1 I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN AT JAI PUR BENCH, JAI PUR Mu r ar i Lal & Or s. V/ s. Th e St at e of Raj ast h an & Or s. ( S.B. CI VI L W RI T PETI TI ON NO. 6 2 5 0 / 1 9 9 6) Dat e of Or der : 2 7 / 0 9 / 2 0 0 8 PRESENT HON'BLE MR. JUSTI CE RAGHUVENDRA S. RATHORE Mr. S.C. Mittal, for the petitioner(s). Mr. A. Pareek on behalf of Additional Advocate General. By t h e Cou r t : ( Or al) . This writ petition has been filed by the petitioners, praying that the orders dated 12.12.1996 and 13.12.1996 (Annexure-12 to Annexure-15) be quashed and set aside. Further, it is prayed that directions be issued to respondents No. 1 and 2 to hold performance test and regularise the services of the petitioners. Further, the prayer made by the petitioners is that directions be issued to respondent No. 3 to take the petitioners in employment, if it is found that they are not entitled to earlier relief. 2. Broadly speaking, the facts of the case are that all the four petitioners were appointed on the post of L.D.C. in the Judgeship of Dholpur, on adhoc basis after regular selections under the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1986. The particulars of each petitioner are as under: 2 ( A) Mu r ar i Lal- Petitioner No. 1 was appointed as L.D.C., on adhoc basis under Rule 23(3) of the Rules of 1986, by respondent No. 3 on 25.08.1987. He joined his service on 27.08.1987. Thereafter, the petitioner Murari Lal appeared in the Lower Division Clerk Recruitment Test, 1987 conducted by respondent No. 3 and was successful. He was at serial No. 9 in the merit. Thereafter, he submitted an application for transfer from Dholpur Judgeship to a post under the State of Rajasthan. His application was forwarded by the learned District and Sessions Judge, Dholpur, respondent No. 3 to the Secretary for Law and Legal Affairs Department, Government of Rajasthan, respondent No. 2. It is to be noted that respondent No. 3, in his forwarding letter, had specifically mentioned that the information in accordance to the Rajasthan High Court Circular dated 21.06.1976 is being furnished, which included that the lien of the applicant shall not be retained after his transfer. On consideration of the application and recommendation made by respondent No. 3, the Secretary Law and Legal Affairs, Government of Rajasthan accepted the request for transfer and issued an order on 07.07.1988 (Annexure-3). Accordingly, the petitioner Murari Lal was posted in the office of Special Public Prosecutor, Dholpur, which he joined on 15.7.1988. ( B) Moh an Lal Kaushik - Petitioner No. 2 was appointed, on adhoc basis under Rule 23(3) of the Rules of 1986, by respondent No. 3 as L.D.C. by order dated 16.03.1989 3 (Annexure-5). He joined his duty on 18.03.1989. Subsequently, he had appeared in the written test conducted under the Rules of 1986 and was declared successful on 14.03.1990. He secured 14 th position in the merit. The petitioner Mohan Lal Kaushik had also appeared in the typing test conducted by Rajasthan Public Service Commission and was declared successful (Annexure-7). Later on, he submitted an application for transfer from Dholpur Judgeship to a post under the State of Rajasthan. His application was also duly forwarded by respondent No. 3, in consonance with the Rajasthan High Court Circular dated 21.06.1976 to respondent No. 2. It was also specifically mentioned in the forwarding letter issued by the learned District Judge that no lien will be retained after the transfer. The respondent No. 2 had, after due consideration, accepted the application and ordered for transfer of the petitioner Mohan Lal on 09.07.1990. The said order reads thus: - राजः थान सरकार िविध एवं वैिधक कायर् िवभाग (राजकीय वादकरण) बमांक:-एफ.12 (4) राज/वाद/88-TT जयपुर,िदनांक: 9.7.90 आदेश ौी मोहन लाल कौिशक, किनं ठ िलिपक, कायार्लय िजला एवं सैशन न् यायाधीश, धौलपुर का अन् तरिवभागीय ः थानान् तरण हो जाने के फलः वरूप ौी कौिशक का पदः थापन कायार्लय राजकीय अिधवक् ता, जयपुर में िरक् त पद पर िकया जाता है। ौी कौिशक की विरं ठता इस िवभाग में कायर्रत किनं ठ िलिपकों से किनं ठतम होगी। तथा इन् हें याऽा भत् ता एवं कायार्रम् भ समय देय नहीं होगा। The petitioner Mohan Lal was posted in the office of Government Advocate, Jaipur which he joined on 28.07.1990. 