IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> Kailash Giri Vs. The State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO.1859/2007. Date of Order :::: 2nd January 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. H.S. Sidhu ] Mr. J.S. Bhaleria ] Mr. Rajesh Grewal ], for the petitioner. Mr. R. Dave, Dy.G.A., for the respondents Nos. 1 to 3. Mr. I.R. Choudhary, for the respondent No.4 ... BY THE COURT: The petitioner, holding the post of Forest Guard, has filed this writ petition on 02.04.2007 assailing the order dated 31.01.2007 (Annex.P/1) issued by the Principal Chief Conservator of Forests, Rajasthan, posting him to Panchayat Samiti, Bilara from Forest Division, Jodhpur in place of the respondent No.4. Briefly put, the petitioner has stated his challenge to the order impugned with the averments that he is holding the post of Forest Guard and his services are governed by the 1 Rajasthan Forest Subordinate Service Rules, 1963; and, having a lien in the Forest Department, he could not have been transferred to another Department without his consent. The petitioner has averred that the seniority of Forest Guards is maintained division-wise and, in the seniority list of Jodhpur Division issued on 11.09.2003 (Annex.P/2), his name has been shown at Sl. No.8; that the respondent Department has again issued a seniority list in the year 2007 and the persons stated at Sl. No. 18 to 60 are junior to him though his name has not been included in the said list. The petitioner has further averred that the respondent No.2 issued an order on 22.07.2003 (Annex. P/3) stating that an employee of Forest Department could be transferred to Panchayati Raj Institution only with his consent; and if such consent is not forthcoming, the junior most person working in the Division is to be transferred. The petitioner maintains that he could not have been transferred from Van Mandal, Jodhpur as he has not given his consent for such transfer to Panchayat Samiti, Bilara and then, the persons junior to him are still working with Van Mandal, Jodhpur; and further, that transfer to Panchayat Samiti, Bilara might affect his seniority and he might be debarred from promotion for his services having been transferred to a Panchayati Raj Institution. 2 This writ petition was taken up for consideration on 03.04.2007 and, while issuing notices for final disposal, this Court ordered stay over effect and operation of the impugned order dated 31.01.2007 (Annex.P/1) qua the petitioner. The respondent No.4 has filed a reply to the writ petition taking objections that the petition against the transfer order is not maintainable; that there are no specific allegations of mala fide against any authority; and that the petitioner has got alternative remedy of appeal before the Service Appellate Tribunal. It has also been asserted that by the order dated 13.04.2003 (Annex.R4/1) the petitioner was transferred to Forest Division, Jodhpur at his request and having thus got transferred to Jodhpur Division, the petitioner wish to remain thereat and hence has filed the present petition. The answering respondent has further contended that by the order dated 22.07.2003 (Annex.P/3) no right, and much less any statutory right, has accrued in favour of the petitioner to be enforced by way of a writ petition, the said one being only an administrative order; and that the transfer is a normal incident of service and no consent is required to be obtained from an employee before transferring him. It has also been contended that the apprehension stated by the petitioner about adverse effect on his seniority is unfounded and even otherwise the petitioner has appropriate remedy as and if his seniority is 3 affected. During the course of hearing of this writ petition, in response to the queries put by the Court, the respondent No.4 has placed on record as Annexure-R4/2 a copy of the Order dated 17.07.2003 issued by the State Government in its Forest Department for transfer of powers and different tasks to the three tiers of Panchayati Raj Institutions, in pursuance whereof the concerned staff from Forest Department was required to be placed with Panchayati Raj Institutions. The respondents Nos. 1 to 3 have filed a separate reply taking the objection about availability of alternative remedy; and have asserted that the impugned order does not suffer from any mala fide or any violation of statutory rules and there is no case for interference, transfer being a normal incident of service. The said respondents have relied upon the circular dated 22.07.2003 (Annexure P/3: a copy again filed as Annexure R/1) as referred by the petitioner and have asserted that the petitioner being the junior most person in Van Mandal, Bilara, has rightly been transferred to Panchayat Samiti, Bilara. The averments concerning seniority list as taken by the petitioner have been put to contention and the respondents have filed a copy of the alleged correct seniority list as Annexure-R/2; and it has been asserted that the petitioner was the junior most person in Panchayat Samiti, Bilara area. It has also been averred that having been transferred on 4 administrative exigency, the seniority of the petitioner shall be retained and it was wrong to contend that by the said transfer order his seniority would be disturbed. The respondents have placed on record the copies of orders issued by the Department in that regard as Annexures-R/3 and R/4. By way of a rejoinder to the reply filed by the respondents Nos. 1 to 3, the petitioner has submitted that he was working with the Forest Department and by the impugned order he was transferred to Panchayati Raj