Rajasthan High Court - Jodhpur
Kamli Ram Meena vs Ajmer Vidyut Vitaran Nigam Ltd on 21 February, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1290/2022
Kamli Ram Meena S/o Shri Ratan Lal Meena, Aged About 50
Years, Resident Of Village Taranpur, Tehsil Malarna Doonger,
District Sawai Madhopur (Raj.).
----Petitioner
Versus
1. Ajmer Vidyut Vitaran Nigam Limited, Through Its
Managing Director, Avvnl, Ajmer.
2. The Secretary (Administration), Ajmer Vidyut Vitaran
Nigam Limited, Ajmer.
----Respondents
Connected With
S.B. Civil Writ Petition No. 11643/2021
Kamli Ram Meena S/o Shri Ratan Lal Meena, Aged About 50
Years, Village Taranpur, Tehsil Malarna Doonger, District Sawai
Madhopur (Raj.).
----Petitioner
Versus
1. Ajmer Vidyut Vitaran Nigam Ltd., Through Its Managing
Director, Avvnl, Ajmer.
2. The Secretary (Administration), Ajmer Vidyut Vitaran
Nigam Limited, Ajmer.
----Respondents
For Petitioner(s) : Mr. Vinit Dave
For Respondent(s) : Mr. Ravi Bhansali, Senior Advocate
assisted by Mr. Vipul Dharnia.
Mr. Rakesh Arora.
Mr. Deepesh Beniwal.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 21/02/2022
1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.
2. These writ petitions have been preferred claiming the following reliefs:
(Downloaded on 25/02/2022 at 08:23:37 PM)
(2 of 19) [CW-1290/2022] CWP No.1290/2022:
"i) by an appropriate writ, order or direction, the impugned order dated 17.01.2022 (Annexure-11) may kindly be declared illegal and be quashed with all consequential directions;
ii) by an appropriate writ, order or direction, the impugned order dated 17.01.2022 (Annexure-12) may kindly be declared illegal and be quashed qua the petitioner with all consequential directions;
iii) further, during the pendency of the present writ petition, if any orders are passed by the respondents effecting the rights of the petitioner involved in the present petition, such order may kindly be taken on record and be quashed."
CWP No.11643/2021:
"i) by an appropriate writ, order or direction, the impugned suspension order dated 14.08.2021 (Annexure-1) may kindly be declared illegal and be quashed qua the petitioner with all consequential directions;
ii) by an appropriate writ, order or direction, the respondents may kindly be ordered to permit the petitioner to continue to work on the post of Superintending Engineer (O&M), Chittorgarh."
3. Learned counsel for the petitioner submits that the petitioner has been unfairly and unjustly transferred from his post of Executive Engineer (Vigilance), Ajmer Vidyut Vitaran Nigam Limited (for short, 'AVVNL'), Chittorgarh 6 times over a period of 5 years, since the year 2017. Learned counsel further submits that the said frequent transfers are even ultra vires the transfer policy as framed by the State respondents for the AVVNL employees.
4. Learned counsel for the petitioner further submits that the petitioner also managed to achieve revenue realization in the Chittorgarh Circle with an efficiency of 100.19% during the Financial Year 2020-21 and had received an appreciation letter (Downloaded on 25/02/2022 at 08:23:37 PM) (3 of 19) [CW-1290/2022] therefor, on 25.05.2021 by the Managing Director of AVVNL and was also issued a Commendation Certificate, for the same on 15.08.2021 by the District Administration for his exemplary work during the COVID-19 pandemic.
5. Learned counsel for the petitioner however, submits that the petitioner being aggrieved by one of the transfer orders dated 14.08.2021, approached this Hon'ble Court, and that this Hon'ble Court passed an interim order in the favour of the petitioner on 02.09.2021. Learned counsel also submits that circumventing the said interim order of this Court, the State/respondents vide the impugned order dated 17.01.2022 placed the petitioner under 'Awaiting Posting Order'.
6. Learned counsel for the petitioner further submits that prior to the year 1999, the sole functioning entity assigned with the task of generation, supply and distribution of electricity in the State of Rajasthan, was the Rajasthan State Electricity Board (RSEB), and that the service conditions of the employees were governed by Rajasthan State Electricity Board Employees' Service Regulations, 1964 (hereinafter referred to as 'the Regulations of 1964'). However, as per learned counsel, after the promulgation of the Rajasthan Power Sector Reforms Act, 1999 (for short, 'Act of 1999'), five companies came to be formed for generation and supply of electricity across the State, three being distribution companies namely JVVNL, AVVNL & JdVVNL whereas the other two comprised of a production company RVUNL and a transmission company RVPNL.
