Rajasthan High Court - Jaipur
Jagdish Prasad Gupta vs State Of Rajasthan & Anr. on 12 April, 2001
Equivalent citations: 2001(2)WLC327, 2001(4)WLN13
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER Dr. AR. Lakshmanan, C.J.
(1). The Writ Petition filed by the pelitioner to set aside -the order dated 4.2.1997 and allow him to continue to work in the Transporl Department with all consequential benefits.
(2). By the order dated, 4.2.97, the petitioner was transferred back to the Department of Agriculture from where he was relieved way back in the year 1986. The said order is annexed and marked as Annexure-6.
(3). The pelitioner was appointed as Lower Division Clerk after his regular selection in the department of Agriculture on 15.5.1971. He was confirmed with the cadre of Lower Division Clerk w.e.f. 1980. The petitioner submitted an application through proper channel for seeking his transfer from Agriculture Department to the Transport Department. He was transferred to the Transport DepartmenI vide order dated 20th January, 1986 on the post of Lower Division Clerk (Annex, l). Since the pelitioner sought transfer on his own request, he was placed in the seniority list below the Lower Division Clerks working in me Transport DepartmenI at the time when he joined the said department. Because of the transfer, the petitioner has lo lose his seniority under Rule (xii) of Rule 27 of the Rajasthan Subordinate Services Ministerial Staff Rules, 1957. According to the petitioner, his transfer in the year 1986 was in accordance with rule 7 of the Rules of 1957 and that attained finality and thus, there is no occasion to take any adverse action against him for his posting in the department of Agriculture which he left way back in the year 1986, particularly when he had joined the department after due consent of the department. The petitioner was working in the Regional Transport Office, Kola and he submitted his application for transfer lo Alwar and on his request, he was transferred from Kota to Alwar on 18th March, 1996. He was again transferred from Alwar to Kota vide order dated 3.1.97 and a condition had been issued in the said order that the petitioner will not gel any joining time with further direction to the R.T.O. Alwar, to relieve him by a particular date fixed in the order. According to the petitioner, the order of his (ransfer dated 3.1.1997 was malafide and in order to accommodate the person transferred vide him and there was no administrative exigency involved in the mailer. Against the said order the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal (Appeal No. 33/97) and the Tribunal stayed the operation of the order of his transfer and posted the mailer for hearing on 17.2.97. The petitioner states that this aclion of the petitioner questioning the action of the respondents transferring him from Alwar to Kota within 9 months caused annoyance to the Management and irnmedialely after the service of the slay order, the respondent as a matter of revenge, passed order dated, 4.2.97 transferring the petiiioner back to the Department of Agriculture from where he was relieved in the year 1986.
(4). The action of the respondents is questioned in the following manner by Shri Ajay Rastogi, learned counsel for the petiiioner:
(a) The impugned action of the respondents transferring him to Agriculture Department after more than 11 years, particularly when he became entitled to get his seniority determined in the Department of Transport, is bad in the eye of law.
(b) All other persons similarly placed are working in the cadre of LDC in the Transport Department even prior to the petitioner and thereafter and the petitioner alone has been picked up. He has questioned the action of the Management transferring him from Kola to Alwar.
(c) One Vijay Kumar Verma, who was employed in Jail Department was transferred to Transport Department vide order dated 4.10.85 and he too was again sought to be transferred by the order dated 23.6.87 to the Jail Department, which was challenged by him before this Court in Wril Petition No. 1594/87 and the same was allowed on 19.1.88 and he is still working in the Transport Department. Thus, the action of the department-is malafide and is in clear violation of the provisions of Articles 14 and 16 of the Constitution.
(d) To the application submitted by the petitioner to the Agriculture Department to know as to whether his lien still continues, he had been informed vide letter dated 14.2.97 from the office of the Director, Agriculture that he is no more on the roll of the Agriculture Department and his name has been struck off from the seniority list of the department and the department has shown inability to take him in the service of the Agriculture Department. (Annex.8).
(e) The seniority list which has been published by the Agriculture Department of L.D.Cs. as on 1.4.93 as well as on 1.4.94, 5.8.93 and 6.8.94, the name of the petitioner does not find place in the said seniority lists. Thus, it clearly shows that his name has been struck off from the roll by the Department of Agriculture, which fact has been clarified by the Department vide letter dated 14.2.97.
(f) When the petitioner has been transferred with the concurrence of the Heads of the Departments and he accepted the seniority at the lowest position of the LDCs working in the Department of Transport, he has given his consent of transfer and after 11 years of satisfactory service, the respondents are not competent to repatriate him to the Department of Agriculture without his consent and without tho concurrence of the Head of the Department of Agriculture.
