ORDER : 1. By way of instant writ petition filed by petitioner under Article 227 of the Constitution of India, challenge has been made to the order dated 21.01.2022 in appeal No.4746/2021 by the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter “the Tribunal”), dismissing the appeal filed by petitioner and affirmed the impugned transfer order dated 29.09.2021 whereby petitioner has been transferred outside of his cadre i.e. from the post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur to the post of Additional Director, Tourist Reception Center, Delhi. 2. Petitioner states that in the cadre of Rajasthan State Tourism Service, there is only one single post of the rank of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur and since petitioner belongs to this cadre, he was posted on this post in the year 2016-17. Petitioner states that later on, in order to harass him he was placed under APO vide order dated 18.11.2020 by the Joint Secretary, Tourism Department, Government of Rajasthan, Jaipur. This order of APO was arbitrary, against the law and malicious, therefore, petitioner had to challenge the order of APO dated 18.11.2020 by way of filing SBCWP No.14336/2020, in which the Hon’ble High Court vide order dated 16.12.2020, stayed the APO order and directed respondents to allow the petitioner to perform his duties on the post. Petitioner states that accordingly pursuant to directions of Court, petitioner was allowed to resume and continue his duties on the post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur. Petitioner further states that during operation of stay order dated 16.12.2020, to nullify the same and to harass the petitioner, the Joint Director, Tourism Department, Government of Rajasthan, Jaipur has issued the impugned transfer order dated 29.9.2021 whereby the petitioner has been transferred to his Non-cadre post of Additional Director, Tourist Reception Center, Delhi, which is a post of RAS cadre (Temporary). Petitioner pointed out that the transfer of petitioner out of his cadre post, without his consent is arbitrary as much as illegal, if on the post of Additional Director, Tourist Reception Center, Delhi any senior officer of the Tourism Department was to be posted, respondents could have sent any senior officer on deputation after obtaining his consent because the said post is falling in the RAS cadre. Petitioner pointed out that the learned Tribunal has not adverted to this aspect, therefore, the order of Tribunal dated 21.1.2022 and the impugned transfer order dated 29.9.2021 so also the relieving order of petitioner dated 30.9.2021, be quashed and set aside. Petitioner has referred two judgments of Apex Court : (i) Prasar Bharti Vs. Amarjeet Singh [ AIR 2007 SC 1269 ] (ii) State of Punjab Vs. Inder Singh [ (1997) 8 SCC 372 ] 3. Respondents have filed reply to the writ petition on 8.2.2022. In para 6 of the reply, it has been stated that there are four sanctioned posts of RAS cader in the Tourism Department, out of which two posts are of regular cadre post (one higher super timer and one super time scale) and other posts are temporary. It has been submitted that out of two temporary posts of RAS cadre, one temporary post was sanctioned as Additional Director (South), Tourism Information Center, Chennai. Subsequently, the said post in Chennai was transferred to the Tourism Reception Center, Delhi vide order dated 17.7.2015. It has been submitted that as the post of Additional Director, Tourism Reception Center, Delhi was a RAS Cadre post and the Department of Personnel is cadre controlling of RAS cadre, therefore, before transferring the petitioner who is senior officer belonging to Rajasthan Tourism Service Cadre, on the post of Additional Director, Tourism Reception Center, Delhi, approval of the Department of Personnel, Government of Rajasthan was sought and when the Department of Personnel by way of order dated 23.9.2021 accorded its approval and conveyed its no objection, the petitioner has been transferred vide order dated 29.9.2021. Thus, the transfer of petitioner on a vacant post of RAS cadre, does not suffer from any illegality and the order of Tribunal as also the transfer order do not call for any interference. With the reply, respondents have placed on record the order of DOP dated 24.1.2013 (Annexure-R/2) showing strength of posts in each grade of RAS cadre wherein in super time scale, at serial No.83, the post of Additional Director (South), Tourism Information Center, Chennai is indicated as temporary post of RAS cadre. Respondents have also placed on record note-sheet of Department of Tourism, Government of Rajasthan, Jaipur (Annexure-R/3) seeking approval of Department of Personnel, before issuing transfer order of petitioner. Respondents have also placed on record note-sheet of Department of Tourism, Government of Rajasthan, Jaipur (Annexure-R/3) seeking approval of Department of Personnel, before issuing transfer order of petitioner. Perusal of note-sheet clearly indicates the admission of respondents as also of DOP that the post of Additional Director, Tourism Reception Center, Delhi is temporary post of RAS cadre. 