JUDGMENT M.Y. Eqbal. J. In this writ application, the petitioner has prayed for issuance of an appropriate direction for quashing the notification No. 823(3) dated 26.7.1997 whereby the respondent no. 7 Dr. (Mrs) J.H. Soren, has been directed to remain as the Civil Surgeon-cum-Chief Medical Officer, Singhbhum (West) Chaibasa and also for quashing the notification No. 824(3) dated 26.7.1997 by which the petitioner has been transferred from the post of Civil Surgeon cum Chief Medical Officer, Singhbum to the post of Civil Surgeon-cum-Chief Medical Officer, Kaimur, Bhabhua, although the petitioner has joined the post of Civil Surgeon cum Chief Medical Officer, Chaibasa, just a few days back i.e. by notification No. 518(3) dated 20.5.1997. 2. The facts of the case are not much in dispute. The petitioner was working as the Addl. Chief Medical Officer, Monghyr, from where he was transferred to the post of Civil Surgeon-cum-Chief Medical Officer, Singhbhum, West, Chaibasa vide notification No. 518 (3) dated 20.5.1997 by order of the Governor and the notification was issued by the Special Secretary to the Government. It is stated by the petitioner that the respondent no. 7 who was working as the C.S.-cum-Chief Medical Officer Chaibasa, was transferred to the post of Principal, Department of Health & Family Welfare Centre, Bhagalpur vide Notification No. 519 dated 20.5.1997. In pursuance of the said notification the petitioner gave his joining on 4.6.1997 and requested the respondent no. 7 to hand over the charge of the Civil Surgeon cum Chief Medical Officer, Chaibasa. However, respondent no. 7 refused to hand over the charge to the petitioner and, therefore, the petitioner assumed the charge on 4.6.1997 itself. The Regional Deputy Director of Health Service, South Chotanagpur, Ranchi, confirmed and countersigned the charge report dated 4.6.1997 by which the petitioner assumed the charge of the Civil Surgeon cum-Chief Medical Officer, Chaibasa, and since then the petitioner has been discharging his duties on the said post. It appears that the respondent no. 3, the Special Secretary, Health Department, Government of Bihar, Patna, vide Memo No. 678 dated 27.6.1997 directed the respondent no. 7 to join at his new place of posting at Bhagalpur immediately within a week, failing which after his suspension, necessary departmental proceedings can be initiated against her. A copy of the letter of the Special Secretary, dated 27.6.1997 has been annexed as annexure3 to the writ application. 7 to join at his new place of posting at Bhagalpur immediately within a week, failing which after his suspension, necessary departmental proceedings can be initiated against her. A copy of the letter of the Special Secretary, dated 27.6.1997 has been annexed as annexure3 to the writ application. It is stated by the petitioner that surprisingly, he came to know that by notification no. 428 dated 26.7.97 the petitioner has been transferred from Chaibasa to Kaimur, Bhabhua and the order of transfer of respondent no. 7 from Chaibasa to Bhagalpur has been stayed and she has been directed to remain at Chaibasa. A copy of the said notification is annexure-4 to the writ application. It is contended by the petitioner that although, the earlier notification was issued by the Governor under the signature of the Special Secretary, but surprisingly, the impugned order of transfer has been issued by the Deputy Secretary. It is alleged by the petitioner that the respondent no. 7 has been working in the South Chota nagpur Division since last 24 years continuously. She joined her service as medical officer, Chaibasa, in 1974 and she worked in the district of Singhbhum, continuously till 1992. It is further alleged that for the first time, she was transferred and posted as the Civil Surgeon-cum Chief Medical Officer, Singhbhum, Chaibasa for a brief period of three years, at Dhanbad but she had again been transferred from Dhanbad to Chaibasa and since then she was discharging her duties at Chaibasa till May, 1997. It is further alleged that the husband of respondent no. 7 is a political leader and Member of Legislative Assembly (MLA) and holding the post of District President of Rastriya Janta Dal and has a high political link with all the ruling parties of the State. It is further alleged that at the instance of the husband of the respondent no. 7, who made political pairvi, the order of transfer of respondent no. 7 was stayed. The petitioner further alleged that the respondent no. 7 was put under suspension vide notification dated 24.2.1996 on different charges while she was posted as the Civil Surgeon at Dhanbad. The order of suspension was subsequently revoked vide notification dated 12.9.1996 specifically mentioning that the departmental proceeding shall continue and the respondent no. 7 was directed to be present at the head-quarter at Patna during the period of her suspension. The order of suspension was subsequently revoked vide notification dated 12.9.1996 specifically mentioning that the departmental proceeding shall continue and the respondent no. 7 was directed to be present at the head-quarter at Patna during the period of her suspension. Lastly, it is contended that the respondent no. 7 and her family are the residents of Singhbhum and since last more than 20 years, she has managed to remain at Chaibasa and again managed to obtain the order of stay of her transfer and got the transfer order of the petitioner issued at the behest of her husband. 