(5). Thus it is submitted by Shri Ajay Raslogi that the action of the respondents in passing the impugned order is absolutely illegal, arbitrary and the same is in clear violation of the Articles 14 and 16 of trie Constitution of India.
(6). Alongwith the writ petition the petitioner filed Annexure 1 to 8 (7). The reply was filed on behalf of the respondents. It is submitted by the respondents that the petitioner's lien continued to be in the Agriculture Department, his seniority was also shown in the Agriculture Department and that the petitioner's seniority has never been shown in the Transport Department. As far as the seniority of LDCs is concerned, it is submitted that none of the persons who had been transferred on 20.1.86 has been included in the seniority list of LDCs in the Transport Department and such persons continued to be shown in the seniority list of LDCs in their parent departments. It is further submjtted that because the petitioner had been working in the Transport Department for 11 years, does not entitle him to have his lien transferred from Agriculture Department to the Transport Department. It is also submitted that the Agriculture Department has not been impleaded as parly respondent.
(8). On behalf of the respondents, the case was argued by Shri Kamlakar Sharma.
(9). We have perused the entire pleadings filed in the writ petition, reply filed by the respondents and the application, affidavit and petition filed under Art. 226(3) of the Constitution of India to vacate stay.
(10). It is seen from the above application that on 27.3.97, a high level meeting took place between the Transport Commissioner- cum-Secretary to the government in the Department of Transport and the Secretary to the Government, Agriculture Production and il was decided thai since the petitioner has his lien in the Agriculture Department, the Agriculture Department would take him back in service and would issue posting orders accordingly. In pursuance to the aforesaid decision, the Agriculture Department, on 27.3.97 has passed an order appointing the petitioner as L.D.C. in Agriculture Department and posting him in the said department in the Water Resources Development and Soil Conservation Department Project at its Pavari Project at Thanagaji (Alwar) on a vacant post. Copy of the said order has been filedand marked as Annexure R/1. Since the petitioner has already been posted in Agriculture Department, it is submitted that there survives no cause of grievance. The petitioner cannot insist on being kept in the Transport Department as he has no lien there and he had only been transferred temporarily. The decision to send back such employees to their parent department has been held to be valid by this Hon'ble Court in Writ Petition No. 215/90 and SLP against the said order has been rejected being SLP No. 10140/94. Thus, in view of the aforesaid facts, since the petitioner has already been posted on a vacant post in the Agriculture Department and the order passed by this Court dated 3.3.97 has been complied with and there is no jurisdiction in directing the petitioner to continue in the Transport Department more so because this Hon'ble Court in its order dated 3.3.97 had ordered the continuation of the petitioner in the Transport Department only on account of the fact that an allegation had been made that the Agriculture Department was not taking him back in service. In view of the aforesaid facts, We are of the opinion that the stay granted by this Court cannot be allowed to be in force. The English translation of Annexures 1,6 and 8 and Annexure R/1 has been placed before us by Shri Kamlakar Sharma. Annexure-1 is the order under which the petitioner, Lower Division Clerk in the office of the Assistant Director Agriculture, Alwar was transferred on a temporary basis to the Transport Department and was posted as LDC in the Head Office, Jaipur. Annexure-6 is the order dated 4.2.97, which reads thus:
"GOVERNMENT OF RAJASTHAN TRANSPORT DEPARTMENT No.F.1 (18) Pari/Stha/86 Jaipur, Dated : 4.2.97 ORDER Because the Rajasthan High Court in Writ Petition No. 215/90 has given a judgment that the repatriation of such persons who are temporarily working in other departments to the parent department is proper. And because the Hon'ble Supreme Court in S.L.P. (Civil) 10140/94 has upheld the said order of the Rajasthan High Court. And because Shri Jagdish Prasad Gupta, Lower Division Clerk had been transferred from the Agriculture Department on 30.1.86 on a temporary basis and the lien of Shri Gupta is reserved even this date in his parent department. And because his services are no longer required by this department. And because there are vacancies of Lower Division Clerk in the Agriculture Department. Hence, Shri Jagdish Prasad Gupta, Lower Division Clerk, in the light of these circumstances is repatriated to his parent Agriculture Department. Immediately, on his being relieved, he would give his attendance to the Director, Agriculture Department. SD/-
Transport Commissioner Copy to : 1 to 7 Sd/-
Additional Transport Commissioner (Admn.)"
(11). His seen from Annexure-6 thai lien of the petitioner is still reserved even on 4.2.97 in his parent department namely, the Agriculture Department. It is also seen from the above exhibit that the Supreme Court in SLP (Civil) 10140/94, has upheld the said order of this Court passed in Writ Petition No. 215/90, under which this Court gave a judgment that the repatriation of such persons who are temporarily working in other departments to the parent department is proper. It is also seen from the above exhibit that since the services of the petitioner are no longer required by the Transport Department and because there are vacancies of LDCs in the Agriculture Department, the petitioner was repatriated to the Agriculture Department.