6.1 Learned counsel also submits that thereafter, in the exercise of the powers conferred under Sections 14, 15, 16 and 58 of the (Downloaded on 25/02/2022 at 08:23:37 PM) (4 of 19) [CW-1290/2022] Act of 1999, the State Government framed a scheme namely the Rajasthan Power Sector Reforms Transfer Scheme, 2000 to cater to the difficulties in the bifurcation process during the transitional period. Learned counsel further submits that under Clause 10 (2) of the said Scheme, the Coordination Committee so dissolved earlier, was reconstituted subsequently to deliberate upon the policy functions, and through the same a transfer policy was framed.
6.2 Learned counsel also submits that in order to cater to the rules/regulations for the employees who were already in service prior to the formation of creation of AVVNL, it was decided that they shall continue to be governed by the Regulations of 1964; and that, the Rajasthan Service Rules, 1959 shall be applicable where the Regulations of 1964 do not provide for any provision.
7. Learned counsel for the petitioner further submits that the matters regarding placing an employee under Awaiting Posting Orders and his pay, are to be governed by Rule 25-A of the Rajasthan Service Rules, 1959.
Rule 25A of the Rules of 1959 reads as follows:
"25A. Pay during awaiting posting orders. - A Government Servant who is compulsorily kept under awaiting posting orders under note below Rule 7(8) (b) (iii) shall be entitled to the pay and allowances at the rate at which he was drawing immediately before relinquishing charge in the old post. He shall not be allowed Conveyance Allowance or permanent Travelling Allowance during the period of awaiting posting order.
Government of Rajasthan's Decision:
Government servant are kept compulsorily under awaiting posting orders usually in the following circumstances:-- (1) On return from leave.(Downloaded on 25/02/2022 at 08:23:37 PM)
(5 of 19) [CW-1290/2022] (2) On reversion to parent department from deputation within India.
(3) On return from abroad after completion of training or foreign assignment.
(4) On return from training within India. (5) Awaiting posting order after making over charge of the old post under the directions of Appointing Authority. (6) Non-acceptance of the officer on transfer to another post. (7) To save a Government servant from reversion.
8. Learned counsel for the petitioner further submits that the transfer policy/guidelines do not envisage transfer of the officers prior to two years of continuous posting at one place of posting, except in the case of contingencies as provided in the policy.
9. Learned counsel for the petitioner, in support of his submissions, placed reliance on the following judgments, 9.1 D.K. Garg & Anr. Vs. The State of Rajasthan & Ors. (D.B. Civil W.P. No. 13772/2016, decided by a Division Bench of this Hon'ble Court on 06.01.2022) wherein the following was held:
"43. Mr. Ravi Bhansali, learned Senior counsel appearing on behalf of the respondents at the first instance tried to debunk petitioners' ground regarding continuation of the Coordination Committee and its jurisdiction by submitting that the Coordination Committee constituted vide order dated 19.07.2000 of the Secretary (Energy) was though initially for a transitional period, but its mandate was extended from time to time - vide orders dated 16.10.2001; 01.11.2006; 02.02.2009; 14.09.2009; 26.04.2010; 07.04.2014 and 05.11.2014.
44. It was informed that vide order dated 05.11.2014, the said Coordination Committee was reconstituted with more powers, responsibilities and duties. While reading the order dated 05.11.2014, learned Senior counsel submitted that the scope of said reconstituted committee was expanded to discuss and decide common issues relating to all the five power sector companies and common issues of Discoms; to review the (Downloaded on 25/02/2022 at 08:23:37 PM) (6 of 19) [CW-1290/2022] revenue position; power supply position and also to review the power sector activities. It was also stipulated that such committee would deliberate on policy issues and any other issues of general importance and welfare.
