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1988 DIGILAW 872 (RAJ)

Sudhir Kumar Chaturvedi v. State of Rajasthan

1988-12-07

N.M.KASLIWAL

body1988
JUDGMENT 1. - This revision by the plaintiff is directed against an order of learned Additional District Judge Dausa dated November 2, 1988 setting aside the order of learned Munsif Dausa dated May 12, 1988. The plaintiff filed a suit on October 31, 1987. Along with the suit he also filed an application for temporary injunction. In the application it was stated that the petitioner was an employee of Ayurved Department for the last three years and at the time of filing the injunction application he was posted as 'Ayurved Chikitsak' at village Bagdi Tehsil Lalsot District Jaipur. It was stated that the petitioner was working with full sincerity and honestly and there was no complaint against him even then the non-petitioners were annoyed with the petitioner without any reason. It was further alleged that some of the persons are having ill-will against the petitioner and Nawal Kishore Gautam non-petitioner No. 4 is one of them. It was further alleged that the non-petitioner Nos. 1 to 3 had made four or five transfers of the petitioner within the last four months on account of annoyance with the petitioner. It was further alleged that the petitioner was posted at Malwas Tehsil Dausa on June 26, 1987. By an order dated June 26, 1987 passed by the Director Ayurved Department the petitioner was ordered to be transferred from Malwas to Chandwas District Udaipur. Thereafter by another order dated August 22, 1987 the petitioner was transferred from Chandwas to village Lawan in district Jaipur. The petitioner had hardly worked for about sixteen days at Lawan another order of transfer was issued by which the petitioner was transferred from Lawan to Chandwas in District Udaipur vide order dated September 7, 1987. Again after ten days on September 17, 1987 the petitioner was transferred to village Bagdi district Jaipur. In pursuance to the above order dated September 17, 1987 the petitioner joined his duties at village Bagdi on September 25, 1987 and Nawal Kishore Gautam non-petitioner No. 4 was relieved from Bagdi on October 1, 1987. It was further alleged that the non-petitioner No. 4 was declaring openly that he would get his transfer cancelled and see that the petitioner is sent back to Chandwas district Udaipur and also gave an open threatening that he has got such order issued by making approach to non-petitioner Nos. It was further alleged that the non-petitioner No. 4 was declaring openly that he would get his transfer cancelled and see that the petitioner is sent back to Chandwas district Udaipur and also gave an open threatening that he has got such order issued by making approach to non-petitioner Nos. I to 3 and the petitioner should be ready for his transfer to Chandwass. It was further alleged that such transfer of the petitioner five times within a span of four months clearly showed that these transfers have not been made on account of any administrative reasons but were made on account of ill-will and collateral reasons. The trial court on the above application passed an ex parte interim order in favour of the petitioner on November 4, 1987. 2. The non-petitioners after service appeared and submitted reply to the application for temporary injunction. The non-petitioner Nos. 1 to 3 in their reply submitted that there was no annoyance or ill-will at all towards the petitioner. It was alleged that the transfer of the petitioner to Lawan and Bagdi was made on account.of the desire of the petitioner himself. It was further alleged that the petitioner never joined his duties at Chandwas (Udaipur). It was further alleged that though the petitioner had started working on September 25, 1987 at village Bagdi and Nawal Kishore Gautam was relieved by him on October 1 1987 but no relieving order could have been given to Nawal Kishore as he had gone on leave. It was further alleged that the petitioner had no right to challenge the orders of transfer which were passed in the public interest and for administrative reasons. It was also submitted in the additional pleas that in compliance of the order of the State Government dated October 29, 1987 the petitioner has been relieved from his post at Bagdi to join at Chandwas (Udaipur) on October 30, 1987. The suit and the application for temporary injunction were filed after October 30, 1987 and as such there was no question of passing an injunction order in favour of the petitioner now. The suit and the application for temporary injunction were filed after October 30, 1987 and as such there was no question of passing an injunction order in favour of the petitioner now. It was also alleged that the non-petitioner No. 4 Nawal Kishore Gautam is working in place of the petitioner in Ayurved Chikitsalaya Bagdi and as such there was no prima facie case or balance of convenience in favour of the petitioner and the application for temporary injunction was liable to be dismissed. 