Annexure-8 is the relevant order, which reads as follows:
"GOVERNMENT OF RAJASTHAN DIRECTORATE OP AGRICULTURE RAJASTHAN, JAIPUR No. Pao 2 (4) Niokuo/Group-l Dated:
Additional Transport Commissioner (Admn.) Transport Department, 'Rajasthan, Jaipur.
Sub : Relieving of Shri Jagdish Prasad Gupta, Lower Division Clerk. Ref : Your Order No. F.1 (18) Pari/Stha/086 dated 4.2.97.
Sir, With reference to the aforementioned letter it is submitted that Shri Jagdish Prasad Gupta, Lower Division Cterk who was working under your office has been ordered to be relieved to give his attendance in this department In this regard copy of Rule 27 sub Rule (2) of the Rajasthan Subordinates Offices Ministerial Staff Rules, 1957 is enclosed. According to which if an employee voluntarily seeks departmental transfer his seniority would be fixed in the new department from the date of his joining. Because Shri Jagdish Prasad Gupta, Lower Division Clerk had voluntarily requested for transfer to your department and because your department had accepted his services, hence, the name of Shri Jagdish Prasad Gupta was removed from the seniority list of Lower Division Clerks of this office. Hence, the fixation of seniority of Shri Gupta is to be done in your department from the date he joined duties. Hence, it is not possible to take back the services of Shri Jagdish Prasad Gupta in this department. Yours truly, Sd/-
Established Officer No. P.2 (4) ( ) Ka. Li./Nlokuo/562-63 Dated 14.2.97 Copy to :
Shri Jagdish Prasad Gupla, Lower Division Clerk, Office of the Dls-trict Transport Officer, Alwar for information.
Sd/-.
Establishment Officer"
(12). It is seen from the above exhibit (Annex. 8) that as per Rule 27 sub rule (2) of the Rajaslhan Subordinate Offices Ministerial Staff Rules. 1957, if an employee voluntarily seeks departmental transfer his seniority would be fixed in the new department from the date of his joining and because the petitioner had voluntarily requested for transfer to the Transport Department and the department had accepted his services, the name of the petitioner was removed from the seniority list of L.D.Cs. of the Directorate of Agriculture, hence, it is slated that the fixation of seniority is to be done in the department from the date he joined duties and it is not possible to lake the services of the petitioner in the Directorate of Agriculture. However, by order dated 27.3.97 of the Directorate of Agriculture, the earlier orderof the Agriculture Department No. P.2(4) ( ) Director of Agriculture/Group 1/562-63, dated 14.2.97 was superseded and the services of the petitioner are taken back in Agriculture Department and is posted with immediate effect in the Water Resources and Soil Conservation Department Project on a vacant post. The order Annex. R/1 reads as follows:
GOVERNMENT OF RAJASTHAN DEPARTMENT OF AGRICULTURE RAJASTHAN, JAIPUR.
No. F.2(4) C ) Ni.Kra/Group-1 Dl. 27.3.97 ORDER In a meeting convened on 27.3.97 by the Agriculture Production Secretary it has been decided that, because Shri Jagdish Prasad Gupla, Lower Division Clerk is a permanent employee of the Agriculture Department, hence his lien is with the Agriculture Department and the Transport Department has not made him permanent. Hence, in compliance of the Transport Commissioner's Order No. P.I ( ) 8/Transport/Est./86 dated, 1.2.97 and in supersession of the Agriculture Department Order No |.2{4) f ) Director of Agricullure/Ciroup-1/562-63 dated, 14.2.97, the services of Shri Jagdish I'rasad Gupla, Lower Division Clerk, RTO Office, Alwar are taken back in the Agriculture Department and is posted with immediate effect in the Water Resources Development & Soil Conservation Department Project at its Pavari Project at Thanagaji, Alwar, on vacant post.
That order has been issued with the approval of the Director, Agriculture.
Sd/-
Establishment Officer No.F.2(4)( ) Ni. Kra/Group-l/987-93 Copy for information and necessary action:
1. Transport Commissioner, Transport Deptt. Jaipur.
2. District Transport Officer, Alwar.
3. Director, Water Resources Development & Soil Conservation Department, Jaipur.
4. Water Resources Development & Soil Conservation Department's Project, Pavari, Thanagaji, Alwar.
5. Shri Jagdish Prasad Gupta. Lower Division Clerk, DTO Office, Alwar.
6. Personal File.
7. Guard file.
Sd/-"
(13). 11 is seen from the above order Annexure R/l thai it is issued will) the approval of the Director of Agriculture and a copy of the said order was forwarded to the Transport Commissioner, Transport Department, Jaipur, District Transport Officer, Alwar, Director, Water Resources Development & Soil Conservation Deptt., Jaipur, Water Resources Development & Soil Conservation Department's Project, Pavari, Thanagaji, Alwar and also to the petitioner.