87. It may be noted that with some modifications regarding members of the Reconstituted Committee, the Committee so constituted vide order dated 21.09.2016 of the State Government (or the Board of Directors of RUVNL) continued as 'Reconstituted Coordination Committee' for the following purposes:
"The Coordination Committee shall discuss and decide the common issues related to the power sector companies, inter company and common issues of Discoms. It will also review revenue position, power supply position and other power sector activities (Generation, Transmission and Distribution). The Coordination Committee would also be deliberate upon policy issues and other major issues of general importance and welfare relating to power sector."
88. After wading through the above referred orders, this Court is of the firm view that the Coordination Committee, which was initially constituted for transitional period vide order dated 19.07.2000 for the purpose of coordination, conflict resolution and for transfer of functions and activities of five newly formed companies continued to hold field by the order of the State Government and with enlarged scope, at the relevant time, had the jurisdiction to dwell upon and decide the issue of redesignation of the post of Feeder Managers as Assistant Engineers and to suggest amendment in the Regulations. The petitioners' argument about jurisdiction, which is essentially based upon the first order of the State Government dated 19.07.2000 has no substance. The same is liable to be and is hereby rejected.
89. The second contention of the petitioners that the decision to amend the Regulations was required to be taken by the Board of Directors/Management of the respective companies followed by the due approval of the State Government, is equally untenable, inasmuch as the Coordination Committee and Reconstituted Coordination Committee always had Managing Directors of each/ respective companies as their member. Both the recommendations of the Coordination Committee made on (Downloaded on 25/02/2022 at 08:23:37 PM) (7 of 19) [CW-1290/2022] 30.10.2015 and 10.05.2017 impugned in the present writ petitions were tabled before the State Government for its approval and were, as a matter of fact, approved. Learned counsel for the petitioner thus submits that on the basis of the aforementioned judgment, the transfer policy is the only source providing guidelines for the transfer of officer or employees of AVVNL, and that the Reconstituted Coordination Committee of Rajasthan State Power Sector Companies has been empowered by the State Government to frame policies. The policies framed by the Reconstituted Coordination Committee are binding upon all the Power Sector Companies which has been pleaded by the power sector company itself, in the above case.
9.2 In X Vs. Registrar General, High Court of M.P. & Ors. decided on 10.02.2022 W.P. (Civil) No. 1137 of 2018 - decided by the Hon'ble Supreme Court on 10.02.2022, it was observed as under: -
"30. We therefore clarify that we are restricting the scope of enquiry in the present matter only to examine the following issues, on the basis of the factual scenario as has come on record in the present matter:
(i) As to whether the order transferring the Petitioner from Gwalior to Sidhi dated 8th July 2014 is legal;
(ii) As to whether the orders of the MP High Court dated 11th July 2014 and 14th July 2014, rejecting the Petitioner's representations dated 9th July 2014 and 11th July 2014 respectively, were legal; and
(iii) As to whether the resignation of the Petitioner dated 15th July 2014 can be considered to be voluntary or the one which has been forced due to circumstances.
38. It could thus be seen that the Transfer Policy incorporated by the MP High Court has provided in detail, the procedure that is required to be followed with regard to effecting the transfer of the Judicial Officers, their tenure at a particular (Downloaded on 25/02/2022 at 08:23:37 PM) (8 of 19) [CW-1290/2022] posting, the circumstances in which the case should be considered for permitting the Judicial Officers to stay beyond the prescribed period and the manner in which the representation is to be considered etc.
39. No doubt that the said Transfer Policy is only a set of Guidelines for internal administration of the District Judiciary issued by the MP High Court. However, while exercising its functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 of the Constitution of India. We may gainfully refer to the following observations made by this Court in the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries MANU/SC/0257/1993 : (1993) 1 SCC 71:
8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the Rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the Rule of law and operates in our legal system in this manner and to this extent.
9. In Council of Civil Service Unions v. Minister for the Civil Service [MANU/UKHL/0045/1984 : 1985 AC 374 : (1984) 3 All ER 935 (HL)] the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as (Downloaded on 25/02/2022 at 08:23:37 PM) (9 of 19) [CW-1290/2022] reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that "the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter". Again in Preston, in re [MANU/UKHL/0020/1985 : 1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that "the principle of fairness has an important place in the law of judicial review" and "unfairness in the purported exercise of a power can be such that it is an abuse or excess of power". These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602 :
(1980) 1 SCR 459] which holds that court should interfere where discretionary power is not exercised reasonably and in good faith.
