The court emphasized that the discretion lies with the authority to transfer an incumbent to the best advantage of the Government's interest and held that the malafide intention was not established.

T.S.SIVAGNANAM J.

The above Writ Petition has been filed by the Union of India, represented by its Principal Director (Staff), Office of the Comptroller and Auditor General of India, challenging the order passed in O.A.No. 396 of 2006 dated 27. 2006.The first respondent herein is the applicant before the Tribunal.

2. The applicant filed O.A.No.396 of 2006, for declaring the order passed by the third and fourth respondents dated 5. 2006, insofar as the transfer of the applicant from MetropolitanTransport Project (Railways), Chennai, to workshop and stores, Golden Rock, Trichy, as being illegal, contrary to the Circular dated 111. 1987, a colourable exercise of power, discriminatory, arbitrary, malafide and violative of Article 14 and 16 of the Constitution of India and for a consequential relief to repost the applicant at Chennai as Senior Auditor with all consequential benefits.

3. The relevant service particulars of the applicant are that, the applicant joined the service in the Office of the Accountant General at Hyderabad in the year 1982 and thereafter on her request, she was transferred to the Metropolitan Transport Project Audit Office (MTP) during December 2003 and had been working in that Office when she was transferred to Trichy by the impugned order dated 5. 2006.The applicant contended before the Tribunal that the order of transfer is contrary to Circular dated 111. 1987, issued by the first petitioner herein. According to the Circular, no staff should normally be kept in the same wing for a period exceeding five years and rotation to another group within a shorter period or retention in a particular group beyond five years be allowed only in exceptional circumstance and with the specificorder of the Accountant General/Director of Audit concerned.It is the case of the applicant that her case is not an exceptional one for rotation or transfer within five years and the transfer is not in public interest.

4. The applicant would further contend that frequent orders of transfer, more particularlythe impugned order, is issued with malafide intention and it is violative of Articles 14 and 16 of the Constitution of India; that several persons working in the same seat and place, who are seniors and juniors to the applicant have not been disturbed for several years and the action of the petitioners 3 and 4 herein, in targetingthe applicant, is not only illegal, but malafide and colourable exercise of power.The applicant would further contend that the respondentshave made it appear that it is a mass transfer, but purposely has included the applicants name without transferring seniors or juniors who are working as Senior Auditor in a particular seat or place for several years.

5. The applicant would place reliance on the decision of the Kerala High Court reported in1979 (I) LLJ 139 [P.PUSHPAKARAN Vs. COIR BOARD AND ANOTHER] for the proposition that the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer.The learned counsel further relied upon the decision of the Honble Supreme Court in 1993 (1) SCC page 148 [RAJENDRA ROY Vs. UNION OF INDIA AND ANOTHER], wherein it has been held that it may notbe possible to establish malice in a straight cut manner and in an appropriate case, it is possible to draw reasonable inference of malafide action from the pleading of antecedents facts and circumstances of the case. On these grounds, the applicant contended that the order of transfer is illegal.

6. The respondents before the Tribunal, who are the petitioners herein, had filed a reply statement before the Tribunal, inter alia, contending that the impugned order of transfer is in public interest, considering the exigency of Government service and as such, there is no malafide intention in ordering the transfer.The Department, by placing reliance on the Comptroller and Auditor General Manual of Standing Orders (Administrative), more particularly, para 5. 1, would contend t