1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Natha Ram Choudhary v. Rajasthan Civil Services Appellate Tribunal, Jaipur & Ors. S.B.CIVIL WRIT PETITION NO.6348/2008 under Articles 226 and 227 of the Constitution of India. Date of Order :: 23rd October, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. P.K.Lohra for the petitioner. Mr. Rajesh Bhati] Mr. L.S.Jodha ] for the respondent. .... BY THE COURT : To challenge validity, correctness and propriety of the judgment dated 18.8.2008, passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur, this petition for writ is preferred. Learned Tribunal, by the judgment impugned rejected the appeal preferred by the petitioner against the order dated 2 15.2.2008 bearing No.F2(1)08/Personnel/PCCF/767 passed by the Principal Chief Conservator of Forest, Rajasthan, transferring him as Range Forest Officer, Forest Range, Jaswantpura in District Jalore. The factual matrix necessary to be noticed is that by the order dated 15.2.2008 bearing No.F2(1) 08/Personnel/PCCF/246 (hereinafter referred to as “the order “A”), the Principal Chief Conservator of Forest effected transfers of 138 Range Forest Officers including the petitioner who was transferred from Wild Life Division, Jodhpur to Forest Range, Shiv in Forest Division, Barmer. By the same order the respondent No.4 was also transferred to Forest Range, Jaswantpura in Forest Division, Jalore from Forest Range Shiv in Forest Division, Barmer. The petitioner, in pursuant to the order “A”, stood relieved from Wild Life Division, Jodhpur on 16.2.2008 and joined duties at Shiv on 18.2.2008. Then came an another order dated 15.2.2008 bearing No.F2(1)08/ Personnel/ PCCF/ 767 (hereinafter referred to as “the order “B”) as a corrigendum to order “A” transferring the petitioner to Forest Range, Jaswantpura and to retain the respondent No.4 at Forest Range, Shiv. To assail the order “B” the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, however, due to want of quorum the appeal aforesaid was not taken up for 3 consideration, thus, the petitioner preferred a petition for writ (SBCWP No.1595/08) before this Court and on 12.3.2008 an ad interim order was passed in following terms:- “Issue notice to the respondents returnable within a period of three weeks. Notice be given dasti to learned counsel and the same be sent through registered post also. In the meantime effect and operation of the impugned order is stayed. However, the effect and the operation of the interim order will come into effect only after service on the respondent. List this case after 3 weeks.” The writ petition aforesaid was contested by the private respondent (respondent No.4) and that came to be disposed of on 24.3.2008 in following terms:- “After considering the rival submissions of the parties I am of the opinion that since remedy of appeal exist before the Rajasthan Civil Services Appellate Tribunal and infact petitioner has already preferred appeal thus so far as the present writ petition is concerned, cannot be maintained but at the same time the Court is concern, with the fact that the petitioner should not be made remedyless in view of the facts stated by the learned counsel for the petitioner that the Tribunal is not sitting with corm required to hear the transfer matters. In view of the above fact, while disposing of the present writ petitioner the petitioner is 4 given interim protection by way of direction to the respondents to maintain the status quo as it exists today in regard to the parties i.e. petitioner and respondent No.3 till the constitution and sitting of the Tribunal with the proper corm. It is made clear that the interim order passed above, shall continue only till first listing of the case before the Tribunal after required corm and sitting. The present writ petition is accordingly disposed. However, the Tribunal is given direction to hear this matter on priority.” As stated above, the petitioner in pursuant to the order “A” joined duties at Shiv on 18.2.2008, however, he was relieved from Forest Range, Shiv on 21.2.2008 as a consequent to issuance of order “B”. The respondent No.4 was allowed to continue at Forest Range, Shiv as Range Forest Officer. The petitioner in pursuant to the interim order passed by this Court on 12.3.2008 reported and joined duties at Forest Range, Shiv on 13.3.2008. The respondent No.4 did not choose to hand over charge to the petitioner relating to the post in question, therefore, the charge was assumed by the petitioner on 19.3.2008. After disposal of the writ petition preferred by the petitioner the appeal preferred by the