3. When the case was heard on admission on 15.9.1997, the standing counsel was directed to file counter affidavit and also to produce the records of the case. Pursuant to that, counter affidavit has been filed on behalf of the respondent stating and the file has also been produced by the learned standing counsel. In the said counter affidavit, it is stated that the respondent no. 7 who was earlier posted as the Civil Surgeon cum Chief Medical Officer, Dhanbad was transferred and posted on the same post at West Singhbhum Chaibasa by notification of the department dated 22.12.1995. However, immediately thereafter, she was suspended on the charges of irregularities vide notification dated 24.2.1996. Her suspension was ultimately vacated, where after she jointed at her earlier place of posting at Chaibasa. It is further stated that a proposal was mooted in the department for filling up the vacant posts of the civil surgeons and after approval of the authorities, a notification dated 20.5.1997 was issued by which the petitioner was posted as the Civil Surgeon cum Chief Medical Officer, West Singhbhum, Chaibasa, whereas the respondent no. 7 was posted as the Principal, Family Welfare Centre, Bhagalpur. 4. It is further stated in the counter affidavit that the respondent no. 7 thereafter, immediately made a representation in the department on 23.5.1997 against the order of transfer on the ground that she has not completed three years at Chaibasa; she is a member of the Schedule Tribe and both her mother and mother-in-law are ill and are undergoing treatment at Jamshedpur. She, therefore, requested for sympathetic consideration on her representation. It is stated that the department took note of the representation of respondent no. 7. It is stated that while staying the order of transfer of the respondent no. She, therefore, requested for sympathetic consideration on her representation. It is stated that the department took note of the representation of respondent no. 7. It is stated that while staying the order of transfer of the respondent no. 7, proper care was taken with regard to the petitioner who has been once again posted as the Civil Surgeon-cum-Chief Medical Officer at Kaimur. According to the respondent State, no illegality has been committed by issuing the order of transfer of the petitioner and staying the transfer order of the respondent no. 7. All other allegations and statements made in the writ application have not been denied or disputed by the respondent State in their counter affidavit. 5. Respondent no. 7 has also entered appearance and filed her counter affidavit. It is stated that by notification dated 20.5.1997, she was wrongly and illegally transferred. 6. I have heard Mr. Anil Kumar Sinha, learned Sr. Counsel for the petitioner, and Mr. Debi Prasad, learned Sr. Counsel for private respondents. I have also heard Mrs. Indrani Sen Choudhary, learned Standing Counsel No. 1 appearing for the State. 7. The un-disputed facts are that prior to issuance of the Notification dated 20.5.1997 (Annexure 1) the petitioner was working as Additional Chief Medical Officer, Monghyr, while respondent no. 7 was working as Civil Surgeon-cum-Chief Medical Officer, Singhbhum (West) Chaibasa. By the aforesaid notification issued by the order of the Governor, the petitioner was transferred as Civil Surgeon-cum-Chief Medical Officer, Chaibasa, in place of respondent no. 7 and respondent no. 7 was transferred to the post of Principal, Department of Health and Family Welfare Training Centre, Bhagalpur. Pursuant to the aforesaid notification, the petitioner submitted his joining at Chaibasa on 4.6.1997 and requested respondent no. 7 to hand over the charge of the post, but the latter refused to hand over the charge to the petitioner. It is also not disputed that the Regional Deputy Director, Health Services, South Chotanagpur Division, Ranchi, confirmed the joining of the petitioner as Civil Surgeon-cum-Chief Medical Officer, Chaibasa. It is also not disputed that respondent no. 7 did not join her transferred post. The Special Secretary, Health Department, Govt. of Bihar, vide Memo No. 678 dt. 27.6.1997 directed respondent no. 7 to join her new place of posting at Bhagalpur within a week, failing which after suspension departmental proceeding can be initiated against her. It is also not disputed that respondent no. 7 did not join her transferred post. The Special Secretary, Health Department, Govt. of Bihar, vide Memo No. 678 dt. 27.6.1997 directed respondent no. 7 to join her new place of posting at Bhagalpur within a week, failing which after suspension departmental proceeding can be initiated against her. A copy of that letter has been annexed as Annexure 3 to this writ petition. However, it appears that despite the aforesaid letter respondent no. 7 did not join her transferred post; rather filed representation against the order of transfer. Respondent no. 7, however, succeeded in getting another notification dated 26.7.1997 whereby the transfer of respondent no. 7 from Chaibasa to Bhagalpur was stayed and she was directed to remain at Chaibasa and at the same time the petitioner was transferred from Chaibasa to Kaimur (Bhabhua). 