40. It could thus be seen that this Court has held that mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right. It is further held that the failure to consider and give due weight to it may render the decision arbitrary. It has been held that the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, which is a necessary concomitant of the Rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant. It has been held that a bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. It has been held that the principle of fairness has an important place in the law of judicial review and that (Downloaded on 25/02/2022 at 08:23:37 PM) (10 of 19) [CW-1290/2022] unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith.
58. It is trite that the State is under the obligation to act fairly without ill will or malice--in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.
62. At the cost of repetition, we may say that though it is the case of the Respondent No. 1 that the transfer order of the Petitioner dated 8th July 2014, was on the ground of administrative exigencies, the material placed on record and particularly, the depositions of the then Judge on the Transfer Committee and the then RG, would clearly show that it was on the basis of the complaint made by the then D & SJ, Gwalior. It is a different aspect that the JIC had come to a specific finding of fact, that the evidence on record clearly shows that Justice 'A' had a role to play in the transfer of the Petitioner and the rejection of her two representations. We are therefore of the considered view that the transfer order dated 8th July 2014, would squarely be covered by 'malice in law' inasmuch as it was passed without taking into consideration the Guidelines provided in the Transfer Policy but on the basis of unverified allegations made in the complaint made by the then D & SJ, Gwalior." Learned counsel for the petitioner thus submits, on the basis of the above mentioned case law, in regard to the transfer policy even if having no statutory backing, is still binding, being the only source for providing the considerations for exercise of discretion by the transferring authority, the Hon'ble Supreme Court held that (Downloaded on 25/02/2022 at 08:23:37 PM) (11 of 19) [CW-1290/2022] a transfer policy is binding even when the policy preamble provided that the same is not statutory in nature. 9.3 State of Punjab & Ors. vs. Gurdial Singh & Ors. (1980) 2 SCC 471, wherein the Hon'ble Supreme Court observed as under:
"8. The question, then, is what is mala fides in the jurisprudence of power ? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes "of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated : "I repeat that all power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist".
9. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malices-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action mala fides or fraud on power, vitiates the acquisition or other official act." (Downloaded on 25/02/2022 at 08:23:37 PM)
(12 of 19) [CW-1290/2022] 9.4 In State of Punjab Vs. Ramjilal & Ors. (1970) 3 SCC 602, the Hon'ble Supreme Court observed as follows:
"9. Counsel for the State of Punjab contended that the plea that the action of the State was not bona fide established, cannot be said to be unless the party alleging that case names the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, and since no such attempt was made and the High Court did not find that any named officer or officers was or were responsible for that official act, the plea that it was bona fide must fail. We do not think that the law casts any such burden upon the party challenging the validity of the action taken by the State Government. The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claims to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose."
Learned counsel for the petitioner thus submits, on the basis of the above mentioned case law, it is clear that the exercise of discretion in violation of the Policy would amount to malice-in-law as the exercise of power is for the purpose not envisaged in the policy, and thus, beyond the sanctioned purpose. 9.5 Hemendra Kumar Trivedi Vs. State of Rajasthan, 2018(2) CDR 523 (Raj.). wherein this Hon'ble Court held as under:
"9. 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 19.5.2017 (Annex. 7) (Downloaded on 25/02/2022 at 08:23:37 PM) (13 of 19) [CW-1290/2022] indicates that the order is non-speaking, no reason whatsoever has been indicated as to why the petitioner was being APO. The repeated orders passed against the petitioner, have been interfered with by this Court on account of their obvious deficiency and again in the present case, the order has been passed in apparent violation of Rule 25-A of the Rajasthan Service Rules, 1951. The submissions made in the reply seeking to justify the order dated 19.5.2017, cannot be countenanced, extraneous purposes without indicating reasons for the same in the order. If the order dated 19.5.2017 (Annex. 7) was issued for the reasons as indicated in the reply, the same should have been reflected in the order and, therefore, the reasons indicated in the reply, the same should have been reflected in the order and, therefore, the reasons indicated in the reply cannot be used for sustaining the order impugned. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 19.5.2017 (Annex. 7) "is quashed and set aside. The respondents would be free to pass appropriate orders in accordance with law."
Learned counsel for the petitioner thus submits, on the basis of the above mentioned case law, the order placing the petitioner under Awaiting Posting Order, is an unreasonable order and hence, the same is unsustainable in the eye of law, as was held by this Hon'ble Court.
