JUDGMENT By the Court.—This petition, by Om Prakash Singh, challenges the order of transfer dated 27.9.2007, by means of which he has been transferred in public interest from Bhognipur Kanpur Dehat to Divisional Forest Officers, Badaun, on his substantive post. On the same very day, another transfer order was issued transferring respondent No. 4 R.K. Gangwar, from Badaun to Bhognipur, Kanpur Dehat in place of the petitioner. Both the aforesaid orders recite that the transfer is being effected in public interest. 2. The ground of challenge to the transfer order is mainly the intervention of the State Minister, Independent Charge, Sports and Youth Welfare, namely; Sri Ayodhya Prasad Pal, who vide his letter dated 25th July, 2007 and again on 3rd September, 2007, has complained against the petitioner to the Chief Minister and consequently requested for transferring him from the present place of posting i.e. Kanpur Dehat and to post one R.K. Singh, in his place. However, Sri R.K. Singh could not be posted because of earlier litigation which took place between the petitioner and R.K. Singh, in Writ Petition No. 875(SB) of 2006, in re : Rajendra Kumar Singh v. State of U.P. and others, which was disposed of vide order dated 1.8.2006. In pursuance of the order dated 1.8.2006 the State after transferring the respondent No. 4, in Kanpur Circle office, posted the Beldar in his place at Bhognipur, Kanpur Dehat. 3. Sri S.C. Yadav, learned Additional Chief Standing Counsel, who is possessed with the record though even after seeing the same and the averments made in the counter affidavit, initially tried to impress upon the Court that the present transfer of the petitioner is not the outcome of the complaint made by the State Minister that too of another Department because the same has not been taken into account for transferring the petitioner but the matter was considered by the Committee consisted of Sri Shrikrishna, Principal Secretary, Forest, Sri K. Ravindra Nayak, Special Secretary to the Chief Minister, and Sri B.K. Patnayak, Chief Conservator of Forest and on their recommendation the transfer order was passed. But later on, after seeing paragraph 4 of the counter affidavit and also the record more closely alongwith the original letter of the Minister on which notings have been made, submitted that the petitioner has been transferred because of the complaints received against him, which fact was taken into consideration by the High level Committee aforesaid and therefore, it cannot be said that the Ministers letter was not considered while taking a decision to transfer the petitioner to Bhognipur, Kanpur Dehat. It is thus, admitted to the State that the action of transfer of the petitioner has been taken because of the complaints, a mention of which finds place in the letter of the Minister and which has been considered by the State Government through the committee constituted for the purpose. The minutes of meeting read as follows : "Dinak 19.09.2007 Ko Bhartiya Van Sewa Evam Prantiya Van Sewa Key Liye Gathit Civil Sewa Board Kee Baithak Ka Karyavrat. Baithak Mein Nimnlikhit Adhikarigan Ney Bhag Liya : 1. Sri Shrikrishna, Pramukh Sachiv, Van. 2. Sri K. Ravindra Nayak, Vishesh Sachiv, Mukhya Mantri. 3. Sri B.K. Patnayak, Pramukh Van Sanrakshak. Baithak Mein Yah Avgat Karaya Gaya Hai Ki Sri R.K. Gangwar, Up Prabhagiya Vanadhikari, Badaun Ko Is Prabhag Mein 06 Varsh Sey Adhik Ho Gain Hai, Jishkey Drashtigat Inhen Badaun Esthannatrit Kiya Jana Avashyak Hai. Isee Sandarbh Mein Yah Bhi Bataya Gaya Ki Sri Om Prakash Singh, Up Prabhagiya Vanadhikari, Bhognipur, Kanpur Dehat Van Prabhag Key Virudh Katipai Shikayaten Prapta Hueen Hain Jinkey Drashtigat Inhen Yahan Se Esthanntrit Kiya Jana Hai. Samyak Vicharoprant Civil Sewa Board Dwara Prantiya Van Sewa Key Adhikariyon Key Esthanntran/Tainati Key Sambandh Mein Nimnwat Sanstuti Kee Jati Hai : Kramank Naam Vartaman Pad Prastavit Pad 1. Sri R.K. Gangwar Sahayak Van Sahayak Van Sanrakshak, Badaun Sanrakshak, Bhognipur, Kanpur Dehat. 2. Sri Om Prakash Sahayak Van Sahayak Van Singh Sanrakshak, Sanrakshak, Bhognipur, Kanpur Badaun, Van Dehat Prabhag. 3. Sri R.K. Singh SahayakVan Sahayak Van Sanrakshak, Sanrakshak, SambadhVrat Farrukhabad Van Karyalaya,Van Prabhag Sanrakshak (B.K. Patnayak) (K.Ravindra Nayak) (Shrikrishna) Pramukh Van Sanrakshak Vishesh Sachiv, Mukhya Pramukh Sachiv Van. U.P. Mantri. 4. 2. Sri Om Prakash Sahayak Van Sahayak Van Singh Sanrakshak, Sanrakshak, Bhognipur, Kanpur Badaun, Van Dehat Prabhag. 3. Sri R.K. Singh SahayakVan Sahayak Van Sanrakshak, Sanrakshak, SambadhVrat Farrukhabad Van Karyalaya,Van Prabhag Sanrakshak (B.K. Patnayak) (K.Ravindra Nayak) (Shrikrishna) Pramukh Van Sanrakshak Vishesh Sachiv, Mukhya Pramukh Sachiv Van. U.P. Mantri. 