8. The following categorical allegations and statements have been made by the petitioner in the writ petition : (i) Although the notification dated 20.5.1997 was issued by the order of the Governor under the signature of the Special Secretary, but the impugned order of transfer was issued by the Deputy Secretary, which is against the rules and procedures of the Government. Moreover the impugned order was issued without recommendation of the Establishment Committee, which is mandatory for transfer of Civil Surgeon. (ii) Respondent no. 7 has been working in South Chotanagpur Division, since the last 24 years continuously. She joined as Medical Officer, Chaibasa, in the year 1974 and she managed to continue in the said district continuously upto 1992. Respondent no. 7 was transferred from Chaibasa to Dhanbad as Chief Medical Officer where she was suspended and departmental proceeding was initiated. However, again she was transferred to Chaibasa as Chief Medical Officer. (iii) After notification (Annexure 1) was issued whereby respondent no. 7 was transferred to Bhagalpur, political pairvi was made by one Sri Gobardhan Nayak. The respondent have managed the movement of file of transfer and posting of the petitioner and respondent no. 7, which will appear from the file no. 3/T 6-1-23/96 in which file no. 3/T- 27/96 has been appended and the impugned order has been issued. It is stated that file no. 3/T 6-1-23/96 is related with Dr. Ramawatar Pd. who was transferred and posted as Principal, Health and Family Welfare Training Centre, Bhagalpur, pursuant to the order of the Supreme Court. 9. 3/T 6-1-23/96 in which file no. 3/T- 27/96 has been appended and the impugned order has been issued. It is stated that file no. 3/T 6-1-23/96 is related with Dr. Ramawatar Pd. who was transferred and posted as Principal, Health and Family Welfare Training Centre, Bhagalpur, pursuant to the order of the Supreme Court. 9. Curiously enough, all these allegations and statements have not been denied or disputed by the Respondent-State in the counter affidavit. Simply it is stated that the transfer order of respondent no. 7 was stayed because of the representation filed by her. It would be useful to quote paragraphs, 9, 10 and 11 of the counter affidavit filed on behalf of the respondent-State, which run as follows :- "9. That immediately thereafter the respondent no. 7 made a representation in the department on 23.5.97 with the prayers : (i) That she has not completed her tenure of three years at the present place. (ii) That she is Scheduled Tribes lady (iii) That both her mother and mother-in-law are ill and are undergoing treatment at Jamshedpur and the transfer of this petitioner would definitely hamper their ongoing treatment, as such sympathetic consideration should be given to her representation and the same may be stayed. 10. That the respondent no. 7 again made a representation on 5.5.97 with the similar prayers for staying her transfer at Chaibasa. 11. That the department took note of the representation of the respondent no. 7 where after once again the grievances raised by the respondent no. 7 was taken into account and after the approval taken by the State Govt. the impugned notification no. 823(3) dated 26.7.97 (Annexure) has been issued staying the transfer of respondent no. 7." 11. However, respondent no. 7 in her counter affidavit tried to justify the order of stay of her transfer from Chaibasa to Bhagalpur on the ground, inter alia, that her transfer order itself was illegal and arbitrary action of the Government and the respondent-Health Department after realising the mistake immediately stayed the order of transfer. Respondent no. 7 further denied to have continuously working in Chaibasa for the last 24 years. According to her, she was posted at Chaibasa as Civil Surgeon-cum-Chief Medical Officer only by notification dated 2.12.1995. Respondent no. 7 further denied to have continuously working in Chaibasa for the last 24 years. According to her, she was posted at Chaibasa as Civil Surgeon-cum-Chief Medical Officer only by notification dated 2.12.1995. However, she has not denied the fact that as Medical Officer she continuously worked at Chaibasa from 1974 to 1992, i.e. for about 18 years, and again she was transferred and posted at Chaibasa in the year 1995. 12. Mr. Debi Prasad very vehemently argued that transfer of a Government servant is an incidence of service and the Government servant holding transferable post has no vested right to remain posted at one place or the other and that he is liable to be transferred from one place to another. Learned counsel, further submitted that the court should not interfere with the order of transfer made in public interest and/or for administrative reasons, even if the transfer order is passed in violation of executive instruction or orders. Learned counsel, however, tried to impress upon me by submitting that transfer of an employee is entirely for the employer to decide when, where and at what time a public servant is transferred from his present posting and ordinarily the courts have no jurisdiction to interfere. In this connection, learned counsel relied upon the decision of the Apex Court in the case of M/s Shilpi Bose and others vs. State of Bihar and others (1991 (1) PLJR (SC) 61) and in the case of State of Pubjab and others vs. Joginder Singh Dhatt (1994 BBCJ 28 (SC)). There is no dispute with regard to the proposition of law advanced by Mr. Debi Prasad. But it is equally well settled that when a transfer order is malafide and not made in public interest, but made for collateral purpose, with oblique motive and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void. Reference may be made to the decision of the Apex Court in the case of B. Varadha Rao vs. State of Karnataka and others, [(1996) 4 SCC 131], Union of India vs. S.L. Abbas ( AIR 1993 SC 2444 : 1994 (1) PLJR 1 (SC)), and E.P. Royappa vs. The State of Tamil Nadu and another ( AIR 1974 SC 555 ). 