1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3514/2004. : : Madan Lal Dhobi Vs. Managing Director, R.C.D.F. & Ors. : : Date of Order 9.1.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms.Ambika Desai for the petitioner. Mr.Manu Bhargava for the respondent (s). Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the order of transfer dated 13.5.2004 by which he was transferred on the post of UDC from Malpura to Sawai Madhopur by the respondents. The petitioner has also challenged the action of the respondents in not assigning him seniority from the date of his initial appointment on the post of Milk Tester and which according to him was for the purpose of his transfer. Ms.Ambika Desai, learned counsel for the petitioner argued that the petitioner was initially appointed on the post of Milk Tester by order of the respondents dated 2 8.11.1977 and was posted in Malpura Branch of the respondents-Rajasthan Cooperative Dairy Foundation Ltd., Jaipur. The petitioner was declared surplus on the post of Milk Tester by order of Chairman, Rajasthan Cooperative Dairy Federation dated 16.12.1981. He was absorbed on the post of LDC with all the benefits of past services and was fixed in the regular pay scale on the post of LDC. Subsequently, two separate Milk Production Cooperative Societies were formed at Tonk and Sawai Madhopur. According to the petitioner he was liable to be retained at Tonk as per his seniority, but he was illegally transferred to Sawai Madhopur. The petitioner objected to action of the respondents in not assigning him seniority from the date of his initial appointment and placing him at Serial No.2. The respondents did not accept his prayer and rejected his objection by order dated 14.2.2003 his objection. The petitioner then again submitted number of representations and ultimately when he was transferred to Sawai Madhopur, he filed present writ petition in which the operation of the order dated 13.5.2004 was stayed by this Court vide its order dated 4.6.2004. Shri Manu Bhargava, learned counsel for the respondents opposed the writ petition and relied on the 3 judgment passed in Ajmer Zila Dairy Employees Vs. Registrar, Rajasthan Cooperative Societies & Anr. : SB Civil Writ Petition No.631/1993 decided on 11.2.1993 and argued that this Court held therein that the Milk Union is not a State within the meaning of Article 12 of the Constitution of India, therefore, the writ petition would not be maintainable. In view of the letter dated 21.5.1981 sent by Project Officer, Tonk Zila Dugdh Utpadak Sahakari Sangh, an additional post of LDC was created for the petitioner because he did not have the requisite qualification for appointment on the post of Milk Tester. Learned counsel relied on the order passed by the Project Officer Tonk Zila Dugdh Utpadak Sahakari Sangh dated 15.6.1981 and argued that in that order it was directed that petitioner was for the time being appointed in the Office of Project Officer, Tonk Zila Dugdh Utpadak Sahakari Sangh and with the direction that his salary shall be drawn againat the post of Office Assistant. This was a temporary arrangement and the petitioner was never absorbed on the post of LDC. Learned counsel argued that subsequently when Sawai Madhopur Zila Dugdh Utpadak Sahakari Sangh was made a separate cooperative society, option was invited but the petitioner opted to stay at Tonk. Since the petitioner was appointed afresh on the post of LDC by order dated 4 15.6.1981, he could not be granted the benefits of past service from the date of his initial appointment on the post of Milk Tester and therefore he also could not be granted seniority from that date. Learned counsel for the petitioner has rejoined and submitted that inspite of the stay order passed by this Court the petitioner was illegally transferred from Malpura to Tonk, therefore, he had to file contempt petition, due to which the respondents withdrew the transfer order, but they have not granted him the benefit of seniority from the year 1977 and for a period of one month when he was kept under transfer he has neither been granted salary nor any leave. Reference was made to the circular dated 18.7.2008 whereby options were called from the employees of the Tonk Zila Dugdh Utpadak Sahakari Sangh whether they wanted to be retained in Tonk Society or would like to go to Sawai Madhopur Zila Dugdh Utpadak Sahakari Sangh. The petitioner opted for Tonk because by virtue of the interim order passed by this Court he continued at Malpura under Tonk Society. I have carefully considered the arguments aforesaid and perused the material available on record. I am not inclined to uphold the objection raised that the Milk 5 Union, Tonk is not a State under Article 12 because the petitioner being an original employee of the Rajasthan Cooperative Dairy Federation is claiming seniority pursuant to the order passed by the Chairman RCDF, against which writ petitions have been entertained in the past always by this Court. The respondents have not disputed the genuineness of the order dated 16.2.1985 but during the course of arguments the learned counsel for the respondents made an attempt to dispute its correctness by saying that petitioner got the same issued in connivance with certain officials of the RCDF but he was not in position to say that this order was forged and it was not issued by the Chairman of RCDF. The order passed by the Chairman of RCDF obviously could not be superimposed by the order subsequently passed by the Project Officer of Tonk Zila Dugdh Utpadak Sahakari Sangh on 15.6.1981. The order dated 21.5.1981, is nothing but an order proposing to create an additional post to accommodate the petitioner and that order cannot have the effect of taking away the benefit which stood granted to the petitioner pursuant to the order dated 8.11.1977. In any case, the order dated 16.12.1985 has been passed by much higher authority of RCDF and four orders 6 after the order passed on 21.5.1981 could not be given a complete go by. Now that the petitioner has opted for retaining in Tonk and that he holds the post of UDC, wherever the respondents have the post of UDC, the petitioner has to be accommodated there. Since the order dated 16.2.1985 granted the benefit of past services to the petitioner from the date of his initial appointment, the petitioner would be entitled to seniority 8.11.1977. The writ petition is accordingly disposed of with directions to the respondents to grant to the petitioner benefits of seniority from the date of his initial appointment and accept his option for retaining him in Tonk Zila Dugdh Utpadak Sahakari Sangh . The respondents may proceed to adjust the petitioner on the post of UDC wherever the administrative exigency may warrant. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.7