Rajasthan High Court - Jodhpur
Abhimanyu Choudhary vs Majer Ali on 19 December, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
(1 of 8) [SAW-1044/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1044/2022
Abhimanyu Choudhary S/o Shri Het Ram Choudhary, Aged About
39 Years, R/o Deengarh, Tehsil Sangaria, District Hanumangarh
(Raj.). At Present Block Development Officer, Panchayat Samiti
Nokha, District Bikaner.
----Appellant
Versus
1. Majer Ali S/o Shri Sadyle Khan, Aged About 45 Years, R/o
Modawasi, Tehsil Rajgarh, District Churu (Raj.).
2. Secretary, Department Of Rural Development And
Panchayati Raj, Secretariat, Rajasthan, Jaipur.
3. The Additional Commissioner Cum Deputy Secretary (Iii),
Rural Development, Government Of Rajasthan, Jaipur.
4. The Chief Executive Officer, Zila Parishad Bikaner, District
Bikaner.
5. The Vikas Adhikari, Panchayati Samiti, Nokha, District
Bikaner.
----Respondents
For Appellant(s) : Mr. R.N. Mathur, Sr. Advocate with
Mr. Lokesh Mathur
For Respondent(s) : Mr. Sunil Benilwal, AAG
Mr. Manoj Bhandari, Sr. Advocate with
Mr. Aniket Tater
Mr. Naveen Jain, Principal Secretary,
Department of Rural Development
and Panchayati Raj Department,
through VC
Mr. Ghanshaym Sharma, Dy.
Secretary, Panchayati Raj Department
through VC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 19/12/2022 (Downloaded on 20/12/2022 at 11:51:00 PM) (2 of 8) [SAW-1044/2022] The instant intra court appeal is laid before this Court in a very peculiar set of facts and circumstances. The appellant herein and the private respondent No.1 Majer Ali are both serving the respondent Panchayati Raj Department as Vikas Adhikaris. On the relevant date i.e., 15.06.2022, the respondent Majer Ali was posted as Vikas Adhikari, Panchayat Samiti, Nokha. An order dated 15.06.2022 came to be passed by the competent authority whereby Shri Majer Ali was transferred to be posted as Vikas Adhikari, Panchayat Samiti, Baran. Simultaneously, an order dated 15.06.2022 was passed whereby, the appellant herein was transferred and posted as Vikas Adhikari, Nokha. The respondent Majer Ali filed writ petition (No.9017/2022) for assailing the transfer order dated 15.06.2022 primarily on the ground that it was a case of unjustified frequent transfers and that the writ petitioner had been transferred six times over a period of two years.
The appellant Abhimanyu Choudhary who was transferred and posted at Nokha in place of Shri Majer Ali was not imleaded as a party respondent in the aforesaid writ petition. Thus, an impleadment application was filed on his behalf which was accepted and the appellant Abhimanyu Choudhary was impleaded as a party respondent in the writ petition by order dated 12.07.2022. On the same day, being satisfied with the submissions made on behalf of the writ petitioner Shri Majer Ali, that he had been transferred over six times in a short span of two years, the learned Single Bench, proceeded to stay the effect and operation of the order dated 15.06.2022 qua Shri Majer Ali and at the same time, it was directed that the position of respondent (Downloaded on 20/12/2022 at 11:51:00 PM) (3 of 8) [SAW-1044/2022] No.5 i.e., the appellant herein who had joined on the post shall not be disturbed.
It may be stated here that by the time, the impugned order came to be passed, the writ petitioner Majer Ali was relieved and the appellant Abhimanyu Choudhary had already joined on the post. As a consequence of the above interim order, a bizarre situation developed inasmuch both appellant and Majer Ali held charge of the same post i.e, Vikas Adhikari, Panchayat Samiti Nokha. Thereupon, the appellant herein also filed writ petition ( No.12369/2022) claiming a direction upon the respondents to allow him to exercise administrative and financial powers which were withheld on account of Majer Ali's joining back on the post.
Both the writ petitions (Nos.12369/2022 and 9017/2022) were clubbed and the order dated 23.09.2022 came to be passed by learned Single Bench observing that the State Government was responsible for creating the confusion. The learned Single Bench, refused to vacate the interim order dated 12.07.2022 expressing that the writ petition (No.9017/2022) had to be decided finally. The order dated 23.09.2022 is assailed in this intra-court appeal filed by the appellant Abhimanyu Choudhary.
Shri R.N. Mathur, learned senior counsel assisted by Shri Lokesh Mathur, Advocate representing the appellant urged that the averment made by the respondent Majer Ali in the writ petition (No.9017/2022) before the learned Single Bench that he had been transferred frequently is totally incorrect. It was pointed out that Shri Majer Ali was transferred as Vikas Adhikari, (Downloaded on 20/12/2022 at 11:51:00 PM) (4 of 8) [SAW-1044/2022] Panchayat Samiti, Nokha on 13.08.2021 and the questioned transfer order dated 15.06.2022 came to be passed after nearly ten months of he having held the charge of the post of Nokha. E- converso, it is the appellant herein, who has been transferred six times since 10.09.2021.
