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2021 DIGILAW 1791 (RAJ)

Manoj Kumar Jain v. State of Rajasthan

2021-09-21

DINESH MEHTA

body2021
ORDER 1. The present writ petition has been preferred against the order dated 12.08.2021 passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as "the Tribunal") in appeal filed by the petitioner being appeal No.1331/2021. 2. The facts briefly stated are, that the respondents issued an order dated 31.12.2020 whereby the petitioner was transferred from Rajkiya Varishth Upadhyaya, Sanskrit Vidhyalaya, Galod, Peeplu, Tonk to Rajkiya Varishth Upadhyaya, Sanskrit Vidhyalaya, Goliya, Jaitmal, Barmer. 3. The petitioner challenged said order by way of an appeal under the provisions of Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (hereinafter referred to as "the Act of 1976"). 4. When petitioner's appeal came up for consideration before the Tribunal on 24.02.2021, the Tribunal was pleased to grant interim order in petitioner's favour while issuing notices and stayed the effect and operation of the order dated 24.12.2020 (sic) and relieving order dated 09.02.2021. 5. While issuing the notices, the Tribunal had directed the petitioner to take out 'dasti' notices for service. It is the case of the petitioner that due to some unavoidable circumstances, counsel for the petitioner could not take out 'dasti' notices. 6. The respondent-Director, however issued an order dated 29.07.2021 and directed the petitioner to join at the transferred place (Rajkiya Varishth Upadhyaya, Sanskrit Vidhyalaya, Goliya, Jaitmal, Barmer) as according to him due to petitioner's/counsel's failure to serve the notices, the interim order had came to an end. 7. Being faced with such a situation, the petitioner moved second stay application before the Tribunal on 05.08.2021, inter alia, stating that petitioner's clerk was quarantined on account of Covid-19, hence, the petitioner could not collect 'dasti' notices. It was prayed that the effect and operation of the subsequent order dated 29.07.2021, issued by the Director be stayed. 8. The Tribunal took up the second stay application filed by the petitioner and instead of passing orders as prayed by the petitioner or deciding the appeal on merit, directed the petitioner to file a representation within a period of 15 days with a simultaneous direction to the respondents to pass speaking order in furtherance of the representation if filed by the petitioner. 9. Mr. Mathur, learned counsel for the petitioner challenging the order dated 12.08.2021 passed by the Tribunal argued that the Tribunal was not justified in directing the petitioner to file a representation instead of deciding the appeal on merit. 10. 9. Mr. Mathur, learned counsel for the petitioner challenging the order dated 12.08.2021 passed by the Tribunal argued that the Tribunal was not justified in directing the petitioner to file a representation instead of deciding the appeal on merit. 10. Inviting Court's attention towards the interim order that was passed by the Tribunal, learned counsel argued that the Tribunal had found a prima facie case and considering the question of law involved, had granted interim order in petitioner's favour. According to him the interim order purportedly came to an end, on account of petitioner's failure to take out 'dasti' notices and thus, it was required of the Tribunal to have considered petitioner's second stay application and revive/restore the interim order dated 24.02.2021. 11. Learned counsel argued that the Tribunal should have issued fresh notices and given it to the petitioner for effecting service on the respondents, and till the service of the notice the interim order dated 24.02.2021 should have been continued. 12. Mr. Gaur, learned AAG for the respondent-State submitted that the transfer order dated 31.12.2020, issued by the respondents was in administrative exigency and the same was passed in furtherance of the directions given by the Division Bench of this Court in DBCWP NO. 1278/2020. 13. He argued that in any case, since the Tribunal has passed an order of submitting representation, it was required of the petitioner to submit the representation, which he has not chosen to do and hence, the petitioner cannot claim indulgence by this Court.14. Having heard learned counsel for the parties and perused the record, this Court is of the considered view that the impugned order dated 12.08.2021 passed by the Tribunal is unsustainable in law. 15. It is not in dispute that by a conscious application of mind, the Tribunal had passed the interim order in petitioner's favour on 24.02.2021. 16. True it is that the petitioner has failed to take out 'dasti' notices, but the petitioner has duly explained the reasons for such lapse. It was required of the Tribunal to have revived the interim order and thereafter it should have issued fresh notices to be served upon the respondents. 17. Instead of issuing fresh notices and waiting for the reply of the respondents, the Tribunal has proceeded to dispose of the appeal with a direction to the petitioner to file a representation. 18. It was required of the Tribunal to have revived the interim order and thereafter it should have issued fresh notices to be served upon the respondents. 17. Instead of issuing fresh notices and waiting for the reply of the respondents, the Tribunal has proceeded to dispose of the appeal with a direction to the petitioner to file a representation. 18. In the opinion of this Court, once an interim order has been passed by noticing contention of the petitioner/appellant, in normal circumstances the Tribunal was required to delve upon the issues raised and arguments advanced and give its judgment on merit. 19. The Tribunal, which is a creation of statute(the Act of 1976) is enjoined upon to decide appeal on its own merits. Section 4 of the Act of 1976, which is reproduced hereunder clearly mandates the Tribunal to decide the appeals on merit. A perusal of sub-Section (2) of Section 4 shows that the Tribunal can confirm, vary or reverse the order against which the appeal is preferred or in appropriate cases it can remand the matter for a fresh decision in accordance with the direction given by it. But it cannot issue a direction to decide a representation and dispose of an appeal. 20. The relevant provisions reads thus: "4. Duties of Tribunal.- (1) The Rajasthan Civil Services Appellate Tribunal shall hear an appeal against the order passed by any officer or authority on any service matter or matters affecting a Government servant in his personal capacity. (2) The Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it." 21. In the opinion of this Court, since the petitioner had challenged the transfer order dated 31.12.2020, the Tribunal could have either allowed the appeal or dismissed the appeal or if deemed appropriate, could have remanded the matter back to the competent authority to pass a fresh order. But then, setting aside of the impugned order is essential. 22. A conjoint reading of Section 4 and 5 of the Act of 1976 clearly suggests that the Tribunal is required to decide each appeal on its merits. The Tribunal does not have any power to issue a mandamus, as it is only an appellate authority created to examine the matters relating to seniority, promotion, confirmation, transfer etc. 22. A conjoint reading of Section 4 and 5 of the Act of 1976 clearly suggests that the Tribunal is required to decide each appeal on its merits. The Tribunal does not have any power to issue a mandamus, as it is only an appellate authority created to examine the matters relating to seniority, promotion, confirmation, transfer etc. This Court has witnessed many orders particularly relating to transfer of Government employees, in which the Tribunal has simply passed direction to consider and decide representation. Such approach of the Tribunal is not legally correct. The Tribunal should refrain from adopting such practice and it should decide appeal on the anvil of legal provisions or judicial precedents instead of leaving the employees at the mercy of the authorities who themselves have passed order(s) of transfer. 23. Instead of doing what was required, the Tribunal has simply directed the petitioner to file a representation. 24. The learned members of the Tribunal have failed to exercise the jurisdiction vested in them, and have rather shirked from their duty of deciding the appeal. 25. The writ petition, therefore, succeeds, the impugned order dated 12.08.2021, passed by the Tribunal is set aside; the appeal is restored to the dockets of the Tribunal, with a direction to the decide appeal on its merit within a period of six weeks from today. 26. The petitioner and the respondents shall appear before the Tribunal on 04.10.2021, and place a certified copy of the order instant; whereafter the Tribunal shall fix the next date of hearing. 27. Till the appeal is decided, the effect and operation of the basic transfer order dated 31.12.2020, so also subsequent order dated 29.07.2021 passed by the Director, Department of Sanskrit Education shall remain stayed.