4. It is apparent from the aforesaid minutes of the meeting that during the course of meeting, it was disclosed (source not mentioned) before the Committee that the respondent No. 4 has been staying for more than six years at Badaun and also there are alleged complaints against the petitioner which apparently prompted the Committee to make such a recommendation of inter-se transfer. Besides this remark, there is nothing in the minutes of meeting, to establish that there was any material, which was considered and could have been considered. May be that the respondent No. 4 could have been transferred from Badaun after staying there for over six years from that place to another place including the present place of posting, but such a transfer only for ousting the petitioner on the mere desire of the Minister of State, Sports and Youth Welfare is arbitrary. The transfer order having been passed on non-existent facts under the political influence suffers from arbitrariness besides being contrary to law. 5. A plea has also been raised by the State Counsel that since no notice has been issued to the respondent No. 5, therefore, the plea of malafide cannot be seen at this stage to which the petitioner has replied by saying that looking into the original record of the case as well as the pleadings of the parties including that of the State, it is a case of malice in law where the order has been passed on extraneous consideration and is contrary to law, therefore, notice need not be issued to the Minister viz. the respondent No. 5 but the validity of the order can be seen in view of the aforesaid pleading of the parties. Earlier a litigation, i.e. Writ Petition No. 875(SB) of 2006, decided on 1.8.2006, took place between the petitioner and Sri Rajendra Kumar Singh. the respondent No. 5 but the validity of the order can be seen in view of the aforesaid pleading of the parties. Earlier a litigation, i.e. Writ Petition No. 875(SB) of 2006, decided on 1.8.2006, took place between the petitioner and Sri Rajendra Kumar Singh. The petitioner of the said writ petition, namely; Rajendra Kumar Singh felt aggrieved by his transfer from Kanpur Dehat to Kanpur Circle, reference of which has been given above, but later on he reconciled with his posting and the writ petition was decided accordingly on 1.8.2006. 6. The petitioner asserts that as an honest officer in compliance of the directive issued by the Supreme Court in the matter of running of saw mills, a reference of which has been given by the petitioner in the writ petition, submitted a report in pursuance of which sealing orders were passed with respect to four factories including one factory namely; M/s Northern Doors Pvt. Ltd. Kanpur, as mentioned in (Annexure-6) to the writ petition. Sealing was effected sometime in the middle of the month of September 2006 in pursuance of the order passed by the Supreme Court on 1st September, 2006 in the case of T.N. Godavannu Therumulkpad v. Union of India and others. 7. The State Minister, Independent Charge of Sports and Youth Welfare on 25th July, 2007 and vide another letter dated 3rd September, 2007, requested the Chief Minister to transfer the petitioner outside the range i.e. outside Kanpur Dehat as he was involved in the illegal running of Aara Machines, Saw Mills, Ply factories, Kattha factories and Koyele Ki Bhatti on accepting huge bribe illegally. The said letter dated 3rd September, 2007, is the photostat copy of the letter dated 25th July, 2007, which contains the same contents though with different dates. The letter dated 25th July, 2007 has been marked as VIP 37/14-1-07 and the letter dated 3rd September, 2007 has been marked as VIP 38/14-1-07. 8. The said letter dated 3rd September, 2007, is the photostat copy of the letter dated 25th July, 2007, which contains the same contents though with different dates. The letter dated 25th July, 2007 has been marked as VIP 37/14-1-07 and the letter dated 3rd September, 2007 has been marked as VIP 38/14-1-07. 8. On specific query being put to the State Counsel that if it was the case of the respondent that a large number of complaints were there against the petitioner, as argued by the learned Counsel for the State and as suggested in the counter affidavit filed by the State, and as also mentioned in the letter of the State Minister, the said complaints be produced before the Court, since in the Counter affidavit there is no mention of any complaint but for the recital made in the two letters of the State Minister, and the recital made in the minutes of the meeting of the Committee nor any copy of the complaint has been forwarded alongwith the letters of the Minister, the learned Additional Chief Standing Counsel Sri S.C. Yadav candidly informed the Court that on the record there is no complaint against the petitioner nor there is any complaint which was considered by the Committee constituted for the purpose of considering his transfer, referred to above, and that no such complaint was ever brought to the notice of the State. In the noting which has been made on the letter of the State Minister there are repeated endorsement at different levels of the department which confirm that there were no disciplinary proceedings pending against the petitioner. These endorsements are made on 1st September, 2007 and on 3rd September 2007. We, therefore, safely conclude that there was no complaint against the petitioner with the State Government and only a sweeping statement with absolute bald and vague allegation was mentioned in the letter of the Minister which was taken as the basis by the State Government for transferring the petitioner out from Kanpur Dehat. 