Department though such an order could not have been made without his consent and hence, the impugned order is wholly unauthorised and against the principles of natural justice; and for such grounds, availability of alternative remedy is of no bar. The petitioner has raised objection against the averments taken by the respondents in paragraph 2 of their reply stating as if he was appointed as Cattle Guard and while filing a copy of his initial appointment order and joining report, the petitioner has pointed out that he was appointed as Forest Guard and was posted at Jodhpur. The petitioner has asserted that he was never posted in Van Mandal, Bilara and the provisions of Annexure-R/1 do not authorise his posting to Panchayat Samiti, Bilara; and it was wrong to say that he was the junior most person in Jodhpur Mandal. The petitioner has further asserted that even as per the seniority list produced by the 5 respondents along with their reply (Annexure-R/2), one Jait Ram was the junior most person; and such junior most person alone should have been transferred. The petitioner has alleged that even otherwise, his name has wrongly been shown at Sl. No. 61 in the said seniority list (Annex.R/2) and he has already raised objection against the same that was pending consideration. The petitioner has further stated that so far the Departmental instructions Annexure-R/3 and R/4 are concerned, they are applicable to the cases where employees are transferred within the same Department from one place to another; and the petitioner being transferred from Forest Department to Panchayati Raj Department, such instructions are of no avail. The petitioner has reiterated his stand that he was never posted in the Panchayat Samiti area since the date of his initial appointment and, therefore, according to the petitioner, question does not arise of his transfer from Jodhpur Van Mandal to Panchayat Samiti, Bilara. Earlier, during the course of hearing of this petition, it transpired that despite interim order passed by this Court on 03.04.2007, the petitioner was still working at Panchayat Samiti, Bilara. Upon this Court observing that operation and effect of the order dated 31.01.2007 qua the petitioner was stayed and then, the respondents never sought any clarification or alteration of the interim order passed by this 6 Court and yet seem to have ignored the effect of the order so passed, the learned Deputy Government Advocate prayed for some time to complete his instructions and then, on 10.09.2007, filed an application with additional affidavit and with documents Annexures-R/5 to R/8. By way of such additional affidavit and documents, the respondents have pointed out that the petitioner was relieved by the Department on 23.02.2007 to join Panchayat Samiti, Bilara. While pointing out that the petitioner never stated in the writ petition that he had already been relieved and joined at Panchayat Samiti, Bilara, the respondents have stated that for the said Panchayat Samiti being not a party to this petition, initially the interim order passed by this Court was not complied with but now, the petitioner has been relieved from Panchayat Samiti, Bilara and allowed to join the place he was relieved from. The respondents have, however, raised the objection that the petitioner has suppressed the material facts in this writ petition that he had been relieved on 23.02.2007 (Annex.R/5) and had joined at Panchayat Samiti, Bilara. The respondents have contended that the assertion of the petitioner that he never remained posted at Bilara was incorrect because since the year 2003 he was working in Bilara area with the Forest Officer, Bilara; and a copy of his posting order dated 26.05.2003 has been placed on record as Annexure R/6. It 7 has also been pointed out that the junior most person in the seniority list Shri Jait Ram was working in Forest area Mandore; and a copy of the order dated 29.10.2004 in his relation has also been placed on record as Annexure-R/7. The respondents have again asserted the fact that the petitioner was the junior most person in Range Bilara with reference to a seniority statement (Annex. R/8) of the persons working as on 31.01.2007 in Range Bilara. While emphasizing on the averments taken on behalf of the petitioner as noticed above, learned counsel for the petitioner has submitted that the petitioner could not have been transferred to Panchayat Samiti, Bilara for his having not given any such consent and being not the junior most person even in the seniority list referred by the respondents. Learned counsel submitted that the respondents have failed to adhere to and comply with the requirement of their own circular dated 22.07.2003 (Annex. P/3); and the impugned order, essentially changing his Department without his consent cannot be enforced against the petitioner. Learned counsel further submitted that the transfer order has not been made for any administrative exigency; and that the transfer order is likely to have an adverse effect on his seniority and the petitioner would suffer great humiliation. Learned counsel has argued with reference to the decision of this Court in the case of Hari 8 Mohan Dubey Vs. State of Rajasthan & Ors.: 1989(1) RLR 36 that the petitioner had been transferred only in order to accommodate the respondent No.4 and hence, the transfer order deserves to be quashed on this count too. Per contra, it has been contended on behalf of the respondents that the petitioner is guilty of suppression of material facts and so also of misstatement of facts. It has been contended with reference to the document dated 23.02.2007 (Annex.R/5) that the petitioner never