4 ( C) Mansu k h – Petitioner No. 3 was appointed, on adhoc basis under Rule 23(3) of the Rules of 1986, on the post of L.D.C. by the respondent No. 3, vide his order dated 03.03.1989. He joined his duty on 07.03.1989. Thereafter, he applied for his transfer from Dholpur Judgeship to a post under the State of Rajasthan. His application was duly forwarded by respondent No. 3 after giving the requisite information, as per the Circular of the High Court dated 21.06.1976. In this case also, it was given out by respondent No. 3 that his lien will not be retained after the transfer. The respondent No. 2 had then, after due consideration, accepted the application for transfer and issued an order dated 26.11.1990. He was posted in the office of Special Public Prosecutor, Bharatpur, which he joined on 01.12.1990. ( D) Pr am od Ku m ar Gu pt a – Petitioner No. 4 was appointed as L.D.C., on adhoc basis by the respondent No. 3, under Rule 23 (3) of the Rules of 1986, vide his order dated 03.03.1989. He joined his service on 04.03.1989. Subsequently, he applied for his transfer from Dholpur Judgeship to a post under the State of Rajasthan. His application was duly forwarded by respondent No. 3 on 27.10.1990 (Annexure-16) and the forwarding letter reads as under: - 5 ूेषक:- िजला एवं सैशन न् यायाधीश, धौलपुर (राज.) ूेिषित:- ौीमान िविध सिचव महोदय, सिचवालय राजः थान सरकार, जयपुर (राजः थान) िवषय:- किनं ठ िलिपक के पद पर न् याय िवभाग, धौलपुर से िविध िवभाग,शासन सिचवालय, में धौलपुर पर िरक् त किनं ठ िलिपक के पद पर ः थानान् तरण के बम में। __________________________________________________ महोदय, इस न् याय्षेऽ में कायर्रत ौी ूमोद कुमार गुप् ता, किनं ठ िलिपक न् यायालय मुंिसफ एवं न् याियक मिजः शेट, धौलपुर का ूाथर्ना पऽ आपके िवभाग में धौलपुर मुख् यालय पर ः थानान् तरण चाहने हेतु ूः तुत हआ है ु , जो मूल ही उिचत एवं आवँ यक कायर्वाही हेतु संलग् न कर ूेिषत है। माननीय राजः थान उच् च न् यायालय के पऽ बमांक- जी/1/ए.4/(ए)/70/608 िदनांक- 21.6.76 के अनुसार वांिछत सूचना िनम् नूकार है:- 1. ौी गुप् ता की िनयुिक् त िदनांक-4.3.89 से किनं ठ िलिपक के पद पर इस न् याय ्षेऽ में तदथर् रूप से अः थाई तौर पर हई है। ु 2. ौी गुप् ता आपके अधीनः थ कायार्लय में ः थानान् तरण होने पर विरं ठता एवं याऽा भत् ता का क् लेम नहीं करेगें और ः थाई/अः थाई किनं ठ िलिपक से किनं ठ रहने को तैयार है। 3. ौी गुप् ता का ः थानान् तरण आपके िवभाग में होने पर उन् हें इस िवभाग से कायर्मुक् त कर िदया जावेगा। 4 ौी गुप् ता इस न् याय्षेऽ में अः थाई होने से उनका इस न् याय्षेऽ में (lien) िलयन नहीं रहेगा। संलग् न:- मूल ूाथर्ना पऽ ौी ूमोद कुमार गुप् ता, किनं ठ िलिपक The respondent No. 2 had, after due consideration, accepted the application for transfer by his order dated 15.11.1990. The petitioner Promod Kumar Gupta then joined in the office of Special Public Prosecutor, Dholpur on 20.11.1990. 3. Since the aforesaid transfers and postings of the petitioners, made by respondent No. 2, they had been working on the post of the State Government without any break or any complaint in respect of the work. Thereafter, in the year 1996 6 i.e. after lapse of more than six years, the respondent No. 2 had ordered that they should join back at Dholpur Judgeship. The said orders are impugned in this writ petition (Annexure-12 to Annexure-15). It had been mentioned in the impugned orders dated 12.12.96 and 13.12.96 that the transfers of the petitioners to Government offices were not valid as the relevant service rules are different. The employees of the State of Rajasthan are governed by Rajasthan Subordinate Office Ministerial Staff Rules, 1957 while the employees of subordinate Courts are governed by the Rules of 1986. It is to be noted here that at the time of issuance of the impugned orders by respondent No. 2, there had been no vacancy of L.D.C. in the office of Dholpur Judgeship. 4. It is by issuance of the orders of transfer to the earlier department i.e. Dholpur Judgeship, passed by the Secretary for Law and Legal Affairs Department, Government of Rajasthan, respondent No. 2 that the petitioners felt aggrieved. Hence, this writ petition has been filed. 5. On the other hand, the respondents No. 1 and 2 have contested the writ petition by way of filing the reply. They have stated that the petitioners were earlier transferred to the respective Government offices by the order of respondent No. 2 wherein it has been specifically mentioned that the appointments were upto the availability of duly selected candidates from Rajasthan Public Service Commission. In case of the petitioner Murari Lal, it had been stated that transfer upto 28.02.1998 or 7 the availability of duly selected candidates by Rajasthan Public Service Commission, whichever is earlier. Similarly in the case of Mansukh (petitioner No. 3), in the transfer order dated 26.11.1990 to the office of Special Public Prosecutor (Dacoity Affected Area), Bharatpur, it had been mentioned that after availability of duly selected candidates his services will be