Pradeep Kumar S/o Prabhati Lal v. State of Rajasthan
2018-07-27
P.K.LOHRA
body2018
DigiLaw.ai
ORDER : 1. By the instant writ petition, petitioner has challenged impugned order dated 10th of July, 2018 (Annex.3) whereby he is transferred as Medical Officer from PHC Shishod, Dungarpur to CHC Bhinder, Udaipur and the subsequent order dated 20th of July 2018 (Annex.4), whereby he is relieved from Dungarpur pursuant to order Annex.3. 2. Precisely, to assail the impugned orders, petitioner has taken shelter of following condition incorporated in the appointment order dated 5th of October, 2015 (Annex.1): ^^,eŒchŒchŒ,lŒ ¼ukWu ihth½ fpfdRld dks fu;qfDr frfFk ls de ls de 03 o"kZ dh xzkeh.k lsok djuh vfuok;Z gSA** 3. At the outset, it may be observed that the said condition cannot furnish a plausible ground to the petitioner for assailing impugned order Annex.3, which is a general transfer order, issued by competent authority to meet administrative exigencies. A bare perusal of order Annex.3 makes it abundantly clear that by the said order in all 764 doctors are transferred from one place to another and it is not the petitioner alone who has been singled out for transfer. After examining the above quoted condition, in my opinion, same cannot be construed as a substantial ground to challenge the transfer order because the said compulsory rural services of 3 years is prescribed by the Government for the employee/Doctor concerned. To put it more clear in terms of the condition, any MBBS Non-PG doctor cannot refuse to serve rural areas for at least three years. However, upon construing the said condition, it is rather difficult to comprehend that same is enforceable vis-a-vis administration so as not to disturb the incumbent Non-PG doctors from rural posting for three years. There remains no quarrel that transfer is an incidence of service and an incumbent working on a transferable post can be shifted from one place to another to meet administrative exigencies. 4. Constitution Bench of Supreme Court in E.P. Royappa Vs. State of Tamil Nadu & Ors. [ (1974) 4 SCC 3 ] declined to interfere with the order of transfer under Article 32 on mere violation of a rule. Speaking for the Bench, in his concurring judgment, Hon’ble Bhagwati, J., as he then was, observed: “The order dated 27th June, 1972 in any event did not contain any declaration as to equivalence in "responsibility".
[ (1974) 4 SCC 3 ] declined to interfere with the order of transfer under Article 32 on mere violation of a rule. Speaking for the Bench, in his concurring judgment, Hon’ble Bhagwati, J., as he then was, observed: “The order dated 27th June, 1972 in any event did not contain any declaration as to equivalence in "responsibility". There was thus no compliance with the requirement of Rule 9, Sub-rule (1) and the appointment of the petitioner to the post of Officer on Special Duty was accordingly be liable to be held invalid for contravention of that sub-rule. But we cannot in this petition under Article 32 give relief to the petitioner by sinking down his appointment to the post of Officer on Special Duty, as mere violation of Rule 9, Sub-rule (1) does not involve infringement of any fundamental right.” The Court further held: “The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new posts does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Articles 14 and 16.” 5. In a subsequent verdict, Union of India & Ors. Vs. S.L. Abbas [ (1993) 4 SCC 357 ], Supreme Court refused to interfere with the order of transfer in absence of mala fide or sans violation of statutory provisions. The Court held: “An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute.
Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by malafides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief to his immediate superior who had nothing to do with his transfer. AH he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee as a legally enforceable right.” 6. Supreme Court, in State of U.P. Vs. Siya Ram & Ors. [ (2004) 7 SCC 405 ], while examining scope of judicial review in the matter of transfer, has reiterated the same principle. The Court further observed: “No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration.
Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned.” 7. Therefore, in the backdrop of facts and circumstances of the instant case and the law enunciated by various authoritative pronouncements governing scope of judicial review in the matter of transfer, no interference with the order of transfer is called for. 8. Now adverting to extraordinary jurisdiction of this Court, suffice it to observed that Supreme Court has time and again emphasized that jurisdiction of High Courts under Article 226 is corrective and supervisory in nature and not appellate. In Shama Prashant Raje Vs. Ganpatrao and Ors. [ (2000) 7 SCC 522 ], the Apex Court has described the nature of High Courts’ jurisdiction under Article 226, as follows: “The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made.” 9. There is yet another aspect of the matter that against the impugned order of transfer equally efficacious statutory alternative remedy is available to the petitioner in the form of an appeal before the Rajasthan Civil Services Appellate Tribunal. It is trite that when under the relevant law a provision exists for appeal from the decision making authority to higher authority or a Tribunal, or a Court, the writ petition challenging the order of lower authority will invariably be rejected. The statutory appeal, thus, may be characterized as an appeal as of right. 10. The principle of exhaustion of remedies is recognized by the Supreme Court way back in the year 1957 in case of Union of India Vs. T.R. Varma ( AIR 1957 SC 882 ).
The statutory appeal, thus, may be characterized as an appeal as of right. 10. The principle of exhaustion of remedies is recognized by the Supreme Court way back in the year 1957 in case of Union of India Vs. T.R. Varma ( AIR 1957 SC 882 ). The underlying idea of principle of exhaustion of remedies before taking recourse to extraordinary remedy under Article 226 is to maintain the sanctity of statutory provisions and not to render statutory provisions almost meaningless and non-existent. The Court held: “It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ, but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs . . . And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor. 11. In State of U.P. & Ors. Vs. Labh Chand [ (1993) 2 SCC 495 ], challenge by a Government servant to his compulsory retirement order was thwarted by the High Court by rejecting his writ petition under Article 226 of the Constitution on the ground that alternative remedy is available to him before the U.P. Service Tribunal. The Supreme Court, while affirming the verdict of High Court, observed: “When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution.” 12. The judgments of the Supreme Court in Popcorn Entertainment & Anr. Vs. City Industrial Development Corpn. & Anr. [ (2007) 9 SCC 593 ] and Mariamma Roy Vs. Indian Bank & Ors. [ (2009) 16 SCC 187 ], on which learned counsel for the petitioner has placed reliance, are clearly distinguishable in the facts and circumstances of the instant case.
The judgments of the Supreme Court in Popcorn Entertainment & Anr. Vs. City Industrial Development Corpn. & Anr. [ (2007) 9 SCC 593 ] and Mariamma Roy Vs. Indian Bank & Ors. [ (2009) 16 SCC 187 ], on which learned counsel for the petitioner has placed reliance, are clearly distinguishable in the facts and circumstances of the instant case. There remains no quarrel that in case of transfer of an employee, neither principles of natural justice are violated nor such order infringes Article 14 & 16 of the Constitution. 13. In view of foregoing discussion, no interference with the mpugned order is warranted on merits as well as availability of tatutory alternative remedy. 14. Resultantly, petition fails and is dismissed in limine.