informed this Court of the relevant fact that he had already been relieved before filing of the writ petition. It has further been asserted with reference to the posting order dated 26.05.2003 (Annex.R/6) that the statement of the petitioner that he never remained posted in Range Bilara was not correct. It has been urged that the junior most person in Forest Division, Jodhpur Jait Ram was posted at Mandore not falling within Bilara area, whereat the petitioner alone was the junior most person and has, thus, rightly been sent to the concerned Panchayat Samiti. Learned counsel submitted further that such posting of the petitioner was not dependant upon his consent; and there is no question of any adverse effect on his seniority. It has also been urged that the petitioner has efficacious alternative remedy of filing an appeal to the Rajasthan Civil Services Appellate Tribunal and there is no reason why has he not availed of such statutory remedy of 9 appeal. Learned counsel for the respondent No. 4 has referred to an order dated 19.09.2007 made in S.B. Civil Writ Petition No. 5928/2007: Rameshwar Lal Vs. State of Rajasthan & Ors. as affirmed by the Hon’ble Division Bench on 01.10.2007 in SAW No. 883/2007; and has also referred to the decision of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Joginder Singh Dhatt: AIR 1993 SC 2486. Learned counsel for the petitioner has rejoined with the submissions that the impugned transfer order has essentially been challenged on the ground that the same is wholly unauthorised and without legal foundation; and for such a challenge by way of writ petition, availability of alternative remedy is of no bar. Learned counsel further submitted that the objections regarding concealment or misstatement of facts remain baseless as the petitioner has not concealed or misstated any fact that is material and relevant for determination of the real questions involved in the matter. Having given a thoughtful consideration to the rival submissions and having examined the record of the case, this Court is clearly of opinion that though the objection regarding alternative remedy deserves to be rejected in the fact situation of this case but otherwise, this writ petition deserves to be dismissed with costs, particularly for the conduct of the petitioner. 10 So far the objection regarding availability of alternative remedy is concerned, true it is that the order impugned could have been challenged in appeal before the Tribunal but the fact remains that availability of an alternative remedy is not that of an absolute bar on exercise of writ jurisdiction by this Court. Reference to the orders passed in Rameshwar Lal’s case (supra) while rejecting his writ petition and intra-court appeal in limine remains wholly misplaced. In the said case, the transfer order was sought to be questioned on the grounds of mala fide; and it was noticed that the allegations as made in the writ petition were not stated by the petitioner in a representation submitted earlier; and this court found in the totality of circumstances that there was no special reason to permit the petitioner to by-pass the alternative remedy and the grounds sought to be urged were not making out a case for entertaining the writ petition while ignoring the alternative remedy. In the present case, this court has already entertained the writ petition and has issued notices for final disposal; and the parties have appeared and have filed replies and documents. In the totality of facts and circumstances of the case, at this stage there appears no reason to relegate the matter for another of litigation by way appeal. The objection regarding alternative remedy is, therefore, rejected. 11 However, the conduct of the petitioner in concealment of relevant facts and in misstatement on material facts remains seriously questionable. This writ petition challenging the order dated 31.01.2007 was filed on 02.04.2007, but without disclosing the status of posting of the petitioner at the time of filing of the petition. This Court issued notices for final disposal on 03.04.2007 and stayed operation and effect of the order dated 31.01.2007; and, for the operation and effect of the order impugned having been stayed and then, the respondents having never come out with specific case for vacating or altering the interim order and having not even stated in their reply that the petitioner had already been relieved, earlier, this Court found non-compliance of the interim order questionable when it was pointed out that the petitioner continued to remain posted with Panchayat Samiti, Bilara. The respondents have of course, before conclusion of hearing of this writ petition, proceeded to purge the error on their part and carried out compliance of the interim order passed by this Court by restoring the petitioner to his position obtainable at the time of passing of the impugned order dated 31.01.2007 but now, and however, such proceedings do not palliate the shortcomings in the conduct of the petitioner. The petitioner did not state in the petition that he had already been relieved more than a month before filing of the 12 writ petition. It is but apparent from the document Annexure R/5 that the petitioner had been relieved in pursuance of the order dated 31.01.2007 as back as on 23.02.2007; and the writ petition was filed only on 02.04.2007. It was definitely required of the petitioner while invoking extra-ordinary writ jurisdiction of this Court to have been forthright in his submissions and to have made disclosure of correct facts and relevant status of his posting. Such facts do have material bearing on consideration of this