4. Coordinate Bench of this Court vide order dated 21.3.2022, sought additional affidavit from respondents to the effect as to whether the post of Additional Director, Tourism Reception Center, Delhi belongs to RAS cadre or Tourism cadre. In response, an additional affidavit dated 28.3.2022 has been filed on behalf of respondents by one Upendra Singh Shekhawat, the then Deputy Director, Tourism Department, Government of Rajasthan, Jaipur. In the additional affidavit, it has been stated that one post of Assistant Director was existing at Tourism Information Center, Chennai and this post was upgraded to Additional Director (South) Tourism Information Center, Chennai in super time scale which was to be filled up temporarily from RAS cadre. Thereafter, the said post was transferred to Tourism Reception Center at New Delhi vide order dated 17.7.2015 (Annexure-AA/5), whereupon Smt. Gurjeet Kaur, Lecturer, College Education, Rajasthan was sent on deputation vide order dated 17.7.2015 (Annexure-AA/6). However, she had been relieved and the post of Additional Director, Tourism Reception Center, Delhi had been laying vacant since 7.10.2020. It has been stated that considering the importance of the role and responsibilities of this post, the Tourism Department transferred petitioner, who is senior officer to that post after approval from the Department of Personnel. One U.O Note dated 1.9.2021 of the Department of Personnel (Annexure-AA/7) has been placed on record with additional affidavit and on the basis of such noting, it has been stated that post of Additional Director, Tourism Reception Center, Delhi is not a RAS cadre post. 5. It appears that respondents have taken u-turn in the additional affidavit dated 28.3.2022 and on the basis of noting of DOP dated 1.9.2021 (Annexure-AA/7) stated that the post of Additional Director, Tourism Reception Center, Delhi is not a RAS cadre post whereas in the reply to writ petition filed on 8.2.2022, in para 6, respondents have admitted that the post of Additional Director, Tourism Reception Center, Delhi is of RAS cadre post. It is not in dispute that before transfer of petitioner, who is in the cadre of Tourism Department, the approval of Department of Personnel was sought and DOP vide noting dated 23.9.2021 extended its no objection accepting the post of Additional Director, Tourism Reception Center, Delhi as RAS cadre post (temporary). 6. Heard. Considered. 7. Having perused the material placed on record and as discussed hereinabove, this Court finds that in reply to writ petition, it is admitted case of respondents that the post of Additional Director, Tourism Reception Center, Delhi is RAS cadre post of which cadre controlling authority is the Department of Personnel and since petitioner belongs to Rajasthan Tourism Service Cadre, therefore, in order to transfer the petitioner on the post of Additional Director, Tourism Reception Center, Delhi, approval of the Department of Personnel was sought. To substantiate the factum of approval, respondents have placed on record note-sheets (Annexure-R/3). Perusal of note-sheets clearly reveals that the post of Additional Director, Tourism Reception Center, Delhi was treated as RAS cadre (temporary) and the DOP in its noting dated 23.9.2021 also acknowledged the said post in the same cadre while giving its no objection to transfer any senior officer of Tourism Department on said post. The transfer of petitioner who undisputedly belongs to Rajasthan Tourism Service Cadre, to outside cadre which is of RAS cadre, cannot be said in accordance with law. The legal position in this respect is well established as has been laid down by the Apex Court in case of Prasar Bharti (supra). The relevant para No.13 reads as under : “13. There exists a distinction between ‘transfer’ and ‘deputation’. ‘Deputation’ connoted service outside the cadre or outside the parent deparatment in which an employee is serving. ‘Transfer’, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.” 8. It is not the case of respondents that petitioner has been sent on deputation but by the impugned order dated 29.9.2021, he has been transferred outside the cadre without his consent, therefore, the transfer order is not sustainable in the eye of law. 9. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.” 