Rajasthan High Court - Jodhpur
Gaya Prasad Sinsinwar vs State & Ors on 22 November, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO. 7375/2014 PETITIONER:
Gaya Prasad Sinsinwar S/o Shri Padam Singh, aged about 42 years, by Caste Jat, Resident of 9/43, Mukta Prasad Colony, Bikaner.
VERSUS RESPONDENTS:
1. State of Rajasthan through its Secretary Department of Technical Education, Jaipur.
2. Government Engineering College Bikaner Karni Industrial Area, Pugal Road, Bikaner Through its Principal.
3. Principal Government Engineering College Bikaner Karni Industrial Area, Pugal Road, Bikaner.
4. Joint Secretary Department of Technical Education, Government of Rajasthan Secretariat, Jaipur.
Date of order : 22nd November, 2016 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. Rajesh Choudhary, for the petitioner.
Mr. S.S.Ladrecha, AAG with Mr. Vikas Choudhary, for the respondents.
<><><> By way of the instant writ petition, the petitioner Gaya Prasad Sinsinwar has approached this Court for 2 assailing the order Annexure P/11 dated 9.10.2014 whereby the petitioner was transferred and relieved by the respondent no. 2 Government Engineering College, Bikaner for joining duty at his parent college at Government Engineering College, Bharatpur.
It may be mentioned here that while entertaining instant writ petition this Court passed an interim order on 17.10.2014 staying the effect and operation of the impugned order.
Facts in brief are that the Engineering College Society (G.E.C.) Bikaner is a society duly registered under the Societies Act as an autonomous body funded and governed by the State Government. The Department of Technical Education, Government of Rajasthan, way back in the year 2004 granted approval and sanction of the Finance Department for creation of various posts under the said Society. Initially three posts of Reader/Associate Professors in Electronics & Communication Branch were sanctioned which number was later on raised to five under the authority of the State Government. The Department of Technical Education, Government of Rajasthan, vide its correspondence/ communication dated 3.2.2007 approved establishment of Government Engineering 3 Colleges at Bharatpur and Jhalawar under the Engineering College Society, Bikaner. An advertisement dated 7.6.2007 was issued by the Principal Engineering College, Bharatpur inviting applications for the post of Reader/Associate Professor in Electronics & Communication Engineering. The petitioner, claiming eligibility and qualification applied for the said post and was duly selected and appointed on the post of Reader/Associate Professor in Electronics & Communication Engineering vide order dated 4.8.2007. The appointment order was issued with approval of the Chairman, Executive Council, Engineering College Society, Bikaner. The President Executive Council, Engineering College, Bikaner, vide order dated 17.4.2008 directed transfer of the petitioner's services from the Engineering College, Bharatpur to Engineering College, Bikaner. It has been asserted by the petitioner that the transfer order was also made under the approval of President, Engineering College Society, Bikaner. As a consequence, the Principal, Engineering College, Bharatpur issued an order dated 21.4.2008 transferring the petitioner's services from Engineering College, Bharatpur to Engineering College, Bikaner. In compliance of the transfer order the petitioner joined 4 his services at Engineering College, Bikaner as Reader/Associate Professor (Electronics & Communication Engineering). The Engineering College Society, Bikaner was splitup in two independent societies viz. Engineering College Bikaner Society and Engineering College Bharatpur Society, Bharatpur w.e.f. 1.5.2008. Engineering College Bharatpur was shifted under administrative control of Engineering College Bharatpur Society. The petitioner however continued to serve at the Bikaner Engineering College falling under Bikaner Society. Acting under the direction of Minister for Technical Education, Government of Rajasthan and President Governing Council, Engineering College Bikaner Society and Engineering College Bharatpur Society dated 30.5.2008 an office order dated 31.5.2008 was issued as per which the petitioner's services were absorbed by the Engineering College Society Bikaner as Reader/Associate