JUDGMENT AND ORDER : Manojit Bhuyan, J. The order of transfer dated 26.4.2013 issued by the Director of Secondary Education, Assam, together with the Corrigendum dated 6.7.2013, issued by the same authority are assailed in the present proceedings. Be it mentioned that the said order of transfer dated 26.4.2013 was issued in partial modification of an earlier order of transfer dated 7.12.2012. 2. According to the petitioner, he was appointed on regular basis as an Assamese Language Teacher in the year 1994 at Sri Aurobindo Vidyamandir High School, Ulubari, which is a Bengali Medium Linguistic Minority Educational Institution, administered by its Managing Committee. At the relevant time he was also nominated as a member of the School Management and Development Committee (SMDC) by orders of the Inspector of Schools, Kamrup District Circle. 3. The ground of challenge to the order of transfer dated 26.4.2013 is that it stands vitiated on the principle of malice in law and not being based on any factor germane for passing the order of transfer. It is contended that the order transferring the petitioner out of Sri Aurobindo Vidyamandir High School, Ulubari was passed by way of or in lieu of punishment on the basis of undisclosed complaint made to the Director of Secondary Education, Assam by some members of the SMDC. 4. It appears from the available records that following the complaint made by some members of the SMDC to the Director of Secondary Education, Assam, a letter dated 1.11.2012 was issued by the Director addressed to the Secretary to the Government of Assam, Education (Secondary) Department, copy of which was not served upon the petitioner. In the said letter dated 1.11.2012 reference was made to the complaint received from the Committee against the petitioner of being a person of unruly behaviour, a party to embezzlement, disobedient and prone to uttering objectionable comments against the higher authority. In the said letter dated 1.11.2012 the Director of Secondary Education also made subjective comments to the effect that the petitioner was very often seen loitering in the Directorate and in one occasion the Director himself had called him to his office chamber and cautioned the petitioner not to visit the Directorate without valid reason and without authority. The Director recommended his transfer to another school from his present working place and to that end, sought for Government approval. 5. The Director recommended his transfer to another school from his present working place and to that end, sought for Government approval. 5. The end result of the complaint made by SMDC and the recommendation made by the Director in his aforesaid letter dated 1.11.2012, was the order of transfer dated 7.12.2012 transferring the petitioner from Sri Aurobindo Vidyamandir High School, Ulubari to Nagarbera Girls' High School. In the said order it was observed that the petitioner will carry his seniority. Challenge was made to the said order dated 7.12.2012 in WP(C) 6033/2012 and this Court by order dated 14.12.2012 while observing that the petitioner had already been released on 10.12.2012, the respondents were directed to produce the relevant records on the next date i.e. 17.12.2012 for consideration of the interim prayer of the petitioner. Meantime, status-quo as on the date of the order was directed to be maintained until 18.12.2012. During the pendency of the said Writ Petition, the petitioner had made a representation to the Minister of Education, Government of Assam highlighting his grievances and requesting cancellation of the order of transfer. It appears that an endorsement had been made by the Minister concerned on the body of the representation itself with direction to the Director of Secondary Education to cancel the order of transfer. Pursuant thereto, the petitioner by means of a Misc. Application i.e. Miscellaneous Application No. 475/2013 (in W.P.(C) 6033/12) withdrew the case from file. 6. The second chapter of the petitioner's case commenced with the issuance of the order of transfer dated 26.4.2013, so assailed in the present proceedings. By the said order and in partial modification of the earlier transfer order dated 7.12.2012, the petitioner was ordered to be transferred to Guwahati Railway Colony High School with immediate effect. A Corrigendum to the said order dated 26.4.2013 was also issued on 6.7.2013 to the effect that "Guwahati Railway Colony High School" should read as "New Guwahati Railway Colony High School". Pursuant to the said order of transfer and issuance of the Corrigendum, the petitioner reported for joining at New Guwahati Railway Colony High School on 2.8.2013 by submitting joining letter. Pursuant to the said order of transfer and issuance of the Corrigendum, the petitioner reported for joining at New Guwahati Railway Colony High School on 2.8.2013 by submitting joining letter. As the petitioner was not allowed to join in the school because of not being released from his erstwhile school, a letter was also issued by the Inspector of Schools, K.D.C. instructing the Headmistress of Sri Aurobindo Vidyamandir High School, Ulubari to release the petitioner w.e.f. 1.8.2013 enabling him to join at the new School. To overcome the stalemate, the petitioner was also constrained to file Misc. Case No. 2815/2013 in the present proceedings as neither the release order was issued from his erstwhile school nor his joining in the new School had been accepted. By order dated 30.10.2013 in the Misc. Application, an observation was made that the petitioner shall be deemed to have joined in the new school on 2.8.2013 and that he be allowed to take classes by regularly attending the new school. Another aspect of the matter urged by senior counsel Mr. Tiwari is that for the period between 10.12.2012 i.e. the date on which he was released pursuant to the first order of transfer dated 7.12.2012 to join at Nagarbera Girls' High School and until 1.8.2013, the petitioner has not been paid his due salary. 