JUDGMENT : K.M. Thaker, J. Heard Mr. T.R. Mishra, learned advocate for the petitioner, and Ms. Chandarana, learned advocate for the respondent – railways. 2. The petitioner has challenged order dated 22.4.2011 transferring him from Rajkot to Okha. The petitioner challenged the said order on diverse grounds. One of the contentions raised by the petitioner is that the transfer order came to be passed malafide and only because the petitioner, as union representative, had served notice intimating that if the problems of the workmen are not resolved, then they will resort to strike and because the petitioner had initiated Dharna. 3. While admitting the petition and granting interim relief vide order dated 29.8.2011, this Court passed below quoted order:- "On 4th July 2011, the Court passed the following order: "Learned Advocate Ms. Reeta Chandarana to put it to the authorities to reconsider their decision which is under challenge in this petition. (emphasis supplied). At her request, the matter is adjourned to 18.07.2011. A copy of this order be made available to learned Advocate Ms.Reeta Chandarana for its onward communication." After this order, the learned advocate for the respondents filed a Note before this Court which was forwarded to her with a forwarding letter dated 16.07.2011 under the signature of one Mr. O.P. Pathak for DRM(E) Rajkot. The note was signed by one Mr. R.K. Verma, Senior Divisional Electrical Engineer, Western Railway, Divisional Office, Rajkot. Learned advocate for the petitioner filed an affidavit affirmed on 04.08.2011, replying to the contents thereof. Thereafter an affidavit-in-reply was filed by the respondents, affirmed on 11,08.2011 by one Mr. Radhey Shyam Sharma, Sr. Divisional Personnel Officer, Western Railway, Rajkot. This Court has never come across any positive response from the Railway authorities to any suggestions made by the Court. Least it may be said that the Court is passing the order because the Court is feeling offended by the response given by the Railway authorities, the facts of the case are stated. Every contention set out in the note filed before the Court with forwarding letter dated 15.07.2011 is dealt with in a detailed affidavit filed by the petitioner. The affidavit-in-reply filed by the respondents is subsequent thereto, but for the reasons best known to the respondent authorities, the authorities have not cared to reply to the contents of affidavit dated 04.08.2011 filed by the petitioner. Ms. The affidavit-in-reply filed by the respondents is subsequent thereto, but for the reasons best known to the respondent authorities, the authorities have not cared to reply to the contents of affidavit dated 04.08.2011 filed by the petitioner. Ms. Reeta Chandarana, learned advocate for the respondents vehemently submitted that, 'transfer is a condition of service and not a mere incidence of service'. It is too late in the day to contend this because the authorities ought to have appreciated that when the Court is asking to look into the matter, the Court must be having some reasons for the same. Prima facie the Court was convinced of the fact that this was an order passed for victimising the petitioner. The Court wanted the authorities to correct their mistake and pass an order cancelling the transfer order and putting the petitioner back to the same place. Learned advocate for the respondents relied upon two decisions of the Honourable Apex Court. Firstly, learned advocate relied upon a decision in the case of National Hydroelectric Power Corporation Ltd. v. (1). Shri Bhagwan (2). Shiv Prakash reported in (2001) 8 SCC 574 . Learned advocate for the respondent relied upon the Head Note of the said decision, which is reproduced hereunder for ready perusal: "Service Law – Transfer of employee – Nature of, and scope of judicial review of such transfer – Transfer of employee, held is not only an incident but a condition of service – Unless shown to be an outcome of malafide exercise of power or violative of any statutory provision, held, not subject to judicial interference as a matter of routine – Courts or tribunals cannot substitute their own decision in the matter of transfer for that of the management – Hence, transfer of employee from corporate office of the employer Corporation to its project with protection of his seniority, held, quite valid – More so when the project was new one not involving any risk at all of an adverse effect of the transferee's seniority – National Hydroelectric Power Corporation Seniority Rules, R.4.1.1." (emphasis supplied) In the present case, learned advocate for the respondents submitted that the transfer order dated 22.04.2011, a copy of which is produced at page No.34, does mention that the petitioner