9. We, therefore, safely conclude that there was no complaint against the petitioner with the State Government and only a sweeping statement with absolute bald and vague allegation was mentioned in the letter of the Minister which was taken as the basis by the State Government for transferring the petitioner out from Kanpur Dehat. 9. So far respondent No. 4 is concerned, his and the State Governments defence for transferring and posting him at Kanpur Dehat that since he had completed six years tenure at Badaun and he could not be transferred during annual chain of transfer in the month of July 2007 because of bye-elections, therefore, he was rightly transferred in September 2007 and he had played no role in choosing his place of posting who was willing to be transferred because he had completed six years and therefore, even if, the petitioner has been transferred out from Kanpur Dehat because of alleged intervention of the Minister or for extraneous consideration, the transfer of respondent No. 4 need not be interfered with, nor can be faulted with in any manner, is concerned, suffice would be to mention that the learned Additional Chief Standing Counsel could not tell despite being specifically asked for as to how the State Government could know and how it was brought to the notice of the Committee that respondent No. 4 had stayed for six years at Badaun and therefore, he need be transferred to some other place, whereas he admits and says that there may be many more officers, of the equal or higher rank, or of different ranks, who had been staying at their place of posting for more than six years, but the State is not aware about their names, and details. 10. That being so, it is difficult to presume that the State Government of its own could have derived knowledge of the period of stay of respondent No. 4 at Badaun and the fact that he has crossed six years period in District Badaun sometimes in July 2007, and because of bye-elections, he could not be transferred. In the absence of any such clarification having been put forward by the State, such a plea would not defeat the claim of the petitioner with respect to his transfer out of Kanpur Dehat. 11. Reliance has been placed upon the case of Mohd. In the absence of any such clarification having been put forward by the State, such a plea would not defeat the claim of the petitioner with respect to his transfer out of Kanpur Dehat. 11. Reliance has been placed upon the case of Mohd. Masood Ahmad v. State of U.P. and others, (2007) 8 SCC 150 , wherein the Supreme Court had an occasion to consider the transfer order which was interfered by the High Court on the ground that it was as a result of political pressure exercised by the M.L.A. and had observed that there can be no hard and fast rule that every transfer would be vitiated on considering the facts of that case and the circumstances in which the M.L.A. had written a letter. The Supreme Court has found that the transfer could not be interfered with on the aforesaid allegation of Ministers intervention. 12. The law is settled that merely because a transfer has been recommended by a public representative, the same would not stand vitiated but it has to be seen as to whether the complaint made has some bearing and is genuine or that the public representative who is making that recommendation belongs to the constituency concerned or not so that he may have some knowledge of the working and the functioning of the Government servant and if a Minister of a different Department who apparently cannot have any knowledge of the working of another department, nor can have any control, makes a recommendation, action can be taken by the department on such a recommendation also, if it comes through the Minister of the Department concerned or even otherwise but while taking such action, it would be obligatory upon the State Government to verify the contents of the complaint against the Government servant. Merely because the public representative makes complaint against the Government functionary, it cannot be taken as a gospel truth particularly in an era when public representatives act against the Government servant/functionary only by being guided of their personal vengeance, political gain and not by the merits of the claim of either parties. 