Professor in Electronics & Communication Engineering against a vacant post. It is averred by the petitioner that both the societies after partition, adopted their own rules and regulations. In the Rules and Regulations of Engineering College Society Bikaner there is no provision authorising or permitting transfer of 5 employees to any other employment or society. Vide order dated 7.5.2012 the Principal Secretary, Technical Education Department dissolved the powers of the Executive Council which thereafter vested with the Minister holding charge of the Department. The meeting of Board of Governors Engineering College Bikaner Society considered a proposal for the return of petitioner and other two faculty members from the Engineering College Bikaner to Engineering College Bhartatpur, however, the proposal was postponed. It is further asserted that the two posts of Associate Professor in the (Reader) are lying vacant in the Engineering College, Bikaner. The petitioner was directed on 6.7.2010 to take charge of the post of Principal Engineering College Bharatpur on temporary basis. However, the order was thereafter cancelled on 16.3.2011 and the petitioner was relieved so as to continue his services with Engineering College, Bikaner. The impugned order dated 9.10.2014 was issued by the Principal Engineering College, Bikaner with a direction that the petitioner should be relieved from his post from Bikaner so as to report and join duty at Engineering College, Bharatpur. The said order is assailed in the instant writ petition.
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The respondents have filed a reply to the writ petition wherein the assertions made by the petitioner in his pleadings have been rebutted. The assertion made by the petitioner that he was absorbed in the services of the Engineering College, Bikaner is strenuously countered. It is contended that the transfer of the petitioner's services from Engineering College, Bharatpur to Engineering College, Bikaner was effected for maintaining discipline because the petitioner was indulging anti-disciplinary activities at Bharatpur with one Ravi Gupta. Thus for maintaining tranquility in Engineering College, Bharatpur, the petitioner was transferred to Engineering College Bikaner. The assertion made by the petitioner regarding the partition and splitting up of the Societies i.e. governing the Engineering College, Bharatpur and the Engineering College, Bikaner is admitted in the reply. The assertion made by the petitioner that his services were kept in Engineering College Bikaner is denied. It is contended by the respondents in the reply that the word "absorbed" used in the order Annexure P/7 dated 31.5.2008 was mentioned in a different and casual sense. The respondents have principally taken the stand that the petitioner's services continue to be 7 retained at Bharatpur Engineering College and thus no illegality can be found in the order dated 9.10.2014 whereby the petitioner was ordered to be relieved from Bikaner College so as to join at his parent college at Bharatpur. However, it is relevant to mention here that the allegation regarding the so called anti-disciplinary activity of the petitioner at Bharatpur is not substantiated by any document whatsoever.
The petitioner has filed a rejoinder to the reply wherein he has reiterated that he was never subjected to any action for alleged indiscipline either at Bharatpur or at Bikaner. A counter affidavit of the officer-in- charge has been submitted by the respondents annexing therewith, certain documents to support the allegation that the petitioner's transfer from Bharatpur to Bikaner was necessitated because of anti-disciplinary activities.
Mr. Rajesh Choudhary, learned counsel for the petitioner relied upon the order dated 23.11.2015 passed by the Jaipur Bench of this Court in S.B.Civil Writ Petition No. 10947/2014 Dr. Ashwini Sharma Vs. State of Rajasthan & Ors. and urged that as the institutions concerned i.e. Engineering College Society, Bikaner and Engineering College Society, Bharatpur are 8 two independent autonomous bodies, interse transfer of employees of these institutions is impermissible. Thus, he urged that the writ petition deserves to be accepted and the impugned order being grossly illegal unjust and without jurisdiction should be quashed and set aside.