is now transferred and posted at OKO [Okha] in same pay and pay band in the interest of administration against existing vacancies. Learned advocate further submitted that the order also stipulates that the petitioner is eligible for all transfer benefits as per extent rule and the Railway quarter if allotted/occupied should be got vacated on being relieved on transfer. Learned advocate for the petitioner next relied upon a decision in the case of State of U.P. And Others v. Gobardhan Lal reported in (2004) 11 SCC 402 . The head note of the judgment reads as under: "Service Law – Transfer of employee – Court's interference with – Transfer is prerogative of the authorities concerned and court should not normally interfere therewith, except when (I) transfer order shown to be vitiated by mala fides, or (ii). In violation of any statutory provision, or (iii). Having been passed by an authority not competent to pass such an order – Allegations of mala fides must be based on concrete material and must inspire confidence of the court – Where in the writ petition challenging order of transfer disputed questions of facts raised, held, High Court erred in making sweeping observations on the basis of its own assessment and laying down general guidelines regarding transfers." In the present case, on perusal of the averments made in the petition, more particularly in the affidavit sworn on 04.08.2011, this Court is of the considered opinion that the petitioner is picked up for being transferred from Rajkot to Okha only on account of his position as General Secretary of the Union. Though this affidavit was filed on 04.08.2011, in the affidavit-in-reply filed by the respondents on 11.08.2011, none of the contentions of the affidavit are dealt with. In view of this, this Court is of the opinion that the transfer is malafide and therefore requires to be stayed. RULE. Interim Relief in terms of paragraph 13(B). Learned advocate Ms. Reeta Chandarana waives service of rule on behalf of the respondents." 4. After the said order was passed, the respondent herein filed appeal i.e. Letters Patent Appeal No.1537 of 2011 and challenged the order dated 29.8.2011. The Division Bench rejected the appeal vide order dated 12.10.2011 wherein Division Bench observed, inter alia, that:- "5. We are in complete agreement with the view taken by the Learned Single Judge. No case is made out for interference. The appeal is devoid of any merits and is accordingly dismissed. 6. The Division Bench rejected the appeal vide order dated 12.10.2011 wherein Division Bench observed, inter alia, that:- "5. We are in complete agreement with the view taken by the Learned Single Judge. No case is made out for interference. The appeal is devoid of any merits and is accordingly dismissed. 6. In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed. 7. It will be open for the appellants to move the Learned Single Judge for early hearing of the writ petition. If such an application is moved, the Learned Single Judge is requested to decide the writ petition expeditiously, subject to His Lordship's convenience." 5. Since then, the petition is pending and the implementation and operation of the transfer order dated 22.4.2011 has remained stayed by virtue of interim order dated 29.8.2011. 6. Almost 5 years have passed since the authority passed the order and almost 4½ years have passed since the time when Court passed the order and stayed operation of the transfer order. 7. It is now submitted that with passage of time, the transfer order is rendered infructuous. 8. Having regard to the aforesaid facts and circumstances, Ms. Chandarana, learned advocate for the respondent, upon instructions from Mr. Siju, Law Officer, submitted that considering the lapse of time since the order dated 22.4.2011 came to be passed and also having regard to the fact that almost 4½ years have passed since that order, the authority will not implement or insist for enforcement of the said order, without prejudice to the respondent's right in accordance with applicable rules. 9. Mr. Mishra, learned advocate for the petitioner, submitted that in view of the statement by learned advocate for the respondent that the authority will not act upon or enforce the order dated 22.4.2011 transferring the petitioner from Rajkot to Okha, cause to prosecute the petition does not survive and the petition is, in light of the said statement by learned advocate for the respondent, rendered infructuous and may be disposed of accordingly. In view of the said statement by Ms. Chandarana, learned advocate for the respondent railways, and submission by Mr. Mishra, learned advocate for the petitioner, the petition is disposed of as infructuous. Rule is discharged. Petition disposed of.