terminated. Likewise, the petitioner No. 4 Pramod Kumar Gupta was transferred on 15.11.1990 wherein it was also mentioned that the transfer was upto availability of duly selected candidates by the R.P.S.C. It has also been stated by the respondents No. 1 and 2, in the reply, that as the Rajasthan Public Service Commission had made available duly selected candidates for appointment therefore the order of transfer of petitioners to parental department was rightly passed. The respondents have also stated that the petitioners were not duly selected candidates by Rajasthan Public Service Commission, as such they could not be posted or transferred to the post in a department of the State Government. In reply to ground 'N' of the writ petition, the respondent No. 1 and 2 have stated that after coming to the case of other candidates in the notice of the State Government their transfers are being cancelled, which were transferred after their appointment under the provisions of Rules of 1986. 6. The respondent No. 3 had also filed a separate reply to the writ petition. A perusal of the said reply goes to show that, by enlarge, it is not very specific. However, in reply to para 7 of the writ petition i.e. in respect of vacancy of LDC in the office of 8 respondent No. 3, it has been stated that, “the post of the petitioners is not vacant before the answering respondents.” 7. The learned counsel for the petitioner has submitted that the impugned orders passed by respondent No. 1 and 2 are illegal and unconstitutional. He has also submitted that the impugned orders had been passed in violation of principle of natural justice. Further, it is submitted that the action of respondent No. 1 and 2 in passing the impugned orders is discriminatory and in denial of equal treatment of the petitioners as against those who are similarly situated. Therefore, it is submitted that the impugned orders are violative of Article 14 of the Constitution of India. Further elaborating the aforesaid submissions, the learned counsel for the petitioners has submitted that no opportunity of hearing was granted to the petitioners before passing of the impugned orders, to unable them to place their version before the respondents for due consideration. 8. While referring to the provisions of the Rules of 1957 such as Rule 7(1), Rule 25(10) and Rule 25(2), it has been submitted by the learned counsel for the petitioners that the transfer of a person can be made to another department on equivalent post with the consent of the Head of Department. It has also been submitted that all persons who had been appointed on adhoc or on daily wages upto 31.03.1990 could be regularly appointed after being subjected to performance test 9 conducted by the Head of Department concerned within a period of three years. He has also submitted that the respondent No. 2 having accepted the applications forwarded by the respondent No. 3, is now estopped from passing the impugned order of transfer and to revert back to the earlier post from where the petitioners had been transferred. The learned counsel for the petitioner has also submitted that the persons similarly situated, as detailed out in the writ petition, are still working on the post of LDC and no action had been taken against them. It has also been submitted that in case of some other persons, performance test had also been conducted but in respect of the petitioners the same had not been conducted even though the petitioners had been appointed prior to 31.03.1990. 9. The learned counsel for the petitioners has further submitted that there is no fundamental difference between the Rules of 1957 and Rules of 1986, as both have been promulgated in exercise of the powers under Article 309 of the Constitution of India by His Excellency The Governor of Rajasthan. The petitioners were appointed as government employees and they still remain to be so, even after their transfer in the new office. In the last, the learned counsel for the petitioners have submitted that by virtue of the impugned orders, the petitioners have been transferred to Dholpur Judgeship, where there had been no vacancy of LDC. The services of the petitioners would virtually come to an end for all practical purposes in case the orders passed by respondent No. 1 and 2 is sustained. The learned counsel for the petitioner has 10 placed reliance on the case of St at e of Raj ast h an vs. Raj ast han Civ il Ser v ices Appellat e Tr ibu nal ( W r it Pet it ion No. 8 2 8 4 / 2 0 0 2) an d 1 6 ot h er w r it pet it ions, decided by t h is Cou r t on 2 5 .1 1 .2 0 0 2. 