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2023 DIGILAW 1967 (RAJ)

Rajesh Barber, S/o. Shri Mishri Lal Ji v. State Of Rajasthan, Through The Secretary, Department Secondary Education, Government Of Rajasthan

2023-10-13

VINIT KUMAR MATHUR

body2023
ORDER : 1. The petitioners have approached this Court challenging their respective transfer orders. 2. The main ground canvased by the petitioners at the time of admission of these writ petitions was, that transfer orders did not contain any stipulation regarding payment of TA & DA, thus, the transfer orders are bad in the eyes of law. 3. Mr. Vishal Jangid, at the outset submitted that in most of the cases, the State Government has either ordered for TA & DA or has taken an in-principle decision that applicable TA & DA as per rules, shall be paid to all the transferred employees. 4. Learned counsel for the respondents then argued that merely because stipulation regarding payment of TA & DA is absent, the transfer order as a whole does not become fundamentally void. 5. In support of his contention that the order does not become void for want of payment of TA & DA, learned Government Counsel relied upon the judgment dated 15.01.2018, passed by a coordinate Bench of this Court in the case of Jagdish Chandra Sen Vs. State of Raj. & Ors. : S.B. Civil Writ Petition No.8224/2017. 6. In prima facie opinion of this Court, absence of condition or stipulation regarding payment of TA & DA, per se does not render a transfer order fundamentally void; it is only a procedural lapse or lacunae, which can be cured subsequently. 7. That apart scope of interference of this Court in the matters of transfer is limited to cases wherein orders are shown to be arbitrary, malafide without jurisdiction or contrary to the transfer policy. 8. According to this Court, non-payment of TA & DA does not violate the transfer policy, nor does it affect the fundamental rights of the employees warranting interference. Impugned transfer orders do not require any interference by this Court. 9. At this juncture, learned counsel for the petitioners submitted that there are judgments/orders passed by this Court taking a different view than what has been taken in the case of Jagdish Chandra Sen (supra). 10. Learned counsel for the petitioners, also submitted that there are additional grounds raised by the petitioners, such as frequent transfers etc. 11. 9. At this juncture, learned counsel for the petitioners submitted that there are judgments/orders passed by this Court taking a different view than what has been taken in the case of Jagdish Chandra Sen (supra). 10. Learned counsel for the petitioners, also submitted that there are additional grounds raised by the petitioners, such as frequent transfers etc. 11. Having regard to the facts and circumstances of the case and considering that there is divergence of the views on the issue as to whether for want of stipulation regarding TA & DA, the order becomes bad in the eye of law, ideally the matter needs to be referred to a larger Bench. However, considering that the interim orders have been passed in petitioners' favour, on the ground that the TA & DA has not been paid to them and same are continuing till today and that we are in midst of session, this Court feels that vacating interim orders, at this juncture, would not only affect petitioners' rights but would also affect the interest of the students of the schools in which they are teaching, as the session is almost over and final examinations are in offing. 12. All these writ petitions are, therefore, disposed of while making the interim orders absolute and giving the respondents a liberty to pass fresh order of transfer(s) in accordance with law. 13. In case the State considers it necessary fresh order of transfer(s) can be passed qua the petitioners but not upto 15.12.2023. 14. The petitioners shall obviously have a liberty to challenge fresh order(s) (if any passed by the respondents), in accordance with law. 15. Needless to observe that if any of the above petitioners was not paid TA & DA, the State shall pay the same in accordance with law latest by 15.11.2023. 16. Stay petitions also stand disposed of accordingly. 17. The order has been passed based on the submissions made in the petition, the respondents would be free to examine the veracity of the submissions made in the petition and only in case, the averments made therein are found to be correct, the petitioners would be entitled to the relief.