7. While narrating the facts above, Mr. Tiwari, learned senior counsel submits that although power vests upon the respondent authority to issue order of transfer in the exigency of service, however, the said power is circumscribed in the event the same suffers from arbitrariness or is mala fide or is contrary to statutory provisions. It is contended that in the instant case, mala fide is writ large on the part of the respondent authority, in that the edifice of the transfer order is the complaint made by the SMDC and the recommendation made by the Director of Secondary Education which is hedged with subjective comments. The extent of mala fide, according to learned senior counsel, is so deep that even the petitioner was not made aware of the allegations made against him, short of giving him any opportunity to rebut the allegations. To reinforce his argument on the point of mala fide, Mr. Tiwari places reliance in the case of Somesh Tiwari Vs. Union of India and others, reported in (2009) 2 SCC 592 . 8. To reinforce his argument on the point of mala fide, Mr. Tiwari places reliance in the case of Somesh Tiwari Vs. Union of India and others, reported in (2009) 2 SCC 592 . 8. An affidavit-in-opposition has been filed by the respondent no.2 i.e. the Director of Secondary Education, Assam. At paragraph-9 thereof, the complaints as received against the petitioner has been reiterated to the extent that the petitioner misbehaves with the members of the SMDC, has misused the official seal of the school, received Rs. 80,000/- from Punjab Technical University towards holding some examination and that he does not attend classes. The paragraph also states that the respondent no. 2 being fully convinced and satisfied with regard to the allegations made in the complaint, he had recommended his transfer to another school. At paragraph-10 thereof it is stated that in respect of the complaints made against the petitioner, no regular enquiry was called for to determine the performance of the petitioner. It is also stated that in the face of such serious complaint against the petitioner, the Director could not sit idle. Justification is made that since the petitioner has been transferred by maintaining his seniority, the same cannot be said to be by way of punishment. Mr. U.K. Goswami, learned counsel while relying upon the statements made in the affidavit-in-opposition have also placed reliance upon the Apex Court Judgment in the case of State of M.P. and another Vs. S.S. Kourav and others, reported in (1995) 3 SCC 270 as well as in the case of P.R. Sumiyon Vijayraj Vs. Union of India and others, reported in (2005) 3 GLR 353. 9. From a perusal of the said affidavit-in-opposition filed by the respondent no. 2, what transpires is that the order of transfer had been initiated only on the basis of the complaint received from the SMDC where serious allegations of embezzlement, misuse of office seal etc. had been made. Copy of the compliant was not served upon the petitioner. Statements made in the affidavit-in-opposition also make it apparent that the allegations made in the complaint formed the basis of the petitioner's transfer to another school. 10. In the case of State of M.P. and another Vs. S.S. Kourav and others (supra), relied upon by Mr. U.K. Goswami, the facts therein and the grounds of transfer are wholly distinct. Statements made in the affidavit-in-opposition also make it apparent that the allegations made in the complaint formed the basis of the petitioner's transfer to another school. 10. In the case of State of M.P. and another Vs. S.S. Kourav and others (supra), relied upon by Mr. U.K. Goswami, the facts therein and the grounds of transfer are wholly distinct. Transfer order was issued on administrative grounds and to that end, the Apex Court had observed that it is for the administration to take appropriate decision and that such decisions shall stand unless it is vitiated either by mala fides or by extraneous consideration without any factual background foundation. In so far as, the case of P.R. Sumiyon Vijayraj (supra) is concerned, the Hon'ble Gauhati High Court referred to the case of Mozibur Rahman Vs. State of Assam, reported in 2004 (2) GLT 421 which explained the distinction between "punitive transfer" and the order of transfer by "itself being punitive". Paragraph 9 in Mozibur Rahman's case (supra) was reproduced, which reads as follows: "9. Unsatisfactory performance on the part of the petitioner in the 2nd petition was the basis for his transfer to another school. The formation of opinion in this regard was the motive behind, which cannot be said to be the foundation. As observed by the Apex Court in the case of N.K. Singh (supra) several factors including suitability of the person and several imponderables requiring formation of a subjective opinion may be involved in the matter of transfer as in the instant case which cannot be regarded and/or taken