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2009 DIGILAW 2535 (RAJ)

Subhash Chandra Saharan v. State of Rajasthan

2009-12-14

PRAKASH TATIA

body2009
JUDGMENT 1. - Heard learned counsel for the parties on the application under Article 226(3) of the Constitution of India which has been filed by the respondent-State and on the preliminary objection raised by the learned counsel Mr. V.K. Mathur about maintainability of the writ petition which is supported by the respondent-State also. 2. As per the facts stated by the learned counsel for the petitioner herself, the petitioner was posted as a Secretary, Krishi Upaj Mandi, Bikaner and that was a Grade-A society. The petitioner was transferred vide order dated 1.10.2009 to the post of Secretary, Krishi Upaj Mandi, Abu Road and that society was Grade-D society and the petitioner could not have been sent to that lower cadre society. The petitioner challenged the order dated 1.10.2009 by preferring appeal before the Rajasthan Civil Services Appellate Tribunal, which came to be allowed vide order dated 14.10.2009. However, the Tribunal, instead of quashing the order of transfer dated 1.10.2009, stayed the operation of the order dated 1.10.2009 and directed the petitioner to submit representation before the competent authority. The petitioner accepted that order and submitted representation dated 22.10.2009, copy of which has been placed on record. The State Government vide order dated 23.10.2009, accepted the petitioner's plea and cancelled the transfer order dated 1.10.2009. Therefore, the petitioner succeeded in first round and got full relief, may not be from the Tribunal but from the State Government, which is in pursuance of the Tribunal's order dated 14.10.2009, as the petitioner was permitted to submit representation by the Tribunal. On the same day, i.e. on 23.10.2009, another transfer order has been passed by the respondent transferring the petitioner from Bikaner to the post of Assistant Director in the Directorate at Jaipur. The petitioner, now, by way of this writ petition, has challenged the order dated 23.10.2009. 3. On 26.10.2009, it was argued that the order dated 23.10.2009 has been passed purporting to be in pursuance of the direction of the Tribunal dated 14.10.2009, whereas no such direction was given by the Tribunal to the respondent to transfer the petitioner on the post of Assistant Director in the Directorate at Jaipur. The interim order, therefore, was passed staying the operation of the order dated 23.10.2009. 4. The interim order, therefore, was passed staying the operation of the order dated 23.10.2009. 4. The respondent's contention is that the writ petition of the petitioner is not maintainable, as the petitioner challenged the order dated 23.10.2009 and for that purpose, effective alternative remedy is available to the petitioner, which the petitioner availed on earlier occasion and was successful in challenging the order of his transfer. It is also submitted that the petitioner cannot challenge the order of Tribunal, as projected to have been challenged in the writ petition so as to make this remedy from this Court available to the petitioner because of the reason that the petitioner complied with the directions issued in the order of the Tribunal dated 14.10.2009 and took the benefit of cancellation of his earlier transfer order dated 1.10.2009 and, therefore, nothing survives to challenge the order dated 14.10.2009 and if the petitioner wants to challenge the order dated 14.10.2009, then if petitioner's plea is accepted, then the order dated 23.10.2009 cancelling petitioner's transfer from Bikaner to Mount Abu is required to be cancelled and that will be not only self-destructive to the petitioner's interest but shall be contrary to the petitioner's own stand that the petitioner cannot be transferred to Grade-D society. 5. I considered the submissions of the learned counsel for the parties and perused the impugned orders. 6. It is true that the petitioner was transferred from Bikaner to Mount Abu and that was found to be on the lower grade and the petitioner successfully challenged the said transfer order and got the relief when the respondent passed the order dated 23.10.2009 cancelling the petitioner's transfer order to Mount Abut. This also stands decided with the order dated 23.10.2009. 7. So far as second order dated 23.10.2009 is concerned, this is separate and independent order transferring the petitioner from Bikaner to Jaipur and there is mention that this order has been passed in pursuance of the order of the Appellate Tribunal dated 14.10.2009. Assuming for the sake of argument that the said order may be illegal, even then there is no reason for this Court to entertain the writ petition to challenge any illegal order of the transfer of employee when effective alternative remedy is available to the aggrieved party. Assuming for the sake of argument that the said order may be illegal, even then there is no reason for this Court to entertain the writ petition to challenge any illegal order of the transfer of employee when effective alternative remedy is available to the aggrieved party. The preliminary objection has been raised without any delay, rather say, with promptness and the learned counsel for the petitioner could not satisfy any reason for allowing the petition to bye-pass the said alternative remedy. 8. In view of the above reason, the writ petition of the petitioner is not maintainable because of availability of the alternative remedy. Therefore, the writ petition of the petitioner is dismissed and the interim order passed by this Court dated 26.10.2009 is vacated and the application moved under Section 226(3) of the Constitution of India is allowed.Application Allowed/Writ Petition Dismissed. *******