3. The trial court by order dated May 12, 1988 allowed the application for temporary injunction in favour of the plaintiff and gave the following directions in the last operative part of the order which reads as under: HINDI MATTER 366822 4. Nawal Kishore non-petitioner No. 4 aggrieved against the order of learned Munsiff filed an appeal. The appeal was allowed by the learned Additional District Judge by order dated November 2, 1988. The plaintiff aggrieved against the order of learned Additional District Judge has filed the present revision. 5. Mr. N.L. Jain learned counsel for the petitioner contended that the learned lower Appellate Court had no justification to interfere in the discretionary order passed by the learned Munsiff when the order passed by the learned Munsiff was based on sound and adequate grounds. It was submitted that the learned Additional District Judge wrongly interfered in the order of the Munsiff on the ground that the petitioner had not alleged any grounds of malafides against the Chief Minister on whose desire the order of transfer dated October 29, 1987 was passed. It was submitted that it was not the case of the petitioner that the Chief Minister gave any direction mala fide or on account of any ill-will against the petitioner. On the other hand the case of the petitioner was that the circumstances in which the four orders of transfers have been passed within a short span of four months are themselves sufficient to show the mala fide action on the the part of the non-petitioners. It was also argued by Mr. Jain that the order transferring the petitioner to a distance of about 600 kms. was itself a mala fide order. It was also argued by Mr. Jain that the order transferring the petitioner to a distance of about 600 kms. was itself a mala fide order. It was also submitted that a reply was sought by the trial court on certain questions and Mahavir Prasad Sharma Officer-in-charge of this case on April 221988 submitted a written reply in which it has been admitted that out of the five transfers four were made at the desire of the Minister for Ayurved and the fifth transfer at the desire of the Chief Minister. It was thus argued that the orders passed at the desire of the Hon'ble Minister for Ayurved Department or the Chief Minister are perse illegal was transfers of Government servants should not be made at desire of the Ministers. It was also contended that inspite of giving full opportunity the non-petitioners were unable to produce any orders in writing showing the desire of the Minister for Ayurved or the Chief Minister in respect of the transfer orders. It was thus argued by Mr. Jain that the civil court was competent to interfere in the orders of transfer if the same are made on account of some extraneous and collateral reasons and based on mala fide grounds. Reliance in support of the above contention was placed on (1) Asu Singh Vs. State of Rajasthan (1984 RLR 143 = 1983(3) SLR 783) . 6. On the other hand it was contended by Mr. Maloo learned counsel for the non-petitioner No. 4 that the petitioner was first transferred by an order dated June 26, 1987 from Malwas in Jaipur District to Chandwas in Udaipur District. The petitioner did not join at Chandwas and manipulated in getting the above order cancelled by an order dated August 22 1987. It is submitted that while getting the order of transfer cancelled the petitioner by his own desire got his transfer to Lawan in Jaipur District which was a nearby place and also joined at Lawan on August 25, 1987. It was further argued by Mr. Maloo that thereafter the transfer of the petitioner to Lawan was cancelled and again his posting was made to Chandwas by order.dated September 7, 1987. The petitioner again did not obey the order of transfer nor joined at Chandwas and again got his order of transfer cancelled by another order dated September 17, 1987. It was further argued by Mr. Maloo that thereafter the transfer of the petitioner to Lawan was cancelled and again his posting was made to Chandwas by order.dated September 7, 1987. The petitioner again did not obey the order of transfer nor joined at Chandwas and again got his order of transfer cancelled by another order dated September 17, 1987. By this order dated September 17, 1987 the petitioner was ordered to be transferred at Bagdi in Tehsil Lalsot District Jaipur. It was submitted that this transfer was also made at the request and desire of