The court emphasized that a transfer can only be challenged if it is without jurisdiction, violative of statutory rules, or malafide, and that guidelines issued by the government must relate to the condition of service to be justiciable.

1. The petitioner, a Girdhawar Qanoongo has been transferred by the Divisional Commissioner Kashmir vide order bearing No. Div.Com./Estt/K-132 of 2000 dated 20-1-2000 which is impugned by the medium of this writ petition. The respondents have filed objections to the admissibility of writ petition to which, the petitioner has reacted through a CMP accompanied by an affidavit seeking permission to read it in opposition to the objections of the State. Mr. G. Ali is averse to the motion but has no objection if the petition is finally disposed of at this very stage. In this view of the matter, I admit this writ petition to hearing. Mr. G. Ali adopts the objections filed by him as counter and the affidavit sought to be filed by the petitioner is taken on record, treating it to be the rejoinder and the writ petition is taken up for final hearing.

2. The transfer of a government servant is a normal feature of service, administrative in character and an incident of service, therefor, courts are loath to display indulgence, unless it is shown to be without jurisdiction or violative of statutory rules or malafide, which are the well settled exceptions and as a corollary, an aggrieved person has to be protected, if his case falls within any of these exceptions. How far these exceptions are attracted in the case in hand has to be examined in the light of grounds of challenge thrown to the order impugned.

3. The impugned order is challenged on the ground that the petitioner has been transferred to a village, which is at a distance of 30 kilometres from his home town. Claiming to be the father of four children, it is canvassed that the order is likely to up-root his family. Since no rule has been brought to the notice of the court, which would suggest any violation of a condition of petitioner™s service therefore, I decline to interfere, obviously, no expression of opinion in respect of merit of the ground is called for. However, it needs to be observed that in case petitioner apprehends any inconvenience he cannot seek indulgence of this court on this ground and the proper course for him is to represent to the respondents.

4. It is next contended that the order has been passed to accommodate the respondent No; 6 and the averment is couched in the following words:

.... that the respondents 3 and 4 have issued order dated 20-01-2000 only to accommodate respondent No. 6 at the cost of the petitioner. It is a well settled proposition of law that where an order of transfer is issued by an authority for purposes of accommodating any official at the cost of the order, the order is malafide and legally unsustainable. The impugned order dated 20-01-2000 having been issued by respondents No 3 and 4 only to accommodate respondent No.6 at the cost of the petitioner, therefore, the order is malafide and being based at extraneous considerations, is therefore, liable to be set aside.....

5. It is settled position in law that one, who alleges malafides, onus lies on him to prove it and it is not possible on the basis of a bald assertion to hold that the order impugned is activated by malafide considerations. The ground of malafides reproduced hereinabove, is not well founded because material facts are wanting, therefore, it not possible to draw an inference on such vague suggestion.

6. How the Apex Court deals with the situation where malafide is a ground, advantageous it is to refer to Rajinder Roy versus Union of India reported in AIR 1993 SC 1236 para 7 page 1239 in which it has been held :

...It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed malide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malafide in fact in case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pl

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