The main legal point established in the judgment is that transfer is an essential condition of service, and the court cannot interfere with transfer/posting unless it is in contravention of statutory rules or passed on mala fides.

( 1 ) THIS special appeal has been filed against the judgment and order dated 2. 11. 2004 of the learned Judge disposing of the Writ Petition No. 46. 40 of 2004 filed by the petitioner against the order of transfer dated 11. 10. 2004 by directing that the petitioner will be permitted to remain in varanasi up to 31st May, 2005 considering the interest of children who are of the school going age in view of the undertaking given by the learned counsel for the petitioner on behalf of his client.

( 2 ) SHRI M. D. Mishra, learned counsel for the appellant has submitted that petitioner-appellant is a class IV employee and he could bot be transferred in view of the transfer policy unless he has prayed in writing for transfer or he is being promoted; petitioner-appellant belongs to the scheduled Tribes and therefore, as per the Government Order contained in Annex. 2a, it was not permissible to transfer him; petitioner-appellant had been transferred in the mid academic session which had adversely affected the education of his children; transfer is because of mala fide of the higher authorities because of the fact that petitioner is a Scheduled Tribe candidate and other persons are having malice against him. He, therefore, submits that the impugned order of transfer is liable to be quashed and the judgment and order of the leaned Single Judge deserves to be set aside.

( 3 ) ON the contrary, Shri Ramendra Pratap Singh, leaned counsel appearing for the respondents has submitted that petitioner is an employee of the Corporation and the Corporation has not been impleaded as a party. Reliance placed by the petitioner-appellant on transfer policies is misconceived as these do not create any legal or justifiable right in Court; the certificate shows that his daughter is a student of Class X in Intermediate College Babusarai, Sant Ravi Dass nagar, Bhadohi and, therefore, his daughter is not studying in Varanasi, though his son is studying in Varanasi. More so, the said transfer policy merely provides that low paid employee should not normally be transferred, and similarly, the Government Orders in respect of the scheduled Tribes employees provides that as far as possible they may not be transferred unless a request is made by them or they are promoted. Petitioner-appellant had earlier been transferred from Rewa a Varanasi after serving at Rewa for 12 years but he did not raiser any grievance against the said order. Allegations of mala fides against the higher officers have been levelled without any sense of responsibility as no officer had been impleaded by name. In paragraphs 13 and 14 of the Affidavit accompanying Stay Application in the Special Appeal, allegations have been made of non-compliance of the order passed by the learned Single Judge, for which he had filed the contempt proceedings and relief was granted to him. Thus, the appeal is liable to be dismissed.

( 4 ) WE have considered the rival submissions made by the learned counsel for the parties and perused the record.

( 5 ) ADMITTEDLY, petitioner-appellant is an employee of the corporation which had not been impleaded as a respondent, and on that ground writ petition ought to have been rejected. In view of the judgement to the Honble Apex Court in The State of Punjab v. Okara Grain Buyers syndicate Ltd. , Okara and Anr. AIR 1964 SC 669; Ranjeet Mal v. General Manager, Northern railway, New Delhi and Anr. AIR 1977 SC 1701; and Chief Conservator of Forests, government of A. P. v. Collector and Ors. , (2003) 3 SCC 472. However, as Shri Mishra prays that he may be given time to implead the Corporation as a party, the appeal is not to be rejected on this ground. In such an eventuality, the party can be impleaded even at the stage of the appeal as held by the Supreme Court in Bal Niketan Nursery School v. Kesari Prasad, AIR 1987 SC 1970.

( 6 ) THE issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena