1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 1281 of 2006 LOONKARAN V/S STATE & ORS. Mr. PP CHAUDHARY, for the appellant / petitioner Mr. RK SONI for Mr. IR CHOUDHARY (CAVEATOR), for the respondent no.4. Mr. BL BHATI, A.G.A. for respondents no. 1 to 3. Date of Order : 11.5.2006 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. The petitioner by this petition seeks to challenge Annexure-19 dt. 28.2.2006. By this Annexure-19 the petitioner has been transferred from Sindhri to Jaisalmer. It was pointed out to the learned counsel for the petitioner, that the grievance of the petitioner can be ventilated by way of appeal before the Rajasthan Civil Services Appellate Tribunal, in view of the fact, that the order is appealable before the Tribunal, whereupon the learned counsel relied upon two judgments of this Court, being in, Daulal Vs. State of Rajasthan, reported in 1989 (1) RLR-392, and Richhpal Singh Vs. State of Rajasthan, reported in 1998 WLC(UC)-112, and contended, that in 2 Daulal's case it was held, that since the order of Tribunal is not enforceable by the Tribunal, as there is no machinery set up for this purpose, the remedy of appeal is not efficacious remedy, and Richhpal Singh's case was cited for the purpose of pressing into service, the observations made by the Division Bench of this Court, about the nature of effectiveness and efficacy of the hearing of appeals by the Tribunal. Few more judgments including Bank of India Vs. Lekhimoni Das reported in (2000)3 SCC-640, Shashi Gaur Vs. N.C.T. of Delhi reported in 2000(5) SLR-248, Harbanslal Sahnia Vs. Indian Oil Corpn. Ltd. Reported in 2003(2) SCC-107, Whirlpool Corporation Vs. Registrar of Trade Marks reported in (1998)8 SCC-1 etc., were also cited to show the principles propounded therein, about the nature of the bar of the alternative remedy in entertaining the writ petition. Then, the judgment in Ramadhar Pandey V/S State of U.P., reported in 1993(4) JT-72, was relied upon to contend, that the order of transfer should contain reasons. Then, the judgment in Shri Arvind Dattatraya Dhande Vs. State of Maharashtra, reported in JT 1997(6) SC- 229 was relied upon to contend, that where the transfer was effected at the behest of the person interested, it was interfered by the Hon'ble Supreme Court, and the transfer was quashed. Then, coming to the facts, it was contended, that the petitioner has been subjected to frequent transfers, inasmuch as, from the period 9.7.2004 to 28.2.2006, he has been transferred seven times, without any 3 reason. It was also contended, that when the private respondent was transferred vide order dt. 5.9.2005, the present (Annexure-16), that was challenged by him by way of S.B. Civil Writ Petition No. 5653/2005, which was decided on 23.9.2005, and therein observations were made permitting the present respondent no.4 to submit representation within one week pointing out his difficulties, and the competent authority was expected to decide that representation, and according to the petitioner, that representation was decided on 14.1.2005, by being dismissed, notwithstanding that, without any further reason, the impugned order dt. 28.2.2006 has been passed, transferring the petitioner, and in the garb has virtually accepted the rejected representation of the respondent no.4. Thus, it is contended that the order is arbitrary, and is violative of fundamental rights of the petitioner guaranteed by Article 14 of the Constitution. On the other hand Mr. Bhati submitted, that representation was rejected as the merits of the difficulties projected by the present respondent no.4 were considered, and they were not found acceptable, but then that does not prevent the respondents from ordering transfer in administrative exigencies in public interest, which had been done vide Annexure-19. It was also pointed out, that it is not a case of frequent transfers, rather the transfer was effected on 9.7.2004 which was got 4 cancelled by the petitioner on 19.7.2004 itself. Then, it is on 30.9.2004 that he was transferred from Jaisalmer to Sindhri, and since then he is continuing at Sindhri. May be that in the intervening period i.e. on 12.7.2005 he was transferred from Sindhri to Jaisalmer which order was immediately cancelled on 14.7.2005, and then he was again ordered to be transferred from Sindhri to Jaisalmer which again was cancelled vide order dt. 5.9.2005, and thus, the petitioner is there at Sindhri right from 30.9.2004, i.e. around one and a half years. It was also pointed out, that the transfer effected on 30.9.2004, vide Annexure-7, was at the petitioner's own request, and therefore, if after serving at the place of choice for one and a half years, he has been sent back to Jaisalmer, where from he has been sent to