Shri Mathur placed reliance on the Supreme Court judgment in the case of Executive Director, West Bengal Power Development Corporation Ltd. vs Ardhendu Sekhar Bala & Ors. reported in (2010) 1 SCC 351 and urged that as the appellant had already joined on the post of Vikas Adhikari, Nokhar, the order dated 12.07.2022, which amounted to bringing the position to status quo ante could not have been passed. He thus, implored the Court to set aside the impugned order and leave the parties at liberty to raise all their contentions before the learned Single Bench. He submitted that the appellant may be allowed to perform his duties as Vikas Adhikari, Panchayat Samiti Nokha without any hindrance.
Looking to the confusion prevailing in the matter, we had directed the Additional Commissioner-cum-Deputy Secretary, Panchayati Raj Department to remain personally present in the court. The Secretary, Department of Rural Development and Panchayati Raj was asked to join the proceedings through VC. Today both the officers are present in hearing as directed.
Shri Sunil Beniwal, AAG representing the State Authorities, urged that wherever the appellant Abhimanyu Choudhary was posted, he indulged in misconduct and numerous inquiries have (Downloaded on 20/12/2022 at 11:51:00 PM) (5 of 8) [SAW-1044/2022] been opened against him. However, Shri Beniwal was not in a position to explain the chaos and confusion which has been created on account of posting of two Vikas Adhikaris on the same post.
Shri Naveen Jain, Principal Secretary, Department of Rural Development and Panchayati Raj appearing through VC submitted that he shall immediately look into the matter and ensure that all pending proceedings are taken to their logical conclusion. He also assured the Court that henceforth this kind of situation of confusion shall not be allowed to prevail and the transfers of the officers under the Panchayati Raj Department shall be done prudently by strict adherence to the prevailing Rules, Circulars and Guidelines.
We have heard and considered the submissions advanced at bar and have gone through the material placed on record.
It cannot be disputed that transfer of a Government employee is an incident of service. This principle was reiterated by Hon'ble Supreme Court in the case of SK Nausad Rahman & Ors. vs Union of India & Ors. reported in (2022) 3 Supreme 593 observing as below:-
"23 While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind. 24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right (Downloaded on 20/12/2022 at 11:51:00 PM) (6 of 8) [SAW-1044/2022] or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
Ex-facie, we are of the opinion that the portrayal made on behalf of Shri Majer Ali that he was made to suffer frequent transfers does not stand to scrutiny because admittedly, the last transfer of Shri Majer Ali by the impugned order dated 15.06.2022 was after a gap of ten months. As against this, the appellant Abhimanyu Choudhary has faced six transfers from 10.09.2021. Thus, comparatively speaking, the appellant Abhimanyu Choudhary has faced harsher treatment in the matter of frequent transfers. As the facts pertaining to the disciplinary inquiries against Abhimanyu Choudhary are not a subject matter of this appeal, it would be unjust to make comment thereupon. However, it is expected that the concerned authority shall conclude these proceedings expeditiously and take the same to their logical conclusion. In any event, the fact remains that in compliance of the transfer order dated 15.06.2022, the appellant Abhimanyu Choudhary had joined the post of Vikas Adhikari, Panchayat Samiti Nokha and the respondent Majer Ali had been relieved from the said post much before the ad interim stay order bringing about 'status quo ante' was passed by learned Single Bench on 12.07.2022.
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(7 of 8) [SAW-1044/2022] Considered in light of the facts and circumstances as noted above and the observations made by Hon'ble the Supreme Court at Para 5 of the judgment in the case of Executive Director, West Bengal Power Development Corporation Ltd. (supra) which reads as below:-
"5. Considering the facts and circumstances of the present case, particularly the fact that Shri Kamal Das has already joined the post in the said School in place of Respondent 1, there was no necessity at that stage for the Division Bench to grant stay of the order of the learned Single Judge. Although the Division Bench by the impugned order had passed an interim order pending the disposal of the appeal, we are of the view that in view of the fact that Shri Kamal Das has already joined the post where Respondent 1 was working at the time of his transfer, there was no need to stay the operation of the impugned order of the learned Single Judge at that stage."
we feel that it was not a case warranting issuance of a 'status quo ante' order in favour of the writ petitioner Majer Ali. The objection raised by Shri Manoj Bhandari, learned Senior Counsel representing Shri Majer Ali that the order dated 12.07.2022 has not independently challenged in this appeal does not hold water because the said order has merged in the impugned order dated 23.09.2022.
As a consequence, the order dated 23.09.2022 and the ad interim stay order dated 12.07.2022 are reversed. The parties are relegated to approach the learned Single Bench for decision of writ petitions Nos.12369/2022 & 9017/2022. The Secretary, (Downloaded on 20/12/2022 at 11:51:00 PM) (8 of 8) [SAW-1044/2022] Panchayati Raj Department shall ensure that such chaotic situations are avoided in future as far as possible. The appeal is allowed in these terms. No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
32-Sudhir Asopa/-
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