10. The case of the respondents is, as the learned counsel has reiterated the stand taken in the reply, that the impugned orders of transfer have rightly been passed because the petitioners were not duly selected by Rajasthan Public Service Commission and that when such candidates were made available, the orders of their transfer to the parent department had been passed. Further, he has submitted that the petitioners, being the employees appointed under the Rules of 1986, could not have been allowed to serve in the Government department where the employees are governed under the Rules of 1957, now the Rules of 1999. It has been submitted that by the impugned orders, the petitioners have been sent back to their earlier department and as such no illegality has been committed in issuance of the orders by the respondents. 11. On having considered the facts and circumstances, material on record and the submissions made by the rival parties, this Court is of the view that the writ petition has merit. The factual position which emerges, after considering the material on record, is that the petitioners were duly appointed in Dholpur Judgeship, under Rajasthan Subordinate Civil Courts Ministerial Staff Rules, 1958, against the vacant posts and in regular pay scales (Annexure-1). Thereafter, petitioners 11 submitted applications for transfer to Government offices which were sent, with the concurrence of the Head of the Department i.e. the District Judge, to the State Government. While sending the applications for transfer, the learned District Judge, Dholpur had made reference to the Circular of the Rajasthan High Court No. 70/ 608 dated 21.06.1976 and in compliance thereof the requisite information was also given. It is to be noted that one of the information given was that no lien of the petitioners will be retained after their transfer. 12. The applications with requests for transfer, duly concurred by the Head of Department i.e. the District Judge, Dholpur, were forwarded to the State Government who, after giving their consent, issued the order of transfer for different offices. It was specifically mentioned that the transfers were being made against the vacant posts and the seniority of the petitioners shall be lower to the persons working on the post of L.D.C. in the said department and no T.A. D.A. allowance shall be payable. One such order of transfer reads as under: - राजः थान सरकार िविध एवं वैिधक कायर् िवभाग (राजकीय वादकरण) बमांक:-एफ.12 (4) राज/वाद/88-TT जयपुर,िदनांक: 9.7.90 आदेश ौी मोहन लाल कौिशक, किनं ठ िलिपक, कायार्लय िजला एवं सैशन न् यायाधीश, धौलपुर का अन् तरिवभागीय ः थानान् तरण हो जाने के फलः वरूप ौी कौिशक का पदः थापन कायार्लय राजकीय अिधवक् ता, जयपुर में िरक् त पद पर िकया जाता है। ौी कौिशक की विरं ठता इस िवभाग में कायर्रत किनं ठ िलिपकों से किनं ठतम होगी। तथा इन् हें याऽा भत् ता एवं कायार्रम् भ समय देय नहीं होगा। 12 Even in cases, where the time upto which the transfers were made had been given by respondent No. 2, the petitioners were allowed to be continued even thereafter (Annexure-3). All the petitioners had continued to work upto December 1996. 13. A close look to the impugned orders passed by the respondent No. 2 on 12.12.1996 and 13.12.1996 (Annexure-12 to 15) goes to show that the reason given therein was that the Ministerial Staff of the Subordinate Courts are governed by different rules then that of the Ministerial Staffs of the Subordinate offices of the Government. Therefore, the earlier transfer of the petitioners were considered to be in violation of the rules and the State Government had taken a decision that they may be transferred back to their parental departments. Accordingly, it was ordered that the petitioners be immediately relieved from the present posts and they should give their presence before the District Judge, Dholpur. 14. It is to be noted here that reasons given in the reply of respondent No. 2 that because of availability of the duly selected candidates by the Rajasthan Public Service Commission, that the impugned order of transfer of the petitioners to the parental departments had been passed, cannot be accepted. A perusal of the impugned orders clearly shows that no such 13 reason formed the basis of the order. The respondents had also not mentioned any details as to who and when a candidate was selected by the R.P.S.C. and was available with the respondents to fill up the posts which was being occupied by the petitioners. 