the petitioner himself and as such in the order of transfer itself he was not allowed any travelling allowance as the same was made at his desire. It was further submitted that from September 17, 1987 there was a clear ban on transfers of any Government servants and as such the order dated September 17, 1987 was clearly in violation of the Government order banning transfers. The non-petitioner Nawal Kishore who was posted at Bagdi and in whose place the plaintiff Sudhir Kumar was appointed by order dated September 17, 1987 being illegal the non- petitioner was right in approaching the Chief Minister. It was submitted that the Chief Minister rightly considered the complaint of the non-petitioner Nawal Kishore and thereafter the Government by order dated October 29, 1987 redressed the grievance of Nawal Kishore and cancelled the order dated 17th September, 1987. It was submitted that till the order dated September 17, 1987 no other orders were affecting the non-petitioner Nawal .Kishore and as such he was not concerned by the previous orders and when the order dated September 17, 1987 affected him then he approached the Hon'ble Chief Minister and there was nothing wrong in passing the order dated October 29, 1987. It was also submitted by Mr. Maloo that the non-petitioner after the order dated October 29, 1987 continued on his posting at Bagdi and since then he is continuing or that post and getting his due salary. It was also submitted that in the matters of transfer of the Government servants the civil court can only interfere in rare case and only when such orders are passed to achieve any collateral purpose. It was also submitted that in the matters of transfer of the Government servants the civil court can only interfere in rare case and only when such orders are passed to achieve any collateral purpose. It is submitted that in the present case no such ground has been alleged or proved and as such the plaintiff petitioner has no case of injunction in his favour. Reliance in support of the above contention is placed on (2) Ramcharan Das Vs. State of Rajasthan & Ors. (1986 RLR 680) . Learned Additional Government Advocate has also supported the contention of Mr. Maloo and has justified the order passed by the learned Additional District Judge. 7. I have considered the arguments advanced by learned counsel for the parties and have also perused the record. The plaintiff was working as Ayurved Chikitsak at Malwas in Jaipur district. He was first of all transferred from Malwas to Chandwas in Udaipur District by order dated June 26, 1987. There is no dispute that the petitioner did not join at Chandwas in pursuance of the above transfer order and subsequently that order was cancelled on August 22, 1987 and the petitioner was posted at Lawan in Jaipur District. Thus so far as this order of August 22, 1987 is concerned it was in the interest of the petitioner himself and it appears that it must have been made on the representation of the petitioner himself as he had not joined at Chandwas nor he was happy with his transfer to Chandwas in Udaipur district. The third order was passed on September 7 1987 by which the petitioner was again transferred from Lawan to Chandwas and admittedly the petitioner did not join at Chandwas in pursuance of this transfer order also and then again the fourth order was passed on September 17, 1987 by which the petitioner was again posted at Bagdi in Tehsil Lalsot which also lies in Jaipur District. This order also admittedly was passed in the interest of the petitioner and as such there can be no grievance on the part of the petitioner with regard to this fourth transfer order. Not only that the petitioner by the present suit is claiming his right to remain at Bagdi. This last order of transfer of the petitioner at Bagdi was subsequently cancelled at the desire of the Chief Minister as alleged by non-petitioner Nawal Kishore. Not only that the petitioner by the present suit is claiming his right to remain at Bagdi. This last order of transfer of the petitioner at Bagdi was subsequently cancelled at the desire of the Chief Minister as alleged by non-petitioner Nawal Kishore. The entire narration of the above facts clearly go to show that only one transfer of the petitioner from Malwas to Chandwas which was originalty made on June 26, 1987 was against the interest of the petitioner and which was though reiterated from time to time but was cancelled by the subsequent orders. Now by the order dated October 29, 1987 and October 30, 1987 the resultant position is this that the petitioner has been asked to join at Chandwas in Udaipur district. Thus in my view there is only one transfer order during all this period which has been passed against the petitioner and which has not been complied with so far. As already mentioned above the two orders dated August 22, 1987 posting the petitioner at Lawan and dated September 17, 1987 posting the petitioner at Bagdi were in favour of the petitioner himself and made on his own request and it is futile on the part of the petitioner to contend that he had been transferred to four places within a short span of four months. 