JUDGMENT

B.P. JEEVAN REDDY, J.:—Heard counsel for the parties. Leave granted.

2. Respondent is a Garden Curator in the Office of the Scientist - SE, Botanical Survey of India, Eastern Circle, Shillong. By order dated January 29, 1991 he was transferred from Shillong to Pauri (Uttar Pradesh) by the Senior Administrative Officer, office of the Director, Botanical Survey of India, (Ministry of Environment and Forests, Government of India). As many as 19 persons were transferred under the said order, including the respondent. The respondent has been working in Shillong since the year 1979.

3. The respondent approached the Gauhati Bench of the Central Administrative Tribunal (Original Application No. 33 of 1991) questioning the order of his transfer. He submitted that his wife is also employed at Shillong in an office of the Central Government, that his children are studying at Shillong and further that he himself had suffered back-bone fracture injuries some time ago. He submitted that the guidelines contained in Government of India O.M. dated 3-4-1986 have not been kept in mind while ordering his transfer. He complained that some other officials who have been serving at Shillong for a longer period, have been allowed to continue at Shillong. He attributed mischief to his Controller Officer, Shri B. M. Wadhwa (third respondent in the O.M.).

4. In the counter-affidavit filed by the respondents, they submitted that the transfer was ordered on administrative grounds and is unexceptionable.

5. The learned single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning: the decisions of the Courts establish that the power of transfer is not an unfettered one but be circumscribed by various circulars/ guidelines contained in the administrative instructions issued by the Government. An order of transfer can be interdicted if it is discriminatory. The said principles are applicable to the case of the respondent. Further "in the matter of considering transfer of an individual officer, the Office Memorandum dated 3-4-1986, educational dislocation of the children and health ground, if all present, deserve special consideration not to pass the order." Having said so the learned Member recorded the following finding : "In view of the above facts and circumstances and findings, it is held unhesitatingly that the transfer order No. BSI.80/5/ 80-Estt, dated 29-1-1991 in respect of applicant S.L. Abbas was mala fide and liable to be quashed." The Union of India has preferred this appeal.

6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.

7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While orde