writ petition and of the prayer for interim relief and cannot be dubbed as irrelevant. In the circumstances of this case, suppression of such facts effectively demonstrates unfair conduct of the petitioner, disentitling him from any relief in the Court. Apart from such concealment of material and relevant facts, the conduct of the petitioner in making a fundamental misstatement of fact remains absolutely inexcusable. It has been asserted by the petitioner in no uncertain terms that he never remained posted at Bilara. To quote verbatim, the petitioner has stated in his rejoinder,- “The petitioner never posted in the range Van Mandal Bilara. During his service period, from the date of initial appointment petitioner never posted in range Bilara.” The stand of the petitioner is replete with the assertions that he never remained posted in the area falling within that of 13 Panchayat Samiti Bilara; and on this basis, the petitioner claims that he does not answer to the description of the employee posted within the area in question who could be transferred in pursuance of the circular dated 22.07.2003. The respondents have pointed out that such assertion on the part of the petitioner that he never remained posted at Bilara is incorrect and have placed on record his posting order dated 26.03.2003 (Annex.R/6), posting him to Bilara only! Apart from such posting order, this Court finds that even on 23.02.2007, in pursuance of the order dated 31.01.2007, the petitioner was relieved by none other than the Forest Officer at Bilara (vide Annex. R/5). Thus, it appears that even at the time of the passing of the order dated 31.01.2007, the petitioner was posted at Bilara wherefrom he was relieved to join Panchayat Samiti, Bilara. The assertion of the petitioner as reproduced above turns out to be wrong on a significant and material fact. For suppressing relevant facts and making misstatement on material facts, the petitioner is not entitled for any relief in the Court. This writ petition deserves to be dismissed only for such fatal flaws in the conduct of the petitioner; and, therefore, other aspects of the matter need no dilatation. However, apart from such shortcomings in his conduct, the petitioner does not appear having any case on merits either. The impugned order 14 dated 31.01.2007 is essentially a posting order issued by the parent department of the petitioner. A transfer/posting order ordinarily does not call for interference in writ jurisdiction unless is shown to be suffering from mala fide or from violation of any statutory requirement. The petitioner has failed to make out any such case for interference. There are no allegations of mala fide against any person and no specific case of violation of any statutory requirement has been made out. The circular dated 22.07.2003 cannot be said to be holding out any statutory requirement. The norms laid down by the Department for the purpose of working out transfer of manpower for discharge of work by Panchayati Raj Institutions are only of guidelines; and the petitioner has failed to show any such statutory prohibition whereby his Department cannot post him to a relevant work; or whereby the Department is dependant only upon his consent for such posting. The impugned order does not appear unauthorized or lacking in legal foundation as alleged by the petitioner. There does not appear any violation of the guidelines either. The petitioner was working at Bilara with the Range Forest Officer and at the time of passing of the order in question seems to have rightly been considered the junior most person available thereat. It is pointed out that the only person standing junior to the petitioner in the seniority list (Annex.R/2), namely Jait 15 Ram, was posted at Mandore and not within the area of Panchayat Samiti, Bilara. According to the petitioner, his objection against the seniority placement is pending. Even if any such objection of the petitioner were assumed to be pending, it cannot be said that for the purpose of issuing transfer/posting order, the existing seniority placement, insofar relevant, cannot be taken into consideration by the Department. Suggestions about any effect on seniority or on promotion prospects remain absolutely baseless, rather imaginary; and the respondents have categorically stated in their reply that there is no effect on the seniority placement of the petitioner. So far accommodation of respondent No.4 is concerned, in the first place, it does not appear to be a case of making of order only for the purpose of accommodation of respondent No.4; and in any case, even an order made for the purpose of accommodating an employee cannot be said to be vitiated on that count alone as observed by the Hon'ble Supreme Court in the case of Shilpi Bose Vs. State of Bihar: AIR 1991 SC 532 that,- “If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer order were passed on the request of the employees concerned.” 16 In view of the aforesaid, the decision relied upon by learned counsel for the petitioner in the case of Hari Mohan Dubey (supra) does not lend any support to the case of the petitioner; and on principles, that transfer order is usually taken up for interference on strong case of malafide, rather goes against the petitioner. The net result of the discussion aforesaid is that the petitioner is not entitled for any relief and the petition deserves to be dismissed with costs. The writ petition is, therefore, dismissed with costs quantified at Rs.2,200/- payable by the petitioner to the respondents Nos. 1 to 3. The interim order passed by this Court on 03.04.2007 stands vacated. (DINESH MAHESHWARI), J. [Mohan] 17