15. So far as the applicability of rules to the petitioners, when they were initially appointed in the Subordinate Court and that of the employees of the Subordinate offices of the State Government are concerned as well as the contentions of the respondents that the transfers of the petitioners with the State Government office from Dholpur Judgeship was contrary to Rules, is also neither valid nor acceptable. It may be mentioned that the petitioners were appointed with the Subordinate Courts and it was with the concurrence of the Head of the Department, that is the District Judge, that their applications were forwarded and on the consent having been given for transfer as also order passed by Head of Department of Government office that the petitioners had joined in various offices of Special Public Prosecutor and Government Advocate. It is to be noted that the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 as well as the Rajasthan Subordinate Civil Courts Ministerial Staff Rules, 1986 have been made by the Governor of Rajasthan in exercising of powers conferred by the proviso of Article 309 of the Constitution of India. The employees of the offices, governed by both the aforesaid Rules, are in any case State employees. 14 16. Moreover, Rule 7(1) of the Rules of 1957, as notified on 31.10.1981 reads as follows: - “7(1) a post in any cadre may also be filled by transfer of a person holding a post in another Department corresponding to a post in the cadre concerned, with the concurrence of the Head of the Department.” Furthermore, Rule 27 (xii) provides for inter se seniority of persons transferred from one department to another on a corresponding basis vis-a-vis persons of the Department in which such person has been transferred. The said Rule reads thus: - “(xii) that notwithstanding anything contained to the contrary in substantive part of rule 27, in case of a person holding a post mentioned in sub-rule (2) of the rule 6 of these rules in a Department and has been transferred from one Department to another on the corresponding post in the cadre concerned at his own request in accordance with proviso (1) to sub-rule (1) of rule 7, the inter se seniority of such person vis-a-vis persons of the Department in which such person has been taken on transfer at his own request shall be determined from the date he joins the new Department on the post concerned.” Therefore, in my view, the aforesaid relevant provisions in the Rules of 1957 leaves no room of doubt that the employees appointed and working under the Rules, other than the Rules of 1957, can be transferred to the department being governed by the Rules of 1957 with the concurrence of the Head of Department. Unlike the Rules for High Court Staff, viz. the Rajasthan High Court Staff Service Rules, 2002 which are made by the Chief Justice of the High Court of Judicature for Rajasthan in exercise of powers conferred under Article 229 (2) of the 15 Constitution of India, as mentioned earlier, the Rules of 1957 and the Rules of 1986 are made by the Governor of Rajasthan in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Both these Rules are for the offices of the state Government and there cannot be a bar, much less to say legal one, under any of the said Rules so as to say that the transfer of the employees, initially governed under Rules of 1986, to the offices which are governed by the Rules of 1957 is in violation of the Rules as given by the respondents in the impugned orders. Consequently, the impugned orders passed against the petitioners are wholly erroneous and not sustainable in law. 17. The matter can be looked into yet from another angle. When the applications for transfers submitted by the petitioners were duly considered by, the then the Head of Department i.e. the District Judge, Dholpur and after his concurrence and the consent of the Secretary, Law and Legal Affairs, Government of Rajasthan, respondent No. 2, the lien of the petitioners was not retained in the earlier office. In such a situation, the State Government is bound to continue the petitioners in its office because the lien of the petitioners, which had not been retained at Dholpur Judgeship at the time of transfer in the year 1989, cannot be now revived. As all the posts at Dholpur Judgeship have already been filled up long back, transfer of the petitioners to that office now, would definitely create complications. 16 18. As has been stated by the petitioners and given the names of the persons who are still working under the respondent No. 2 and are similarly situated as the petitioners, goes to show that the issuance of the impugned orders by the respondents suffers from discriminatory action on the part of