Sindhri, it cannot be said, that the order is arbitrary, or is violative of Article 14 of the Constitution of India. Then, Mr. Soni, learned counsel for the respondent no.4 submitted, that the sequence rather shows, that the petitioner is determined to continue to stay at Sindhri, where he had gone on his own choice vide Annexure-7. According to him, it is not a case of frequent transfers. Adopting the arguments of Mr. Bhati, it was submitted, that he had only been transferred from Jaisalmer to Sindhri, where, after remaining there for a period of one and a half years, he has been transferred to Jaisalmer. In these 5 circumstances, even on facts, in view of the availability of alternative remedy, interference under Article 226 is not required to be made. Learned counsel also tried to press into service, the document Annexure R-4/5, to show, that the petitioner did not even receive the relieving order sent to him by registered post, rather refused to receive it, and thereupon his relieving had been published in the news paper, way back on 2.4.2006, still he did not join, till after last adjournment in this case in this Court, where it was listed on 21.4.2006, and was adjourned to today. I may also notice, that at the beginning of the argument, Mr. Bhati submitted, that in pursuance of what transpired on 21.4.2006, the petitioner did appear, and joined in compliance of Annexure-19, as he was assured, that when future transfers will be effected, his matter will be appropriately considered, to which Mr. P.P. Choudhary, learned counsel for the petitioner submitted, that no such thing ever transpired, and he did not join on any such assurance, rather he has instructions to assail the transfer order. I have considered the submissions. I may at this place refer to a later judgment of Hon'ble the Supreme Court, in State of Karnataka Vs. Vishwabharathi House Building Coop. Society & Ors., reported in JT 2003(1) sc- 6 344, wherein in para 42 and 43 it has been held as under:- “42. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess power to execute their own order. 43. It is also well settled that a statutory tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order...” Suffice it to observe that in view of the aforesaid judgment of Hon'ble the Supreme Court, in Viswabarathi's case, it cannot be said, that the judgment of this Court in Daulal's case holds good, as in view of the aforesaid judgment of Hon'ble the Supreme Court, the orders of the Tribunal are enforceable, and the remedy available before the Tribunal is quite efficacious. So far Richhpal Singh's case is concerned, the observations made in the judgment are not at all intended to render the functioning of the Tribunal redundant, as sought to be contended by the petitioner. The observations had been made, only in the context of considering the validity of statute, where under the Tribunal was constituted, and the validity had been upheld. The observations pressed into service are not the ratio of the judgment, requiring to be followed by this Court for the purpose of considering the question of exercising discretion by this Court, as to whether the writ petition should be entertained, or not, in 7 view of the availability of alternative remedy of appeal before the Tribunal. So far the other judgments laying down the principles, about extent of bar, on the ground of availability of alternative remedy are concerned, the principle is not in dispute, therefore, those judgments need not detain me. Likewise in the judgment in Ramdhar Pandey's case the observations were clearly made, about the requirement of giving reasons, where the transfer was made in another cadre, or on ex-cadre post, which is not the case here. So also the judgment in Arvind Dattatraya Dhande’s case is concerned, it is a case on its own facts, which has telling facts. In these circumstances, in my view, no such circumstances have been made out, for persuading me to invoke my 226 jurisdiction, notwithstanding the availability of alternative remedy of appeal before the Tribunal. In that view of the matter, I am not inclined to entertain the writ petition, as the petitioner has alternative remedy. So far submissions made on the validity of the transfer order are concerned, submissions have been made on both the sides, and since I am not inclined to entertain the writ petition on the ground of availability of 8 alternative remedy, I do not stand advised to make any observations on the merits of the transfer order, lest it may prejudice the rights of the either parties before the Tribunal. The writ petition is, therefore, dismissed summarily, on the ground of the petitioner having alternative remedy of appeal before the Rajasthan Civil Services Appellate Tribunal. ( N P GUPTA ),J. /Sushil/