1 S.B. Civil writ petition No. 8428/2009 Mana Ram vs State of Rajasthan & Ors. Date of Order dated 15.12.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. Sandeep Shah, for the petitioner. Mr. Swaroop Singh Shishodia ] Mr. IS Pareek ], for the respondents. <><><> Heard learned counsel for the parties. The petitioner has challenged the order of his transfer dated 25.2.2009 by which he has been transferred from Patwar Mandal Bheenmal to Patwar Mandal Modra by the order of the District Collector dated 25.2.2009 (Annex.1). The petitioner has challenged this order on the ground that petitioner has been transferred just to accommodate respondent no.4 as well as on the ground that transfer order, which has been passed without recording any satisfaction by the Collector that it is necessary in the interest of work or to fill up the vacancies created due to any reason, transfer is necessary. According to learned counsel for the petitioner as per Rule 9 and 412 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (hereinafter referred to as the Rules of 1957) there is a specific bar against the transfer of Patwari and it is specifically prohibited that “no transfer of Patwari should be made to accommodate individuals”. The Collector can transfer a Patwari only on being satisfied “that it is 2 necessary in interest of work or to fill up vacancies created due to various reasons.” Learned counsel for the petitioner relied upon the judgment delivered in the case of Dr. Babu Lal Meghwal Vs. State of Rajasthan & Ors reported in 2005(2) WLC (Raj) 196 and Murlidhar Sharma Vs. State of Rajasthan & Anr reported in 2005(2) 413. Learned counsel for the State as well as learned counsel for the private respondent submitted that the Hon'ble Supreme Court in the case delivered in Mrs. Shilpi Bose & Ors Vs. State of Bihar & Ors reported in AIR 1991 SC 532 held that if the transfer is made by a competent authority on request of an employee then that is not in violation to any mandatory rule and, therefore, the intervention of the High Court was declared illegal in such matter of transfer. I considered the submissions of learned counsel for the parties and perused the facts and the judgments referred above. In the case of Mrs. Shilpi Boss (supra) the Hon'ble Supreme Court held that the court should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rules or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from 3 one place to other. Then Hon'ble Supreme Court held that transfer order issued by the competent authority do not violate any of his legal rights. Then the Hon'ble Supreme Court in the facts of that case observed that where competent authority issue transfer order with a view to accommodate a public servant to avoid hardship, the same cannot be and should not be interfered with by the court merely because transfer orders were passed on the request of the employees concerned. However, here there is specific rule for affecting transfers of Patwaris. Sub-rule (ii) of the Rules of 9 which is relevant and the same is reproduced as under: - “(ii)Transfers of patwaris should not be made unless the officer has satisfied himself that such transfer are necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of a Patwari. The Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charge to his successor. The Tehsildar may, with the approval of the Sub-Divisional Officer, get the incomplete record completed by employing extra staff and paying such staff by deducting the required amount from the salary of the negligent Patwari. Then unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action” The Rule 412 is also relevant and the same is reproduced as under: “412.Administrative matters pertaining to Patwaris.-The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are ordinarily undesirable and should on no count be made to suit the convenience of individuals. They can only be made under the conditions given in paragraph 9 and these conditions should be strictly observed. In order to avoid unnecessary 4 transfers, Patwaris picked out for transfer, should, so far as possible be exchanged with one another rather than with other Patwaris. Transfers by way of punishment are not contemplated by law. Moreover, a transfer is hardly a substitute for punishment.” The validity of these rules are not under challenge and it is a restriction put upon the employers having with their rights to exercise powers of transfer in certain circumstances, and particularly, in the matter of transfers of Patwaris. The ordinary rule of law is that employers have vested right to transfer the employees in administrative exigencies. The Hon'ble Supreme Court in the case of Mrs. Shilpi Boss (supra) held that the transfer made by the competent authority on request of the employee obviously, which will accommodate him and consequently may be of misplacement of other is a valid order. The employer are supposed to act in the interest of the employees also and the employees also can expect reasonableness from the employer and, therefore, they can show their hardship on the basis of which they can seek their accommodation but the sole discretion vests in the employer, who may accept that hardship of the employee and accommodate that employee on the desired post as also may accommodate, may be due to the hardship of other person, who is likely to be displaced. Be it as it may be, the Hon'ble Supreme Court in the case of Mrs. Shilpi Boss (supra) itself clearly held that if the order is not violating the statutory rules then that order cannot be challenged and the court should not 5 interfere in such matters. Here in this case, the petitioner submitted that even State is not challenging the validity of rule taking away some right of the employer in the matter of transfer by providing restriction over the transfer of Patwari, which is clear from Rule 412 which provides that transfer of Patwari are ordinarily undesirable then sub-rule (ii) of Rule 9 says that the transfer of Patwari should not be made unless the officer satisfied himself that such transfer are necessary in the interest of efficiency of work. Since in this matter only limited controversy has been raised and even it has not been made an issue whether these provisions are mandatory or directory in nature, therefore, following the decisions referred above delivered by the coordinate bench of this court and in view of the fact that even the respondents' only contention is that the employer has power to transfer and since order has been passed by competent authority, therefore, the order is valid ignoring the rules above, therefore, the writ petition of the petitioner is allowed. The order dated 25.2.2009 qua the petitioner and respondent no.4 is concerned, is set aside and therefore, the order of the tribunal dated 7.8.2009 cannot sustained and the same is also set aside. [PRAKASH TATIA], J. cpgoyal/-