Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2756 (RAJ)

Anil Sethi v. State Of Rajasthan

2022-11-15

MAHENDAR KUMAR GOYAL

body2022
JUDGMENT 1. Although, the matter comes up on applications no.1/2022 & 2/2022 filed by the respondents seeking vacation of ex parte interim order dated 19.09.2022; but, on the request of learned counsels for the respective parties, the writ petition is heard on its merit at this stage. 2. The relevant facts in brief are that the petitioner, an Executive Engineer, has been transferred vide order impugned dated 03.09.2022 from Jaipur to Sri Ganganagar which is subject matter of challenge. 3. Assailing the order, learned counsel for the petitioner submits that the respondent no.4, who has been transferred vice him, is facing a departmental enquiry and hence, in view of the Circular dated 23.07.2003 issued by the State Government through Department of Personnel, he could not have been given field posting. He submits that only two and half years are left in petitioner's attaining the age of superannuation. Lastly, learned counsel submits that the petitioner has been transferred thrice during the period of last eleven months and hence, the transfer order is liable to be interfered by this Court. He, therefore, prays that the writ petition be allowed and the order dated 03.09.2022 be quashed and set aside. 4. Per contra, learned counsel for the official respondent submits that the Rajasthan State Agriculture Marketing Board is an autonomous statutory body established in exercise of powers under Section 22A of the Rajasthan Agriculture Produce Markets Act, 1961 and the Circulars issued by the State Government through Department of Personnel are not binding upon it. Inviting attention of this Court towards the P.W.D. Manual Vol.-1 (General) annexed with reply, learned counsel submits that the posting of respondent no.4 as Executive Engineer (Quality Control) is not a field posting. He submits that there has been no violation of any statutory rule while transferring the petitioner and hence, the writ petition deserves to be dismissed. 5. Learned counsel for the respondent no.4 submits that this Court has, vide its order dated 29.03.2022 passed in S.B. Civil Writ Petition No.4464/2022: Pyare Lal Meena v. State of Rajasthan & Ors., stayed the charge-sheet issued to him. He also submits that the transferred place cannot be reckoned as field posting as it does not involve direct contact with the public. He, therefore, prays for dismissal of the writ petition. 6. He also submits that the transferred place cannot be reckoned as field posting as it does not involve direct contact with the public. He, therefore, prays for dismissal of the writ petition. 6. Learned counsel for the petitioner, in rejoinder, submits that the circulars issued by the State Government from time to time are binding upon the respondent-Board also. Inviting attention of this Court towards the minutes of meeting dated 22.10.2021, learned counsel submits that the Board has decided not to give the respondent no.4 field posting. He prays for allowing the writ petition. 7. Heard. Considered. 8. It is trite law that transfer is an exigency of service and no employee can claim a vested right to remain posted at the particular place. The Hon'ble Supreme Court in the matter of Union of India and Anr. v. Deepak Niranjan Pandit and Anr.: (2020) 3 Supreme Court Cases 404 in para Nos. 3 and 4 has held as under:- "3.The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which was weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. 4.However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. 4.However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval". 9. The Hon'ble Supreme Court has, in the matter of 'Rajendra Singh & Ors. v. State of Uttar Pradesh & Ors. reported in (2009) 15 Supreme Court Cases 178, held as under:- "8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal; SCC P.406 para 7). 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar & Ors.1, this Court held : (SCC p.661, para 4) "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. 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 not 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. The High Court overlooked these aspects in interfering with the transfer orders." 10. In N.K. Singh v. Union of India, this Court reiterated that : (SCC p. 103; para 6) "6. ... the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision...." 10. Thus, in the backdrop of the aforesaid legal position, it is clear that the Court should not interfere with the transfer order unless it is actuated out of malice or is hit by any statutory provision. Indisputably, in the present case, it is not the case of the petitioner that he has been transferred out of malice or that it is in violation of some statutory rule. In any case, the petitioner is holding a high and responsible post of Executive Engineer and is expected to serve anywhere in the State. 11. Contention of learned counsel for the petitioner that since transfer of the respondent no.4 in his place is in violation of the circular issued by the State Government, the same deserves to be quashed, does not merit acceptance for the reasons; firstly, the circulars are not binding upon the Court being executive instructions and secondly, this Court is not satisfied that the respondent no.4 has been given field posting or that on account of non-compliance of the circular dated 23.07.2022 qua the respondent no.4, the petitioner is entitled for cancellation of his transfer. Even otherwise also, as per the order dated 29.09.2022 placed on record by the petitioner as Annexure 14 alongwith his rejoinder, during pendency of the writ petition, the order impugned dated 03.09.2022 has been modified qua the respondent no.4 and this ground is no more available to the petitioner. 12. Second contention of learned counsel that the transfer order dated 03.09.2022 is liable to be quashed and set aside inasmuch as only two and half years are left in his retirement, is devoid of merit. No statutory provision forbids transfer of an employee within two and half years of his retirement. 13. Insofar as, contention of learned counsel for the petitioner that he has been transferred thrice within a short span of eleven months, despite repeated request of this Court, the averment was not substantiated and in view thereof, it cannot be accepted by this Court. 14. The upshot of the aforesaid discussion is that the writ petition is devoid of merit and is dismissed accordingly. 15. The pending applications also stand disposed of.