13. Frequent transfers or the transfer on the non-existent ground and that too against the innocent and honest Government servant is highly demoralizing. 13. Frequent transfers or the transfer on the non-existent ground and that too against the innocent and honest Government servant is highly demoralizing. The transfer is an incident of service but it cannot be allowed to be taken as a tool for satisfying the political ends or pleasing the supporters of a particular party nor it can be allowed to frustrate the honest working of the Government servant. Such a transfer order hits at the integrity, morality and character of an honest officer, if he is transferred abruptly and singly. 14. In this regard the petitioner has placed reliance upon the case of Najamal Hussain Mehadi v. State of Maharashtra and others, (1997) 1 SCC 532 and the case of Arvind Dattaraya Dhande v. State of Maharashtra and others, (1997) 6 SCC 169 . 15. It remains yet to be explained that when there was no complaint actually available with the State Government nor any complaint was attached with the letters of the Minister nor any complaint was otherwise sent to the Government then on what material/basis the so called High Level Committee considered the question of complaints against the petitioner and felt satisfied that it was a case for transfer because of the complaints. It also could not be explained by the State that by what means the State could come to know that the respondent No. 4 has completed six years of stay at Badaun recently in July 2007, and therefore, he should be transferred and posted at Kanpur Dehat, when as already stated by the State Counsel a large number of officers who are overstaying beyond their tenure at their respective places of posting have not been transferred nor their details are known to the State and that in the absence of disclosure of the source, from which the instant case of respondent No. 4 was noticed by the State Government, there cannot be any reason to doubt that the posting of respondent No. 4 in place of petitioner was simply to oust the petitioner from Kanpur Dehat and to post him at some other place. 16. The fact is also fortified by the fact, that the factory which was sealed for violating the Supreme Courts order, was allowed to run and undertake the activities, otherwise forbidden by the order. 16. The fact is also fortified by the fact, that the factory which was sealed for violating the Supreme Courts order, was allowed to run and undertake the activities, otherwise forbidden by the order. The State has not explained that why the seal of the factory was opened and thereafter, it was allowed to run that too on the basis of the two wholly unreliable and contradictory affidavits filed by the factory owners. 17. The order of transfer of the petitioner, appears to have been made so as to remove an inconvenient officer from that place. 18. For establishing the plea of malice one has to see whether the order impugned suffers from any manifest error of facts or has been passed on extraneous considerations or is contrary to law or has been based on no material and without any basis, merely on the surmises and conjectures. 19. For a plea of malice of law, the impleadment of the person/individual is not needed. It is not the relief, which is claimed against the person or because of his conduct but it is because of the manner in which the decision has been taken i.e. it is the decision making process which comes for judicial scrutiny where a plea of malice of law can be raised and is scrutinized. 20. In the case of Smt. Parul Goel v. State of U.P. and others, i.e. Writ Petition No. 2330(MB) of 2006 and other connected matters decided on 22.12.2006 this Court, has observed as under : "An administrative decision can be actuated with either malice in fact" or malice in law" or with both. The distinction in malice in fact and malice in law broadly is that in the former plea the person/authority against whom the malice or malafide is being alleged has to be impleaded as a party and given opportunity of hearing, that of defending himself against the charge. The malice in law is not dependant upon the impleadment of the person or the authority concerned but the action itself or the order passed and the manner in which such action or order has been passed which means and includes the decision making process and which flows from the record, would give jurisdiction to the Court of judicial review of such a decision. It would not be mandatorily necessary to implead any specific person or authority when the decision is being challenged on the ground of unfairness or unreasonableness or in violation of statutory rules and the decision