13. 13. Now the only question falls for consideration is as to whether the action of the respondent-State in issuing the second notification immediately after one month of transferring the petitioner from Chaibasa to Bhabua and staying the order of transfer of respondent no. 7 is malafide and is in colourable exercise of power. As noticed above the first notification dated 20.5.1997 was issued by the order of the Governor by which the petitioner was transferred and posted as Civil Surgeon-cum-Medical Officer, Chaibasa, and respondent no. 7 in turn was transferred and posted as Principal, Department of Health and Family Welfare Training Centre, Bhagalpur. But the second notification dated 26.7.1997 (impugned herein) was not issued by the order of the Governor rather it is the departmental notification issued under the signature of the Deputy Secretary of the Health Department. I have occasion to go through the file of the department which has been produced by the learned Standing Counsel. It appears from the record that one representation was filed by respondent no. 7 stating, inter alia, that she has not completed three years as Civil Surgeon-cum-Chief Medical Officer, Chaibasa, and she is member of Schedule Tribe. She further stated that her ailing mother lives with her. On this ground, she sought stay of the transfer order. It appears that on the basis of the representation, a note was placed by the Deputy Director to the Commissioner-cum-Secretary. But suprisingly that note sheet was given in a file, which was opened regarding transfer and posting of Dr. Ramawatar Pd. whose case was decided by the Supreme Court. It further appears that without knowing the correctness and genuineness of the grievance of respondent no. 7 the Commissioner recommended for stay of her transfer and the same was approved by the Chief Minister. It does not appear from the file that her representation was further placed before the Establishment Committee or considered in the manner provided under the rules of the executive business. It has not been disputed by the respondent-State that prior to passing of the impugned order, the matter was placed before the Establishment Committee at all. Although, the executive instructions are directory, but it does not mean that it must be ignored with impunity. It has not been disputed by the respondent-State that prior to passing of the impugned order, the matter was placed before the Establishment Committee at all. Although, the executive instructions are directory, but it does not mean that it must be ignored with impunity. It has been held by a Division Bench of this Court in the case of Shyam Kumar Prasad vs. State of Bihar and other ( 1995 (1) PLJR 69 ) that if the matter of transfer has not been placed before the Establishment Committee at all and it was done at the level of the Minister, then the order of transfer would be vitiated in law. I have noticed above that pursuant to the notification dated 20.5.1997 the petitioner joined as Civil Surgeon-cum-Chief Medical Officer, Chaibasa, and respondent no. 7 was directed by the Special Secretary to immediately join at her transferred post at Bhagalpur, failing which departmental action would be initiated. In such circumstances, question of stay of order of her transfer cannot and does not arise, inasmuch as in her place the petitioner already assumed duty. However, it has not been denied or disputed by the respondents that respondent no. 7 remained at Chaibasa as Medical Officer from 1974 to 1992, i.e. about 18 years, and she was for the first time transferred in the year 1992 as Civil Surgeon-cum-Chief Medical Officer, Dhanbad, and again she was sent to Chaibasa pursuant to the notification of 1995. During her stay at Dhanbad, she was suspended and departmental proceeding was initiated. I have failed to understand as to on what ground respondent no. 7 was allowed to continue in Chaibasa for such a long time and, in my opinion, it is nothing but because of some political forces or on extraneous consideration, the Government does not want to disturb her. In my considered opinion, therefore, the impugned notification, transferring the petitioner from Chaibasa and staying the order of transfer of respondent no. 7 is vitiated not only by malice in fact, but also malice in law and the same is malafide. 14. For the reasons aforesaid, this writ petition is allowed and the impugned notification dated 26.7.1997 is quashed. It is directed that the petitioner who has already joined as Civil Surgeon-cum-Chief Medical Officer Chaibasa shall continue as such and respondent no. 7 is vitiated not only by malice in fact, but also malice in law and the same is malafide. 14. For the reasons aforesaid, this writ petition is allowed and the impugned notification dated 26.7.1997 is quashed. It is directed that the petitioner who has already joined as Civil Surgeon-cum-Chief Medical Officer Chaibasa shall continue as such and respondent no. 7 shall immediately submit her joining report on her new place of posting at Bhagalpur.