8. Admittedly there is not the slightest allegation of any malafides or any facts leading to the interference that the order of the petitioner transferring him to Chandwas in Udaipur district has been passed on account of any collateral or extraneous reasons. Learned counsel for the plaintiff petitioner was unable to show any circular or order of the Government that the petitioner could not have been trnasferred to Chandwas in Udaipur district or such order of transfer was in violation of any instructions or policy issued by the government. Now so far as the order dated October 29, 1987 is concerned prima facie there does not appear to be any ground of illegality in the said order and as such if non-petitioner No. 4 Nawal Kishore has been allowed to continue at Bagdi there is no prima facie case nor the balance of convenience to interfere in such order. Now so far as the order dated October 29, 1987 is concerned prima facie there does not appear to be any ground of illegality in the said order and as such if non-petitioner No. 4 Nawal Kishore has been allowed to continue at Bagdi there is no prima facie case nor the balance of convenience to interfere in such order. Now so far as the transfer of the petitioner to Chandwas is concerned prima facie I do not find any illegality in such order to make any interference by the civil court on an application filed under Order 39 Rule 1 and 2 C.P.C. The transfer of a Government servant is an exigency of the service and in the present case there is no material at all to hold that the transfer of the petitioner to Chandwas is based on any mala fides or collateral considerations or such order is in violation of any statute or instructions or orders issued by the Government. 9. In view of the above circumstances I find no force in this revision as the order passed by the learned Additional District Judge is fully proper and justified in the facts and circumstances of the present case and there is no error of jurisdiction committed by the learned Additional District Judge so as to call for any interference by this court in the exercise of revisional jurisdiction. 10. During the course of arguments the order dated October 29, 1987 was perused and by this order the transfer of Nawal Kishore to Chandwas was cancelled and he was ordered to continue at Bagdi. However there was no specific order issued in respect of the petitioner Sudhir Kumar regarding his fresh posting. Learned Addtional Government Advocate in this regard brought to the notice of the court an order dated October 30, 1987 by which he wanted to urge that on account of the order dated October 29, 1987 automatically the order dated September 17, 1987 posting the petitioner Sudhir Kumar at Bagdi was cancelled and his earlier order of transfer to Chandwas came into effect. In my view unless a clear order was issued in case of the petitioner Sudhir Kumar about his posting to Chandwas in Udaipur district or to any other place the petitioner was justified in not joining at Chandwas. In my view unless a clear order was issued in case of the petitioner Sudhir Kumar about his posting to Chandwas in Udaipur district or to any other place the petitioner was justified in not joining at Chandwas. The order dated September 7, 1987 transferring the petitioner from Lawan to Chandwas had been cancelled by order dated September 17, 1987 and he was posted at Bagdi. Now by order dated October 29, 1987 the order of transfer of Nawal Kishore from Bagdi had been cancelled but no direction was given for the petitioner. The non-petitioners would now issue an appropriate order regarding the posting of the petitioner Sudhir Kumar. In view of the long period having passed from the date of the filing of the suit till now the non-petitioners would now consider sympathetically for the posting of the petitioner at some place in Jaipur district if the same is now available and the petitioner can be adjusted to such place considering the administrative exigencies. It is also made clear that after the above order is passed the petitioner would immediately join at such place of posting and his case for salary during the intervening period would be decided sympathetically according to law. 11. With the above observations this revision having no force is dismissed.Revision dismissed. *******