making process suffers from the vice of extraneous consideration and side tracks the issue involved and is contrary to law." 21. In the case of State of A.P. and others v. Goverdhanlal Pitti, (2003) 4 SCC 739 , the Supreme Court, on reference being made to various decisions including English decisions made a demarcation of malice in fact and malice in law, as is evident from the following paragraphs : "12. The legal meaning of malice is " ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and wilfully without reasonable and probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others" (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989) 13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edn.,at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to "acquire land" "for a purpose not authorised by the Act". The State, if it wishes to acquire land, should exercise its powers bona fide for the statutory purpose and for none other. 14. Legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings." 22. In the case of K.K. Bhalla v. State of M.P. and others, (2006) 3 SCC 581 the Court observed that it was difficult to accept the submission of Mr. Chaudhari that the orders impugned in the writ petition were not vitiated as the same was not arbitrary or mala fide. Malice may either be on fact or in law. Passing of an order for unauthorized purpose constitutes malice in law. (See Punjab SEB Ltd. v. Zora Singh and Union of India v. V. Ramakrishnan). In the aforesaid case of Punjab State Electricity Board v. Zora Singh, (2005) 6 SCC 776 , the apex Court considered the case of State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 also alongwith the case of S.R.Venkataraman v. Union of India, (1979) 2 SCC 491 and made the following observation : "Furthermore, there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorized purposes, as it would amount to malice in law." 23. In S.R.Venkataraman case (supra), the Supreme Court observed as under : "It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law, however, quite different. Viscount Haldane described it as follows in Shearer v. Sheilds, (1914 AC 808) : A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause and excuse, or for want of reasonable and probable cause." 24. In the light of the aforesaid legal position, the plea of malafide of the petitioners and defence of the respondents has to be looked into. 25. In the light of the aforesaid legal position, the plea of malafide of the petitioners and defence of the respondents has to be looked into. 25. In the instant case there was no material at all with respect to complaints against the petitioner, except a sweeping remark made by the Minister of Sports and Youth Welfare Department and not even of the concerned Minister. No complaint was ever sent to the State Government nor was considered nor was before the committee which was constituted for considering the transfer of the petitioner. On what consideration and material the Committee observed that there were complaints against the petitioner, has not been disclosed nor it is known. The order has been passed merely on the basis of surmises and conjectures or non-existent facts. State has failed to indicate the source from which it could come to know that the respondent No. 4 has completed six years of stay at Badaun and what public interest has been served in exchanging two persons namely; transferring the respondent from Badaun to Kanpur Dehat and the petitioner from Kanpur Dehat to Badaun that too in the mid of the session, though transfer could have been waited till the annual chain of transfer. 26. The circumstance under which the District Magistrate has directed the opening of saw mill namely; Kanchan Udyog, Rania Kanpur Dehat and Balrampur Wood Products, Raipur, Kanpur Dehat, though admittedly they are set up in contravention of the orders/directive issued by the Supreme Court could not be explained by the State Government nor the State Government could say that the aforesaid saw mills could have been opened in the presence of the directive issued by the Supreme Court. 27. In the aforesaid factual and legal position, the order of transfer impugned in the present writ petition dated 27.9.2007, contained as Annexure 1 to the writ petition, cannot be sustained, which is hereby quashed. The petitioner shall be allowed to continue at Kanpur Dehat and the respondent No. 4 shall either be allowed to continue at Badaun, if no other person has been posted there or if any person has already been posted then the respondent No. 4 shall be given appropriate posting within a period of ten days from the date of receipt of the certified copy of the order. 28. 28. This order would not come in the way of the State Government in making annual transfer looking to the exigency of service. 29. The writ petition is allowed. Costs easy. ————