Jagdish Prasad Sharma v. Rajasthan State Social Welfare Advisory Board
1993-08-18
M.C.JAIN
body1993
DigiLaw.ai
JUDGMENT 1. - This revision petition has been filed under Section 115, Civil Procedure Code against the order of the learned District Judge, Bikaner dated July 28, 1993 by which he has allowed the appeal and set aside the order of the learned Munsif, Bikaner dated July 22, 1993, directing the defendant- respondents No. 1 and 2 to allow the petitioner-plaintiff Jagdish Prasad to continue to work at Bikaner and defendant-respondent Radhey Shyam to work at Balotra. The facts of the case giving rise to this revision petition may be summarised thus. 2. The plaintiff Jagdish Prasad and defendant Radhey Shyam are in the service of the Government of Rajasthan as Junior Accountants. The plaintiff Jagdish Prasad is posted in Social Welfare Department, Pungal, Bikaner for over five years and the defendant Radhey Shyam is posted at Balotra for over 21/2 years. By order dated May 21, 1993, their postings were exchanged. Thereon the plaintiff filed a suit for permanent injunction and moved an application for temporary injunction. All the these defendants filed their replies seriously opposing the application for temporary injunction. After hearing the learned counsel for the parties, the learned Munsif allowed the application by its order dated July 22, 1993 and on appeal it was set aside by the learned District Judge as said above. 3. It has been contended by the learned counsel for the plaintiff-petitioner that the learned District Judge has acted with material irregularity and illegality in exercise of his jurisdiction in allowing the appeals of the defendants and setting aside the said order of the learned Munsif. He contended that the learned District Judge did not consider all the material on record and the record perused was not properly considered. He also did not consider that the defendant Radhey Shyam was not a fit person and three departmental enquiries are pending against him. He further contended that the defendant Radhey Shyam was transferred to Bikaner on his own request on the ground that his daughter is a cancer patient, she required treatment either at Jaipur or Bikaner and he has been granted Rs. 2 lacs for this purpose and in fact his daughter is servicing as a teacher at Balotra and she would be taken to Bombay for her treatment.
2 lacs for this purpose and in fact his daughter is servicing as a teacher at Balotra and she would be taken to Bombay for her treatment. He lastly contended that it is well proved from the material on record that the said transfer order was passed simply to accommodate the defendant Radhey Shyam at Bikaner. 4. There is no substance in the revision petition. The learned District Judge has stated in paras No. 6 and 7 of his order that the plaintiff Jagdish Prasad is posted at Bikaner for last five years. This fact has not been challenged in the revision petition. A Government employee has no right to continue to remain at particular place beyond certain period. It is the policy of the Government to effect transfer after about 3 years. There is nothing on the record to indicate as to what right the plaintiff-petitioner has to continue to remain at Bikaner for over five years. When he has no right to remain at Bikaner, there is no question of any prima facie case in his favour. 5. The learned District Judge has discussed the matter thoroughly and carefully. Transfer of a Government servant at a place where his daughter may get better facilities for her treatment/after care particularly when the incumbent of that post has completed five years cannot be said to be in any way mala fide. He has rightly said that Jagat Prakash Yadav v. State of Rajasthan, 1990 (1) RLR 171 is not applicable in this case. It has not been pointed out as to what material has not been considered by the learned District Judge. He has also observed that the plaintiff Jagdish Prasad has not alleged either in his plaint or application or affidavit that the transfer has been effected on account of mala fide intention. It has been observed in Union of India v. N.P. Thomas, 1994(1) SCT 46 (SC) : AIR 1993 Supreme Court 1605 at page paras 6, 7 and 8 as follows:- ''6. In H.N. Kirtania's case ( AIR 1989 Supreme Court 1774), it has been held that when the transfer order is legal and not vitiated by any unfairness and mala fide the Tribunal had no jurisdiction in issuing directions. 7.
In H.N. Kirtania's case ( AIR 1989 Supreme Court 1774), it has been held that when the transfer order is legal and not vitiated by any unfairness and mala fide the Tribunal had no jurisdiction in issuing directions. 7. In Shilpi Bose's case ( AIR 1991 Supreme Court 532), the Court observed thus (para 4):- ''In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do no violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities there will be complete chaos in the administration which would not be conducive to public interest.'' 8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion.'' 6. The jurisdiction of this Court under Section 115, Code of Civil Procedure is very limited. It has been observed in Hindustan Aeronautics Ltd. v. Ajit Prasad, AIR 1973 Supreme Court 76 para 5, as follows : ''In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court.
The jurisdiction of this Court under Section 115, Code of Civil Procedure is very limited. It has been observed in Hindustan Aeronautics Ltd. v. Ajit Prasad, AIR 1973 Supreme Court 76 para 5, as follows : ''In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law, but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code. See the decision of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, 1966 (1) SCR 102 ( AIR 1966 Supreme Court 153), and D.L.F. Housing & Construction Co. (P.) Ltd., New Delhi v. Sarup Singh, 1970 (2) SCR 368 ( AIR 1971 Supreme Court 2324). '' 7. Consequently, the revision petition is summarily dismissed. *******