8. It is not the case of respondents that petitioner has been sent on deputation but by the impugned order dated 29.9.2021, he has been transferred outside the cadre without his consent, therefore, the transfer order is not sustainable in the eye of law. 9. As far as additional affidavit dated 28.3.2022 is concerned, filed by Shri Upendra Singh Shekhawat, the then Deputy Director, Tourism Department from the side of respondents to state that post of Additional Director, Tourism Reception Center, Delhi is not a RAS cadre post, prima facie, does not inspire confidence as this additional affidavit is contrary to basic contention of respondents in the reply to writ petition (para No.6) as also documents enclosed with the reply as Annexure-R/2 and R/3. It appears that in the affidavit, on the basis of information provided by the Department of Personnel in noting dated 1.9.2021 (Annexure-AA/7), such statement has been made, whereas the noting dated 1.9.2021, only contains that the post of Additional Director, Tourism Reception Center, Delhi is not a created post in RAS cadre. It may also be noticed here that Department of Personnel in its noting dated 23.9.2021 (Annexure-R/3) clearly admitted that the post of Additional Director, Tourism Reception Center, Delhi is temporary post of RAS cadre. It may be noticed here that as per Annexure-R/2, it is admitted case of respondents that the post of Additional Director (South), Tourism Information Center, Chennai is included in the strength of RAS cadre (temporary) and later on this post has been transferred to the Tourism Reception Center, Delhi vide order dated 17.7.2015 (Annexure-AA/5). Respondents have nowhere stated in the additional affidavit nor placed on record any order in respect of re-transfer of said post of RAS cadre (temporary) to the cadre of Tourism Department. Thus, it stands clear that though the post may not be a created post of RAS cadre but still the same is temporary post of RAS cadre where the petitioner has been transferred. 10. Thus, it stands clear that though the post may not be a created post of RAS cadre but still the same is temporary post of RAS cadre where the petitioner has been transferred. 10. It is not in dispute that earlier when petitioner was discharging his duties on the post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur, he was placed under APO vide order dated 18.11.2020 and when the order of APO was stayed by the High Court vide order dated 16.12.2020 in SBCWP No.14336/2020, during the operation of stay order, the impugned transfer order dated 29.9.2021 has been passed. Thereafter, respondents have withdrawn the order of APO vide order dated 18.10.2021 (Annexure-R/1) that too w.e.f. date of APO itself i.e. 18.11.2020. So it appears that respondents somehow intend to dislodge the petitioner from his cadre post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur, which is only one and single post of his cadre. Further, the intention of respondents do not seem to be bonafide & fair, while transferring the petitioner to non-cadre post. 11. As discussed hereinabove, it stands clear that respondents have made an effort to change their stand by way of filing additional affidavit, to show that the transferred post of petitioner is not of RAS cadre but such new stand of respondents in the additional affidavit is contrary to the defense of respondents taken in the reply to writ petition as also documents placed on record along with reply as Annexure-R/2 & R/3 showing that since transfer order has been passed after approval of DOP, so same is valid. Considering such facts and circumstances, the conduct of respondents, prima facie, appears to be tainted with malafides and as such, cannot be countenanced. 12. In overall facts and circumstance, respondents have failed to justify any good reason to the transfer of petitioner to outside his cadre. If respondents were/are in need of sending any senior officer of Tourism Department to the post of Additional Director, Tourism Reception Center, Delhi, feeling the post as important and responsible one, it is open to send any officer on deputation as per law. So the respondents have not acted in accordance with law and in the opinion of this Court, impugned transfer order of petitioner is arbitrary and illegal and has not been passed bonafidely within parameters of law. So the respondents have not acted in accordance with law and in the opinion of this Court, impugned transfer order of petitioner is arbitrary and illegal and has not been passed bonafidely within parameters of law. The Tribunal committed jurisdictional error in not adverting to the clinging issue arises in the matter, impugning the transfer order, therefore, the order of Tribunal dated 21.1.2022, the impugned transfer order dated 29.9.2021 so also the reliving order dated 30.9.2021 are not sustainable in the eye of law. Respondents do not dispute the fact averted by petitioner that after passing the impugned transfer order dated 29.9.2021, on the post of Additional Director (Development), Tourism Department, Government of Rajasthan, no other person has been transferred/posted in place of petitioner. 13. As a result, the impugned order dated 22.1.2022 passed by the Tribunal and the transfer order dated 29.9.2021 so also the relieving order dated 30.9.2021 of petitioner are quashed and set aside. Consequently, the posting of petitioner as Additional Director (Development), Tourism Department, Government of Rajasthan be resumed. 14. The writ petition stands allowed, accordingly. 15. Stay application and other pending application(s), if any, stand disposed of.