into the fold of punitive transfer. In the instant case, the authority found certain irregularities on the part of the petitioner and to maintain the healthy atmosphere of the school in question in which the petitioner developed certain self-interest, the authorities resorted to the impugned action which in my considered opinion cannot be said to be illegal or arbitrary. The petitioner was not transferred solely on the basis of certain complaints. The procedure was adopted to verify the allegations through the subordinate officer, who in turn submitted a report and it was only thereafter on formation of an opinion, the impugned action was resorted to." 11. The petitioner was not transferred solely on the basis of certain complaints. The procedure was adopted to verify the allegations through the subordinate officer, who in turn submitted a report and it was only thereafter on formation of an opinion, the impugned action was resorted to." 11. It appears from the aforesaid judgment that although unsatisfactory performance formed the basis for transfer which also involved certain subjective opinions, the impugned order of transfer was not considered to be illegal or arbitrary. The formation of the opinion was on the premises that the petitioner therein was not transferred solely on the basis of certain complaints. In fact, a procedure was adopted to verify the allegations through an officer, who in turn submitted a report and it was only thereafter on formation of an opinion, the impugned action was resorted to. In the instant case, no such procedure was adopted to verify the allegations made in the complaint against the present petitioner nor the order of transfer was resorted to on the basis of any report submitted by any subordinate authority. In that view of the matter, the two judgments relied upon by Mr. U.K. Goswami do not come to the aid of the respondents. 12. In the case of Somesh Tiwari (supra) relied upon by Mr. P.K. Tiwari, the scope and grounds for interfering with an order of transfer by the Court was reiterated. The Apex Court held that a transfer, which is ordinarily an incident of service, should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide, as explained in the case, is of two kindsone malice in fact and second malice in law. Considering the facts in the reported case, the Apex Court held that the order in question would attract the principle of malice in law on ground that it was not based on any factor germane for passing an order of transfer but based on an irrelevant ground that is on the allegations made against the appellant therein in the anonymous complaint. The Apex Court held that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal. 13. The Apex Court held that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal. 13. Applying the ratio laid down in the case of Somesh Tiwari (supra), there is no gain-saying that the basis of the transfer of the petitioner to another school was on the allegations made against him in the written complaint filed by the SMDC authority. Indisputably, the order of transfer was not issued on administrative exigencies, which may have prompted this Court to shy away from interfering with it. Malice in law on the part of the authority in issuing the order of transfer is writ large and, situated thus, the order of transfer dated 26.4.2013 is liable to be interfered with. 14. The order of transfer dated 26.4.2013 being issued on the allegations made against the petitioner, which attracts the principle of malice in law, is not sustainable in law and is accordingly set aside. As a necessary corollary, the action of the State Respondents in withholding the salary of the petitioner for the period between 10.12.2012 to 1.8.2013 is wholly unjust. The contention of the State Respondents that the petitioner is not entitled to any pay for the dates on which he did not attend the duties, is too far-fetched a proposition in the attending facts and circumstances of the case. To uphold the stand of the Respondents would certainly amount to allowing the respondents to take undue advantage of its own wrong, more so, when this Court have found that the order of transfer was wholly illegal. In the circumstances, a direction is also made to the respondent authority for payment of the salary of the petitioner for the period between 10.12.2012 to 1.8.2013. 15. Upon the setting aside of the order of transfer dated 26.4.2013, issued under the hand of the Director of Secondary Education, Assam, read with the Corrigendum dated 6.7.2013, a direction is made that the petitioner shall be taken back into service as an Assamese Language Teacher at Sri Aurobindo Vidyamandir High School, Ulubari. In so far as payment of salary of the petitioner for the period between 10.12.2012 to 1.8.2013 is concerned, the respondents concerned shall take steps towards payment of the same within a period of three months from the date of receipt of a copy of this order. In so far as payment of salary of the petitioner for the period between 10.12.2012 to 1.8.2013 is concerned, the respondents concerned shall take steps towards payment of the same within a period of three months from the date of receipt of a copy of this order. The petitioner is permitted to furnish copy of this order to the respondents concerned for their doing the needful in terms of the directions above. 16. Resultantly, this writ petition stands allowed and the parties are left to bear their own costs.