(14). The contention of the learned counsel for the petitioner that his lien is not continued in the Agriculture Department cannot, at all, be countenanced. The An-nexurcs above referred in the earlier part of the order would clearly show thai the petitioner and other persons similarly placed continued to be shown in the seniority list of L.DCs. in their parent department. Merely because, the petitioner had been confirmed would not entitle him to be transferred on a permanent basis lo the Transport Department. The petitioner has no such claim. He is having his lien in the parent department i.e. the Agriculture Department and was transferred to the Transport Department on temporary basis. His transfer from the Agriculture Department to the Transport Department, cannot, in our view, confer any right to be appointed in the Transport Department. The transfer was also made on account of administrative reasons. The petitioner could not have claimed, as a matter of right, that he should be continued to be posted at Alwar or any other pla.ce. Having been appointed in the Government service, the petitioner can be transferred anywhere, which is an exigency of service. It is also not disputed that the petitioner was transferred from Alwar to Kota by order dated, 3.1.97.
(15). The contention of the petitioner is that persons similarly placed are still continuing in the Transport Department and he alone had been singled out for re-transfer to the parent department. The fact that some other are still continuing is not a reason and cannot also be a reason for challenging the present order of transfer. Though certain malafide has been alleged, but the petitioner has not chosen to implead the persons who are responsible for his vindictive re-transfer.
(16). It is settled law that transfer of an employee is a part of conditions of service and the employees are bound lo obey the orders of transfer and work at the place where they have been transferred and posted. Transferability from one establishment to another is an incidence of service and that the employer is the best Judge to decide upon the utilisation and distribution of its manpower, amongst various units and places. The Courts and Tribunals cannot also properly assess or adjudicate effectively the reasons given for transfer of employees. The decision of the employer, in such cases, is conclusive and that except in the rarest Of rare cases, courts should not interfere with transfer or retransfer as the case may be. I, therefore, hold that the impugned, order of transfer is not malafide or had been made to accommodate any other person, it is specific case of the department that the petitioner has his lien in the parent department i.e. the Agriculture Department and continued to have his lien and therefore, he has to go to his parent department.
(17). At the time of hearing, the case of Satya Narain Pareek was also mentioned who has been appointee! by transfer from another department and against whom a departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was pending, had been transferred to his parent department and was relieved from the Transport Department. The said Satya Narain Pareekhad filed a Writ Petition No. 215/90, challenging the action of the respondents in transferring him to the parent Department The said Writ Petition was dismissed. The Special Appeal was also dismissed. There-after, it was taken to me Supreme Court, which held thai the transfer of the employee to his parent department could not be said to be illegal. Since the petitioner is also being transferred to his parent department, the mention of the aforesaid writ petition was made in his transfer order also. Merely because the petitioner had been working temporarily for 11 years in the Transport Department, does not entitle him to have bis lien transferred from the Agriculture Department to the Transport Department. The petitioner continued to have his lien in his parent department of Agriculture and seniority was also maintained there. His name has not been included in the seniority list of LDCs issued by the Transport Department.
(18). My Ajay Rastogi argued that because of the transfer which is permissible under Rule 7 of the Rules of 1957, the petitioner will have to lose his seniority and the same will be determined in accordance with Rule 27.(xi-a) of the Rules of 1957. This argument has no force. Merely because the transfer is permissible under Rule-7, it does not create any right in favour of the petitioner to remain in the Transport Department where he was transferred in the year 1986. He cannot claim that he should be permanently absorbed in the Transport Department. Tere is no right vested or inherent in any person to claim that he should not be repatriated to his parent department and should be allowed to continue in the transferred department, even though he does not hold a lien therein.
(19). The case of one Vijay Kumar Verma has also been referred to at the time of hearing. He was transferred from Jail Department to Transport Department by order dated 4.10.85 and was sought to be transferred back to the Jail Department on 23.6.87. Vijay Kumar challenged the said order by filing writ petition which was allowed on 19.1.88. According to the respondents, the case of Vijay Kumar Verma is clearly different than that of the petitioner. The said Vijay Kumar Verma was only working temporarily In the Jail Department land, therefore, he did not have his lien in that department. Hence, the case of Shri Verma cannot be applied to the facts of the case of the pelitioner as the basic facts in both the cases are different.
(20). The action of the respondents in passing the order dated, 4.2.97 is not illegal or arbitrary as alleged by the petitioner.
(21). The writ petition has no merit and accordingly the same is dismissed.