Per contra Mr. Ladrecha, learned AAG representing the respondents vehemently opposed the submissions advanced by the petitioner's counsel. He urged that the petitioner was found indulged in the anti disciplinary activities at Bharatpur and thus in order to maintain tranquility it became essential to transfer him from that place. After some time when tensions eased out at the Bharatpur College, a rightful decision was taken vide order Annexure P-11 dated 9.10.2014 to relieve the petitioner and to return him to his parent college. He urged that the decision to send the petitioner back to Engineering College, Bharatpur was taken after due approval of the Competent Authority and therefore the same does not require interference in the writ jurisdiction of this Court. He drew the Court's attention to the note sheet dated 11.4.2008 issued by the Member Secretary, Engineering college Bikaner Society as per which the process to send the petitioner back to 9 Bharatpur was initiated way back in the year 2008. However, at that point of time Bharatpur College expressed that the services of the petitioner were not required and thus immediate decision could not be taken. The meeting of the Board of Governors was again convened on 13.9.2013 wherein the Principal of GEC, Bharatpur requested that Faculty Members of the Bharatpur College may be returned. Thereupon the Board of Governors took a decision to relieve the petitioner and to send him back to Bharatpur whereafter the order impugned dated 9.10.2014 came to be passed. Thus, as per him the said impugned order does not call for any interference and the writ petition is liable to be rejected.
I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
The following facts are admitted from the pleadings of the parties:-
1. That at the time of creation of the Government Engineering College Bharatpur it was under the administrative control of Engineering College Society, Bikaner an autonomous institution. The said situation prevailed till the date the petitioner was transferred 10 from Bikaner to Bharatpur.
2. Vide order Annexure P-7 dated 31.5.2008 the petitioner's services were absorbed on a vacant post of Reader/Associate Professor in Electronics & Communication Engineering at Bikaner.
3. Admittedly a separate Engineering College Society was formed at Bharatpur in the year 2008 and the administrative control of the G.E.C. Bharatpur vests in such Society since thereafter.
4. Both the societies i.e. one G.E.C. Bikaner and G.E.C. Bharatpur are autonomous bodies having their own constitution, Rules and Regulations.
5. As per the Rules adopted by the Bikaner Engineering College Society, transfer of an employee from one society to another is not permissible.
In backdrop of these admitted facts, this Court is of the firm opinion that as the petitioner's services were without any doubt absorbed by the Government Engineering College, Bikaner under the directions of Government way back on 31.5.2008, the service conditions of the petitioner including the transfer etc. are to be governed by the Rules & regulations of Engineering College Society Bikaner only. There being no provision in the Rules adopted of the Bikaner 11 Society so as to permit transfer of an employee from one institution to another, the action of the respondent Principal Engineering College, Bikaner in directing transfer of the petitioner from G.E.C. Bikaner to G.E.C. Bharatpur is absolutely illegal and arbitrary and totally without jurisdiction.
The so called anti disciplinary activity of the petitioner at Bharatpur on the strength whereof the impugned order was sought to be defended is nothing but a figment of imagination. There is no material whatsoever on record to satisfy the Court that the petitioner ever indulged in anti disciplinary activities at Bharatpur. Had there been any iota of truth in the allegation, the respondents could have presented on record the disciplinary action if any taken against the petitioner for such misconduct. Thus, this Court is of the firm opinion that the stand taken by the respondents in their reply is totally unsubstantiated and conjectural.
A controversy ad idem to the one at hand was examined by a Single Bench of this Court at Jaipur in Dr. Ashwini Sharma's case (supra) wherein it was held that an employee cannot be transferred from one autonomous organization to another.
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Consequent to the above discussion, this Court is of the opinion that the action of the respondents in attempting transfer and relieve the petitioner from G.E.C. Bikaner to G.E.C. Bharatpur vide order dated 9.10.2014 is absolutely illegal and arbitrary. The impugned order was passed 'absque auctioritate legis' and cannot be sustained.
The writ petition thus deserves to be and is hereby allowed. The impugned order Annexure P/11 dated 9.10.2014 is hereby quashed and set aside. No order as to costs.
(SANDEEP MEHTA), J.
/Sushil/