10. Learned counsel for the petitioner also submits that the ground taken by the respondents, with regard to the petitioner's services being required at Banswara necessitating his transfer from Chittorgarh owing to his 100.19% revenue realization, does not hold good, as the respondents had already directed one Mr. Nasir Hussain Mansuri, XEN to Banswara, vide order dated 03.09.2021 to look after the work of the post of SE (O&M), AVVNL, Banswara, and that one Mr. Inder Raj Meena took over charge of the said post on 01.10.2021 pursuant to (Downloaded on 25/02/2022 at 08:23:37 PM) (14 of 19) [CW-1290/2022] order dated 30.09.2021, passed by the respondents. Thus, as per learned counsel, in light of the same, it is clear that the petitioner's services were in fact not required at Banswara.
11. Learned counsel for the petitioner lastly submits that assuming without admitting that the transfer policy is inapplicable, the respondents are still required to show that the transfer orders impugned herein are based on valid considerations, and such stand of the respondents is required to be substantiated by placing adequate material on record.
12. On the other hand, Mr. Ravi Bhansali, learned Senior Counsel assisted by Mr. Rakesh Arora, Mr. Deepesh Beniwal and Mr. Vipul Dharnia appearing on behalf of the respondents submits that the order dated 17.01.2022, by which the petitioner was placed under the Awaiting Posting Order was passed on account of certain complaints having been received against the petitioner, and thus, it has been incorrectly pleaded on behalf of the petitioner that the same was done with an intention to circumvent the interim order dated 02.09.2021 passed by this Hon'ble Court; and that the placement of the petitioner as Awaiting Posting Order was to ensure that the inquiry into such complaints be conducted in a just, fair and reasonable manner.
13. Learned Senior Counsel for the respondents further submits that the action of placing the petitioner as Awaiting Posting Order was therefore based on fresh complaints received against him, and thus, it has no nexus with the earlier transfer orders having been passed on account of certain administrative exigencies.
14. Learned Senior Counsel for the respondents further submits that the petitioner's transfer from Chittorgarh to Banswara was (Downloaded on 25/02/2022 at 08:23:37 PM) (15 of 19) [CW-1290/2022] made, owing to his stellar performance and handling of his post; but due to complaints received against the petitioner, he was subsequently placed under Awaiting Posting Order.
15. Learned Senior Counsel for the respondents placed reliance on the judgment rendered by the Hon'ble Supreme Court in Union of India and Ors. Vs. S.L. Abbas, (1993) 4 SCC 357, wherein it was held thus:
"6. An order of transfer is an incident of Government service.. . .
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. . . . . "
16. Learned Senior Counsel for the respondents further submits that the petitioner is holding a much higher post in the hierarchy, and thus, the transfer policy, so referred to, would not apply to the petitioner. Therefore, as per learned counsel, no question as to its violation or ignorance arises in the present case.
17. Learned Senior Counsel for the respondents, in support of the above submission, placed reliance on the order dated 12.11.2021 passed by this Court in Girish Pareek Vs. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 12979/2021), wherein it was held thus:
"After arguing the case for long time, counsel for the petitioner could not convince the Court on the count of precedent law of Dr. Smt. Pushpa Mehta Vs. Rajasthan Civil (Downloaded on 25/02/2022 at 08:23:37 PM) (16 of 19) [CW-1290/2022] Services Appellate Tribunal & Ors., because the petitioner himself is holding senior post of Additional Chief Engineer, the petitioner sought to give up his claim with liberty to move representation before the respondents to be considered by them if they could accommodate him at a nearer place, as the place where the petitioner has been transferred is about 600 Kms away from his present place of posting."
18. Learned Senior Counsel for the respondents further submits that the petitioner also managed to achieve revenue realization in the Chittorgarh Circle with an efficiency of 100.19% during the Financial Year 2020 - 21 and had received an appreciation letter for the same on 25.05.2021 by the Managing Director of AVVNL and was also issued a Commendation Certificate, for the same on 15.08.2021 by the District Administration for his exemplary work during the COVID-19 pandemic.
