Jitendar Kumar Chaudhary S/o Jitendra Prasad v. State of Rajasthan, Through The Principal Secretary, General Administration Department, Jaipur
2020-01-02
DINESH MEHTA
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JUDGMENT : 1. By way of the present writ petition, the petitioner has challenged the order dated 30.09.2019, vide which he has been transferred from Circuit House Jodhpur to Circuit House, Pali. 2. The premise on which the petitioner has challenged such transfer order is that the petitioner, a Manager Grade-I cannot be transferred to station/place, where the Circuit House are required to be managed by Manager Grade-II. 3. Mr. Devendra Khatri, learned counsel for the petitioner invited Court’s attention towards Note No.1 appended with the order dated 01.11.2012 issued by the State Government and contended that at the Divisional Headquarters; Rajasthan House; Jodhpur House; Circuit House/Guest House; Rajasthan State Guest House; Delhi; are required to be managed by Managers Grade-I, and in the same lines Managers Grade-I cannot be posted to a place other than those earmarked for Manager Grade-I. 4. Learned counsel for the petitioner, thus, argued that petitioner’s transfer from Circuit House, Jodhpur to Circuit Pali is arbitrary and contrary to Government order dated 01.11.2012 and hence, liable to be quashed. 5. Mr. Khatri relied upon judgment of this court in Dr. Arun Chauhan Vs. State of Rajasthan & Ors. reported in (2005) 2 WLC 719 to lend support to petitioner’s cause. 6. Mr. M.S. Singhvi, learned Advocate General, appearing on behalf of the respondent State at the outset argued that the transfer is an incidence of service and contended that the order dated 01.11.2012 is only administrative in nature. He submitted that the stipulation made in the order dated 01.11.2012, issued by the State Government is having no statutory force behind it and since it was issued for administrative exigencies, it cannot be said to be mandatory. 7. It was also argued that prior to his promotion to the post of Manager Grade-I in the year 2019, petitioner himself was posted at Jodhpur, which post is purportedly meant for Manager Grade-I. He submitted that since the order dated 01.11.2012 is having no statutory force, the State can take detour, considering administrative exigency. 8. Relying upon the judgment of Hon’ble the Supreme Court in Mrs. Shilpi Bose & Ors. Vs. State of Bihar & Ors. reported in AIR 1991 SC 532 he urged that the High Court should not interfere in the matters relating to transfer until and unless there is a breach of statutory rules or allegations of malafide. 9.
8. Relying upon the judgment of Hon’ble the Supreme Court in Mrs. Shilpi Bose & Ors. Vs. State of Bihar & Ors. reported in AIR 1991 SC 532 he urged that the High Court should not interfere in the matters relating to transfer until and unless there is a breach of statutory rules or allegations of malafide. 9. While maintaining that the order dated 01.11.2012 is not mandatory, it was pointed out that the same has been amended by the State Government and vide Government order dated 31.01.2019, note No.1 appended with the order dated 01.11.2012 has been deleted. 10. In light of the subsequent amendment, Mr. Singhvi, learned Advocate General argued that even if it is assumed that there is some deviation from the order of the State Government dated 01.11.2012 the petitioner cannot claim it as a matter of right that he be posted at place meant for manager Grade-I, as the Government Order dated 01.11.2012 has been amended and note No.1 deleted. 11. Heard. 12. Argument advanced by Mr. Khatri that Pali is not a Divisional Headquarter and the Circuit House at Pali is not required to be manned by Manager Grade-I, hence petitioner cannot be posted at Pali, appears to be attractive. However, a deeper probe into the factual and legal matrix shows that order dated 01.11.2012 is not statutory and hence, can neither be treated mandatory nor can the same be enforced. 13. The petitioner himself was posted at Jodhpur – a Circuit House meant to be headed by a Manager Grade-I before he was promoted from Manager Grade-II to Manger Grade-I in the year 2019 itself. It does not, therefore, lie in the mouth of at least the petitioner to raise a grievance that he being a Manager Grade-I cannot be posted to a smaller town, as he himself had been a beneficiary of the deviation from the subject order dated 01.11.2012. 14. That apart, the order dated 01.11.2012 has been amended by the respondent State vide its recent order dated 31.10.2019 and the note appended has been obliterated. Petitioner’s contention that he cannot be posted at a place not earmarked for Manager Grade-I has lost its worth. Even if the order impugned is quashed and respondents are asked to pass a fresh order, they can well place the petitioner at any place in view of the amendment order dated 31.10.2019. 15.
Petitioner’s contention that he cannot be posted at a place not earmarked for Manager Grade-I has lost its worth. Even if the order impugned is quashed and respondents are asked to pass a fresh order, they can well place the petitioner at any place in view of the amendment order dated 31.10.2019. 15. Further more, taking cue from the judgment of Hon’ble the Supreme Court in the case of Mrs. Shilpi Bose (supra), this Court is of the considered view that writ, as prayed cannot be issued as the order dated 01.11.2012 is not statutory and petitioner has no subsisting right to continue on a particular place of posting. 16. So far as judgment of this Court in Dr. Arun Chauhan(supra) is concerned, there is significant distinction in the facts involved in that case vis-a-vis facts of the present case -In case of Dr. Arun Chauhan, Dr. Vijay Laxmi Sharma, the writ petitioner, a Senior Specialist at M.G. Hospital Bhilwara was transferred to Bijolya as against her, a Junior Specialist was transferred from Asind to Bhilwara. 17. Considering facts of this case, the Division Bench upheld the decision of learned Single Judge and held that a Junior Specialist, cannot oust a Senior Specialist, particularly when she has been posted at District Headquarter holding charge of Principal Medical Officer. As against this, facts in the present case are that petitioner has been replaced by Shri Sharad Bansal a Manager Grade-I. 18. According to this Court, even going by the order dated 01.11.2012, a Manager Grade-II cannot be posted at Circuit House(s) earmarked or meant to be headed by Manager Grade-I; but its inverse is not true. A Manager Grade-I can definitely be posted at smaller Circuit Houses, if circumstances so warrant. 19. A person holding a higher or senior position can be posted to a smaller place or less important/strategic post, subject of course to protecting his pay and other emoluments. 20. Neither any allegations of malafide have been levelled nor any infraction of statutory rule has been shown. It is also not in dispute that petitioner’s pay and other benefits have remained intact and there is no loss or injury to the petitioner. 21. Petition lacks merit and substance. Hence, it is, hereby, dismissed, however, without any order as to costs. 22. Stay petition is also dismissed.