Pawan Kumar vs The Secretary (Admn.) Jod. Discom &Ors; on 20 September, 2016

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Rajasthan High Court - Jodhpur

Pawan Kumar vs The Secretary (Admn.) Jod. Discom &Ors; on 20 September, 2016

Since the controversy involved in these writ petition is identical, therefore, I propose to dispose of all these writ petitions by this common order. For the sake of convenience, the facts in S.B. Civil Writ Petition No.10026/2016 are taken note of.

The petitioners, who are working as Technical Helper in the respondent Jodhpur Vidhyut Vitran Nigam Ltd. (JVVNL) are aggrieved against their transfer order dated 23.08.2016 by which their services have been placed at the disposal of the Superintending Engineer, Jodhpur Discom, Bikaner.

Learned counsel for the petitioners submit that the transfer orders are not in consonance with the rules since they have not been given any TA & DA nor have they been given any joining time. It is also contended that when the transfer will be effected, the petitioners would loose their seniority after they get transferred to a different sub-division.

{6} Mr. Kuldeep Mathur, learned counsel appearing on behalf of the respondents, contends that the transfer orders have been passed on account of administrative exigency as has been mentioned in the transfer orders itself and thus the petitioners have no right to challenge the same. It is also contended that the petitioners would be paid TA & DA as per the rates given in Appendix "C" of the RSEB Travelling Rules of 1962. Moreover, the seniority of the petitioners would not be disturbed as alleged by the petitioners.

I have heard the counsel for the parties and gone through pleadings of the record and note that most of the persons transferred under the impugned orders, have joined service.

In a recent judgment rendered in the case of Institute of Advance Studies in Education & Anr. Vs. Pradeep Kumar Sharma[D.B. Civil Special Appeal No.629/2016, decided on 09.08.2016], it was held as under:-

"Transfer is an incidence fo service. Normally Courts refrain from interference unless there is violation of statutory rules or regulations, it is shown to be afflicted by malafides or is vindictive/punitive in nature. Barring these exceptions it shall be wholly inappropriate exercise of jurisdiction to sit as an appellate authority over an order of transfer to decide the manner in which the employer shall conduct its affairs and the manner in which it will utilize its personnel at one location or the other sans its own requirements. The primary duty of an employee is to first comply the order of transfer and then represent. Failure to join may be construed as misconduct also.

If it is the employer's privilege and prerogative to transfer an employee from one place to another, the fact that it may be at a considerable distance is a wholly irrelevant consideration. If the employee is of the opinion that the allowance is not sufficient, he is at liberty to pursue his remedies in accordance with law including under the rules and regulations governing his employment."

{7} The contention of the petitioners that the impugned transfer orders ought to be set aside since there is no provision of TA & DA is not sustainable. As per Rule 27A of the RSEB Travelling Rules of 1962, an employee, who is transferred from one station to another in Board's interest and not at his own request, shall be entitled to transferring allowance at the rates given in Appendix "C". In the instant case, admittedly, the transfer is at the behest of the Board on account of administrative exigency for rationalization of man power. The transfer orders mention that the transfers are being initiated in the interest of the Nigam. Therefore, the petitioners would be entitled to TA on their transfer. Merely on account of the fact that the said transfer orders do not mention that the petitioners would be entitled to TA on their transfer, the said transfer order cannot be held to be violative of the rules, would not negate the transfer order, since the Rules themselves provide for such transferring allowance. Therefore, the argument raised that the transfer orders ought to be set aside is not sustainable.

Another argument that has been raised is that on account of the transfer, the petitioners' seniority would be affected. In this regard, it would be appropriate to refer to the additional affidavit that has been filed on behalf of the respondents wherein it is categorically submitted that the seniority of the petitioner would be maintained at Sub-Divisional Level but on his transfer to another Sub-Division, his seniority would not be affected adversely as he would be placed in the seniority list of the Sub-Division where he is posted as per the merit attained by him in the year of his selection/appointment. The respondents have placed on record an order dated 01.03.2007 in which it is stated that there shall be a common seniority list {8} of all technical helpers and the merit of the selected candidates shall be inter se for the purpose of preparation of common seniority list. Therefore, in view of the fact that the petitioners' seniority would not be affected since their seniority on transfer would be maintained as per their merit position, the argument as raised is rejected. Therefore, this court is not inclined to interfere in the transfer orders and all these writ petitions stand dismissed.

It is also noted that most of the writ petitioners have already joined their service pursuant to the transfer orders. However, there are few writ petitioners, who have yet to join. A request has been made that some time may be given to them to join since the transfer orders were silent in this regard and no joining time was given to them.

After hearing learned counsel for the parties, the prayer made is accepted and the petitioners, who have not yet joined their service pursuant to their transfer orders, are hereby permitted to submit their joining on or before 23.09.2016.

With the above observations, the writ petitions stand dismissed.

( JAISHREE THAKUR ),J.

/skm/ I.No.108-110, 127, 128

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Rajasthan High Court - Jodhpur