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2023 DIGILAW 959 (RAJ)

Vinit Charan v. State of Rajasthan

2023-04-27

VINIT KUMAR MATHUR

body2023
ORDER : Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties. 2. The present writ petition has been filed with the prayer that the representation of the petitioner (Annex.5) may be decided by the respondents and the respondents may be directed to consider the transfer/posting of the petitioner near his hometown i.e. Chittorgarh on any vacant posts. 3. Briefly, the facts of the case are that the petitioner being Physically Handicapped Person and having the requisite qualification for appointment on the post of Teacher Grade III Level I applied for the said post. On 02/05/2022, the petitioner got selected on the said post and was posted in District Jalore as per his merit position and preference given by him at the time of appointment. The petitioner, who himself is suffering from 60% Locomotor disability in both the legs is not able to walk properly and had to take the support of wheelchair, is having one younger sister who is also suffering from Locomotor Disability in both her legs. Besides his younger sister, the petitioner's mother is also suffering from multiple ailments. Father of the petitioner died in the year 2018. In short, the family is solely dependent upon the petitioner for their bread and butter and is in crisis situation having suffered disabilities to a great extent. In these circumstances, the petitioner submitted number of representations to the respondents but nothing was heard. Therefore, the petitioner earlier approached this Court by filing a writ petition being SBCWP No.8411/2022 which was disposed of on 28/06/2022 directing the respondents to decide the representation of the petitioner taking into consideration the category of the petitioner i.e. Physically handicapped and other circulars on the subject but till date, no order has been passed by the respondents. Hence, this writ petition. 4. Learned counsel for the petitioner submits that petitioner is suffering from 60% Locomotor Disability in both the legs. His younger sister is also suffering from Locomotor Disability. Besides his younger sister, the petitioner's mother is suffering from multiple diseases. He further submits that father of the petitioner died in the year 2018 and his entire family is solely dependent upon him. Learned counsel submits that the hometown of the petitioner is Chittorgarh and, therefore, the respondents may be directed to consider the posting of the petitioner near his Hometown on any post which is vacant in District Chittorgarh. He further submits that father of the petitioner died in the year 2018 and his entire family is solely dependent upon him. Learned counsel submits that the hometown of the petitioner is Chittorgarh and, therefore, the respondents may be directed to consider the posting of the petitioner near his Hometown on any post which is vacant in District Chittorgarh. He submits that the petitioner earlier approached this Court by way of filing a writ petition which was disposed of vide order dated 28/06/2022 with a direction to the respondents to consider and decide the representation of the petitioner taking into account the Physical Condition of the petitioner for placing his services in the vacant post in his home district. Learned counsel submits that the petitioner is ready and willing to forego the benefit of seniority for the period he has spent in Jalore, if he is transferred to Chittorgarh. He, therefore, prays that the writ petition may kindly be allowed and the respondents may be directed to transfer/post the petitioner in Chittorgarh District. 5. The respondents have filed their reply and have submitted that although five vacancies are available as mentioned in the representation preferred by the petitioner i.e. at GUPS, Pilkheri, GPS Devpuriya, GPS Roopaji Ki Dhani, GSSS Melana and GGSSS Kanera, however, the petitioner cannot be shifted from Jalore to Chittorgarh as the selection process for filling up the vacant positions in the State of Rajasthan on the post of Teacher Gr.III is already in process. 6. On a pointed query being raised by the Court to learned counsel for the respondents that whether the services of the petitioner can be transferred/shifted from Jalore to Chittorgarh, he very fairly submitted that services can be transferred/shifted but the benefit of services rendered by the petitioner on his earlier place will not be granted while assigning seniority in the new District as per Rules 290 and 291 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996'). He, therefore, prays that the writ petition may be dismissed. 7. I have considered the submissions made at the Bar and have gone through the relevant record of the case. 8. There is no doubt that as per the merit position and the preference given by the petitioner, he has been allotted Jalore and the petitioner had already joined at Jalore. 