Rajasthan High Court - Jodhpur
Smt. Neelam Saxena vs State Of Rajasthan & Ors on 29 January, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13729 / 2017
Smt. Neelam Saxena W/o Dr. Samindra Saxena, Aged About 45
Years, R/o I.E. 205, J.N Vyas Colony, Bikaner.
----Petitioner
Versus
1. State of Rajasthan Through the Secretary, Department of
Secondary Education, Secretariat, Rajasthan, Jaipur.
2. The Director, Secondary Education, Govt. of Rajasthan, Bikaner.
3. The District Education Officer, Secondary Education, Bikaner
District Bikaner.
4. District Education Officer, Elementary Education, Bikaner.
5. Rajasthan Civil Services Appellate Court Jodhpur Through Its
Registrar.
----Respondents
Connected With
S.B. Civil Writ Petition No. 13730 / 2017
Smt. Farzana Sultana W/o Sh. Moinudeen, Aged About 48 Years,
R/o Near Sulemani Madarsa, Mohalla Vyapariyan, Bikaner.
----Petitioner
Versus
1. State of Rajasthan Through the Secretary, Department of
Secondary Education, Secretariat, Rajasthan, Jaipur.
2. The Director, Secondary Education, Govt. of Rajasthan, Bikaner.
3. The District Education Officer, Secondary Education, Bikaner
District Bikaner.
4. District Education Officer, Elementary Education, Bikaner
5. Rajasthan Civil Services Appellate Court Jodhpur Through Its
Registrar.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Parmendra Bohra
For Respondent(s) : Mr. B.L. Bhati
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 29/01/2018 These writ petitions have been filed by the petitioners aggrieved against order dated 24.09.2017 passed by the respondents, wherein, petitioners have been granted posting (2 of 4) order and order dated 18.10.2017 passed by Rajasthan Civil Services Appellate Tribunal, Jaipur ('the Tribunal'), whereby, the appeals filed by the petitioners have been dismissed.
The grievance of the petitioners is that they were appointed under the provisions of Rajasthan Education Sub-ordinate Service Rules, 1971 ('the Rules of 1971'), which fact is fortified from the order of appointment Annexure-1, however, the order impugned dated 24.09.2017 has been passed indicating that pursuant to the provisions of Rule 6D of the Rules of 1971, the petitioners were being posted at the respective place after transferring them from their present place of posting.
It is submitted that provisions of Rule 6D of the Rules of 1971 pertain to the recruitment/transfer of Teachers, who are governed by the provisions of Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') and Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996') and has no application to the employees like petitioners, who are already governed by provisions of Rules of 1971 and, therefore, passing of order Annexure-3 is on account of non-application of mind and the same deserves to be quashed and set aside.
Further submissions were made that aggrieved against the said order, petitioners had approached the Tribunal, which though came to the conclusion that the petitioners were not governed by the provisions of Rule 6D of the Rules of 1971, has dismissed the appeals filed by the petitioners observing that the order passed is a simple order of transfer and respondent being employer has full (3 of 4) powers to transfer an employee. It is submitted that the orders passed by the State as well as the Tribunal being contrary to the legal position deserve to be quashed and set aside.
Learned counsel appearing for the respondents reiterated the stand as taken before the Tribunal. It was submitted that alongwith counseling of the Teachers recruited/transferred under the provisions of Rule 6D of the Rules of 1971, the Teachers recruited under the Rules of 1971 were also called for counseling for their posting and based on the counseling the orders impugned have been passed. Merely because a wrong provision has been indicated, the petitioners cannot take advantage of the said aspect and, therefore, the writ petitions filed by them deserve to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the order dated 24.09.2017 indicates that the same pertains to the Teachers, who were recruited/transferred under the provisions of Rule 6D of the Rules of 1971 as repeatedly the word absorption has been used in the said order and it is also not disputed by learned counsel for the respondents that most of the Teachers, as indicated in the order impugned, are Teachers, who were working under the Act of 1994 and the Rules of 1996.
The submission made that the respondents had undertaken the exercise of transferring the Teachers appointed under the Rules of 1971 also simultaneously by itself cannot make the order impugned as valid, inasmuch as, if the said exercise was (4 of 4) undertaken, the respondents should have passed a separate order and the names of the petitioners could not have been included in the order, pertaining to the Teachers, who were governed by Rule 6D of the Rules of 1971.
The very fact that the names of the petitioners, even if, on account of inadvertence have been included in the order impugned, clearly reflects non-application of mind on part of the respondents while passing the order impugned and, therefore, the same cannot be sustained.
The reasoning given by the Tribunal that the respondent being employer have full power to transfer the employees cannot be applied everywhere, once non-application of mind is reflective from the order impugned, the same was required to be quashed and set aside.
In view of the above discussion, the writ petitions filed by the petitioners are allowed. The orders dated 24.09.2017 & 18.10.2017 qua the petitioners are quashed and set aside. It goes without saying that in case the petitioners are required to be transferred, the respondents would be free to pass appropriate orders in accordance with law.
(ARUN BHANSALI)J. A.K. Chouhan/-101-102