19. Learned Senior Counsel for the respondents further submits that the Banswara Circle of the AVVNL was under-performing as during the Financial Year 2020-21 the Transmission and Distribution losses in the AVVNL increased from 15.84% to 16.12% and the revenue realization remained at only 98%, which was the poorest performance as compared to the other circles of the Ajmer DISCOM; the MBC (Meter Billing and Collection) system was also to be implemented within the stipulated time period as notified under the concerned guidelines and that the petitioner, being a well performing Grade I Officer, was transferred to Banswara with the task of overseeing the same.
20. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited at the Bar. (Downloaded on 25/02/2022 at 08:23:37 PM)
(17 of 19) [CW-1290/2022]
21. This Court takes note of the categorical submission made by the learned counsel for the petitioner, and the documents of transfers placed on the record to the effect that the petitioner has been transferred six times in a span of less than five years.
22. This Court further observes that under Rule 25A of the Rajasthan Service Rules, 1959, reproduced hereinabove, which indisputably applies in the present case, there are clearly stipulated conditions upon which a government servant may be kept on the status of Awaiting Posting Orders. This Court also takes note of the conditions so stipulated under the statute, viz. on return from leave, on reversion to parent department from deputation within India, on return from abroad after completion of training or foreign assignment, on return from training within India, Awaiting Posting Order after making over charge of the old post under the direction of Appointing Authority, non accep tance of the officer on transfer to another post, to save a Government servant from reversion; none appears to be fulfilled in the present case.
23. The stand of the respondents that the petitioner was placed as APO, due to an inquiry being conducted against him by the concerned authority is ultra vires the conditions laid down in the statute under Rule 25A of the Rules of 1959, and is therefore, not accepted by this Court.
24. This Court however, observes that the transfers of the petitioner so made by the State respondents were within the exercise of their powers, and the same was done on count of a logical administrative exigency that has been placed on the record of the case, and explained to the satisfaction of this Court. It is (Downloaded on 25/02/2022 at 08:23:37 PM) (18 of 19) [CW-1290/2022] evident that the petitioner was a Class I Officer, holding the post of a Superintending Engineer at the AVVNL, with an exemplary service record; he was posted at Chittorgarh, and that he was transferred to the Banswara Circle, with a view to improve performance and revenue realization in that circle, and to oversee the implementation of the Meter Billing and Collection System at the said Circle, which at the time was the poorest performing in the Ajmer Circle of the Electricity Department of the State. It is therefore, clear that the transfer so made was made with good reason.
25. This Court also takes note of the fact that the transfer policy, placed alongwith Annexure - 10 of the second petition, clearly lays down that under Point 1.1 of the policy, in the ordinary course, an officer/employee of the AVVNL may be transferred once in a year during the months of April-May; but under special circumstances, such transfer can be done at any time. 25.1 Under point 2.1, he may be not transferred unless he completes a period of 2 years at the posting, however this condition may be bypassed in the circumstances, viz. promotion/ demotion/completion of tenure on the post; upon the recommendation of the preliminary enquiry officer holding enquiry pursuant to the complaint(s) made against the concerned officer/employee; keeping in mind the work performance and experience of the person concerned, he may be transferred in connection with any special work upon the approval/recommendation of the Managing Director; if any circumstances arise under point 3.6 of the policy. (Downloaded on 25/02/2022 at 08:23:37 PM)
(19 of 19) [CW-1290/2022] 25.2 Under point 3.6 of the policy, if he or his spouse or child is facing any serious health issue; if he is to retire within a period of two years or less, may request to be posted at place of his/her choice; if the concerned is a widow, or has been deserted or is a handicapped or specially abled person.
26. This Court also observes that the contention of the petitioner, that the transfer policy laid down by the respondents was not duly followed by them, cannot be accepted as the petitioner being a Senior Class I Officer, holding the post of Superintending Engineer at the AVVNL does not fall under the list of employees so enumerated under category 1 viz. Executive Engineer / Assistant Engineer / Junior Engineer, of the schedule of employees under 2.2 of the Policy at Annexure - 10.
27. This Court also takes note of the fact that the petitioner was posted at Chittorgarh for a period of 7 years out of last 12 years of his service, and he cannot be expected to be posted in the same district for an indefinite period.
28. Thus, in light of the aforesaid observations, the Writ Petition No.1290/2022 is allowed, and accordingly, the impugned order dated 17.01.2022 is hereby quashed and set aside. However, this Court does not find any merit in Writ Petition No.11643/2021, and the same is accordingly dismissed. All pending applications stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
3-4-SKant/-
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