7. I have considered the submissions made at the Bar and have gone through the relevant record of the case. 8. There is no doubt that as per the merit position and the preference given by the petitioner, he has been allotted Jalore and the petitioner had already joined at Jalore. After the completion of the entire process, the petitioner approached the respondents by way of filing an appropriate representation, wherein the detail of his physical condition as well as the prevailing circumstances of his family were explained and it was prayed that since there are five vacancies available at GUPS, Pilkheri, GPS Devpuriya, GPS Roopaji Ki Dhani, GSSS Melana and GGSSS Kanera in District Chittorgarh, therefore, his District may be shifted from Jalore to Chittorgarh. When nothing was heard, the petitioner approached this Court and this Court vide order dated 28/06/2022 directed the respondents to decide the representation of the petitioner taking into consideration his category i.e. Physically Handicapped person and other circulars on the subjects. The respondents although have not rejected the representation of the petitioner but have filed a detailed factual report dated 13/04/2023 (Annex.R/1), whereby inability has been expressed for transferring/posting the petitioner from Jalore to Chittorgarh on account of the fact that the vacancies available in District Chittorgarh have already been taken into consideration for undertaking the selection process of Teacher Grade III in 2022-23. The respondents have very fairly submitted that the transfer/posting of the petitioner from Jalore to Chittorgarh is not prohibited as per the law. However, as per the policy of the State Government and ban having been imposed on the transfer of Teachers from one place to another, the respondents are not able to carry out the desired transfer of the petitioner. 9. It is undisputed before this Court that the petitioner is 60% handicapped person having a younger sister who is also handicap and an old mother who is suffering from multiple diseases. Extraordinary situation which has been projected before this Court clearly shows the vulnerable condition of the petitioner and his family. The petitioner being the sole bread earner in the family is not in a position to relinquish the job and is forced to stay away from his hometown. Extraordinary situation which has been projected before this Court clearly shows the vulnerable condition of the petitioner and his family. The petitioner being the sole bread earner in the family is not in a position to relinquish the job and is forced to stay away from his hometown. As per Rule 290 of the Rules of 1996, there is ample power with the respondents to transfer an employee outside District, however, seniority will be governed by Rule 291 of the Rules of 1996. For brevity, Rules 290 and 291 are reproduced as under :- "Rule 290. Transfer outside the District.-(1) The name of the employee desiring transfer or desired to be transferred from one district to another shall be communicated to the Director by the Panchayat Samiti or the Zila Parishad, as the case may be. (2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the State Government against the vacant posts existing at such time. The State Government may transfer any member of service [from any place of posting to any other place of posting whether within same Panchayat Samiti or] from one Panchayat Samiti to another Panchayat Samiti within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from Panchayat Samiti to Zila Parishad or from a Zila Parishad to Panchayat Samiti and may also stay the operation of, or cancel, an order of transfer made under these rules. Chief Executive Officer or Vikas Adhikari concerned shall carry out such orders. (3) On transfer of an employee, his confidential roll and service record will be transmitted without avoidable delay to the Panchayat Samiti/Zila Parishad to whom his services have been transferred. [Provided that the employees of posts specified in clause (i) and (iv) of sub-section (2) of Section 89 of the Act, shall not be transferred outside the district in which they were appointed.] Rule 291. [Provided that the employees of posts specified in clause (i) and (iv) of sub-section (2) of Section 89 of the Act, shall not be transferred outside the district in which they were appointed.] Rule 291. Seniority on transfer: Seniority of an employee transferred outside the district, by the State Government under Sub-section (8-A) of Section 89 shall be determined by the Committee of the District to which he is transferred:- (i) if the transfer is made on the request of the employee, his seniority shall be fixed at the bottom of the seniority list of the cadre to which he belongs; and (ii) if the transfer is made on administrative or other reasons, his seniority shall be fixed on the basis of his continuous length of substantive service on an analogous post". 10. Considering the peculiar nature of facts and family situation of the petitioner, this Court deems it appropriate to direct the respondents to transfer/post the petitioner from Jalore to Chittorgarh on any of the vacant posts available including five posts mentioned in the preceding para of this order. While posting/transferring the petitioner, the petitioner will be placed at the bottom of the seniority list maintained on the post of Teacher Gr.III Level I in District Chittorgarh. 11. The writ petition is allowed in the above terms. 12. The stay application and other pending applications, if any also stand disposed of.