/non-petitioner in a period lesser than 2 years will affect the public of Khairthal, who are influenced by him. 7. The submission of Mr. Ashok Gaur, on behalf of the petitioner is that no one has a right to be posted at any particular place and it is for the employer to determine as to on which place an employee should be posted. The guide-lines dated 28.6.1990 are only executive instructions and have no binding force. It has further been submitted that the trial court has acted with material irregularities in observing that the plaintiff was not relieved on April 6, 1991 and that the ban on transfers by the Election Commission was only in respect of those employees who were in the election duty. It has further been submitted that a wrong statement was made by the plaintiff-non-petitioner that he has school going children and their education will be disturbed. An objection was taken before the trial court, but on this objection no decision was given. Both the courts have acted with material irregularities. It has further been submitted that a wrong statement was made by the plaintiff-non-petitioner that he has school going children and their education will be disturbed. An objection was taken before the trial court, but on this objection no decision was given. Both the courts have acted with material irregularities. It has also been submitted that the learned Additional District Judge has wrongly held that in the absence of appeal by the State Government or the Director, Medical & Health Services who are affected by the transfer, the appeal preferred by the petitioner was not maintainable. 8. The submission of Mr. Keshote is that this court should not interfere in the revisional jurisdiction even if the order passed by the trial court is not in accordance with law. 9. I have considered the arguments of both the learned counsel. The Hon-ble Supreme Court in Shilpi Bose V State of Bihar (1) has observed as under: "The Courts should not interfere with transfer orders with are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department." 10. From the judgment given by the Apex Court, it is evident that the executive instructions even if were not followed, the court should not interfere with the order of transfer. The instructions dated 28-6-1990 are executive instructions, and, therefore, have no force of law. It is the discretion of the employer to transfer an employee from one place to another and even if the transfer is made before the expiry of the period of two years in respect of one particular place, it cannot be said that the said order is not bona fide for that reason. The executive instructions, therefore, should not have been considered as having the force of law, and no mandatory injunction could have been granted for that reason. 11. The executive instructions, therefore, should not have been considered as having the force of law, and no mandatory injunction could have been granted for that reason. 11. In the present case, the Chief Medical Health Officer issued an order on 5.4.1991, wherein the plaintiff was declared surplus from Khairthal and was posted at Government Dispensary Sakat (Alwar) against a vacant post and by order dated 6.4.1991 the petitioner was directed to assume the charge. The decision given by the trial court is that a Gazetted Officer cannot be considered to have given the charge unless he has handed over the charge to some other officer. The approach of the trial court is absolutely not in accordance with law. It is not necessary that charge has to be given by a Government Officer in all cases. The charge can be assumed and in the present case, the petitioner had actually assumed the charge on 6.4.1991. Even to say that the plaintiff/non-petitioner had proceeded on leave on 6.04.1991, therefore, he had no knowledge that he was relieved, cannot be considered in accordance with law. When on a particular post, the charge is assumed, the officer who was working would be deemed to have been relieved. A legal presumption would also be raised that he had the knowledge of it and only for that reason he had proceeded on leave. In these facts and circumstances when the plaintiff was already relieved of his duty, therefore, the order passed under Order 39 Rules 1 and 2 C.P.C. is with material irregularity. 12. So far as the question of imposing ban by the Election Commission is concerned, the learned trial court has not considered this objection of the defendant that the said ban is not applicable for the medical officers since they are not in the election duty. Even otherwise, I am of the view that even if there is a complete ban and a transfer is made then the person who has been transferred can approach the authorities who has imposed the complete ban or at the most, the order of transfer would be ineffective during the period the ban is imposed but for that reason the order passed by the Government for transfer of an employee cannot be considered to be illegal. 13. 13. The objection raised by the defendant-petitioner that the plaintiff had no school going children, was not considered and the judgement of the learned trial court has been influenced by this fact while holding that the plaintiff has balance of convenience and would suffer irreparable loss. If a fact which is non-existent or against the record or on which there is on finding, is taken into consideration and the mind of the Judge is influenced then the order will vitiate for that reason alone. May be that there are other reasons, but the single reason that the objection raised by the defendant was not considered and decided and a contrary fact was kept in view, is sufficient to hold that the finding given on balance of convenience and irreparable loss is vitiated. 14. The last submission Mr. Keshote is that, the High Court should not interfere even if the order is right or wrong or in accordance with law or not unless the jurisdiction has been exercised illegally or with material irregularity. (AIR 1972 SC 76 (2). 15. The submission of Mr. Keshote is that in the matter of grant of injunction, for which the trial court has exercised its discretion, the appellate court should not interfere. This submission of Mr. Keshote is, where the exercise of jurisdiction is not with material irregularity or illegal or there is any mistake apparent on the face of record and therefore, the judgment relied in the case of Smt. Rama Devi Vs. Sanganer Cooperative Housing Society Ltd. (3) has no application. 16. The observation of the trial court that the transfer was not bona fide and was in the interest of one individual is also not borne out from the record, nor it could be considered to be a case of victimisation, inasmuch as no mala fides have been alleged and simply because some other medical officer has been posted at a place where the plaintiff was working, it could not be presumed that it was for giving benefit to an individual and is not for administrative exigencies. 17. Learned Appellate Authority has also ignored these vital points and has wrongly come to the conclusion that the defendant has no right to file the appeal. If the rights of the defendants are affected, the defendant has to file an appeal. Besides this, in the suit filed, the defendant was one of the parties. 17. Learned Appellate Authority has also ignored these vital points and has wrongly come to the conclusion that the defendant has no right to file the appeal. If the rights of the defendants are affected, the defendant has to file an appeal. Besides this, in the suit filed, the defendant was one of the parties. I may observe that in the present case where at one particular place two doctors are working against one post. The State Ex-chequer suffer and therefore, the State Government/Director Medical & Health should have taken care to file an appeal. At one place there are two doctors, while there must be other Government. Dispensaries where there is no doctor and the public suffer from the inaction on the part of the State/Director,Medical&Health Services. Because of fight between two doctors, neither the State Ex-chequer nor the public should suffer, but in the present case both have suffered. Had small care been taken by the Director, Medical & Health Services or the State Government, an appeal could have been filed by them as well. In the present case, because of the injunction granted by the trial court, Dr. Dhanesh Kumar Sharma is still working at Khairthal and the very basis on which the mandatory injunction was granted has also gone, namely that the transfer could not be made before expiry of two years (which circular I have held only executive in nature having no force of law), the plaintiff being posted at Government Dispensary Khairthal on 25.10.1989 and in view of the decision given above on different points, the orders passed by the trial court and the appellate court are liable to be quashed. 18. In the result, the revision petition is allowed. The orders passed by the learned trial court and the appellate court are quashed. A copy of this order be sent to the Chief Secretary Government of Rajasthan for taking necessary action against the defaulting officers who were responsible for not filing appeal against the order of the learned Munsiff and Judicial Magistrate. 19. Costs made easy.