petitioner came up for consideration before learned Tribunal on 9.5.2008 and the order on interim relief claimed by the petitioner was kept reserved. Though no order was pronounced by the Tribunal, the Principal Conservator of Forest, Jaipur 5 on 24.7.2008 sent a letter to the Deputy Conservator of Forest, Barmer to relieve the petitioner from Forest Range, Shiv in the event of non grant of interim direction by the Tribunal. The Deputy Conservator of Forest, Barmer in pursuant to the letter dated 24.7.2008 under an order dated 26.7.2008 relieved the petitioner from duties. In such circumstances, the petitioner again approached learned Tribunal by way of filing an appeal [(1764/08)/ (127/08)] and also preferred a second stay application in the appeal that came up for consideration before the Tribunal on 9.5.2008. The appeal preferred by the petitioner and the second stay application both came up for consideration before the Tribunal on 29.7.2008 but the same were adjourned for 7.8.2008. On 7.8.2008 hearing of both the appeals preferred by the petitioner as well as of the second stay application was concluded and the verdict was pronounced on 18.8.2008. Learned Tribunal rejected the appeal on the count that the transfer is a normal incident of service and that does not require any interference by judicial fora. Learned Tribunal also held that the order of transfer “B” was passed in administrative exigency and just to meet an error caused while issuing the order “A”. While assailing validity of the judgment dated 18.8.2008 the contention of counsel for the petitioner is that the learned Tribunal failed to 6 appreciate that by order “A” the petitioner was transferred from Wild Life Division, Jodhpur to Forest Range, Shiv and the respondent No.4 was transferred from Forest Range, Shiv to Forest Range, Jaswantpura but with certain extraneous considerations an antedated order was passed by the Principal Chief Conservator of Forest to retain the respondent No.4 at Shiv. It is also asserted by counsel for the petitioner that the official respondents were too keen to retain the respondent No.4 at Shiv and, therefore, even without pronouncement of any order on request for interim relief by the Tribunal in the first appeal preferred by the petitioner he was relieved from Forest Range, Shiv on 26.7.2008. No reply to the writ petition has been filed on behalf of the respondents No.1 to 3, however, a detailed reply to the writ petition is given on behalf of the respondent No.4 who as a matter of fact appeared in the matter as caveator. This Court by order dated 18.9.2008 directed the official respondents to keep available the entire record culminating to the order “A” and the order “B” and also the dispatch register giving all reference regarding dispatch of the orders of the transfer referred above. In pursuant to the order dated 18.9.2008 the dispatch register was shown to the Court, however, no 7 notings giving rise to the orders “A” and “B” was made available. On 24.9.2008 the record concerned was also produced and that was kept in possession of the Court. While contesting the petition for writ the stand of the official respondents is that the order “B” was passed in administrative exigency on detection of certain errors in order “A”. On basis of record, it is stated by counsel for the official respondents that on 2.2.2008 the State Minister for Forest instructed the Principal Chief Conservator of Forest not to pass any order of transfer without his prior approval. Accordingly, a list containing names of 138 Forest Range Officers Gr.I and II was forwarded to the Forest Minister and after getting his approval the order “A” was passed on 15.2.2008. On the same day an error was detected in order “A” and to remove that the order “B” was passed on the same day. As per the respondent No.4 the order “B” was passed in administrative exigency, therefore, this Court should restrain itself from interfering with the same. It is also stated that the petitioner is a resident of District Barmer and, therefore, in view of the Government of Rajasthan's circular dated 17.11.1959 read with the order dated 22.6.1989, he could have not been posted in Barmer District. Relevant to note that by the circular dated 17.11.1959 the Government of Rajasthan notified ban on the 8 posting of Gazetted Officers of Forest Department those are Assistant Conservators and Divisional Forest Officers in their home districts and by the order dated 22.6.1989 the post of Regional Forest Officer was declared as a Gazetted post. Counsel for the respondent No.4 also placed reliance upon the judgments of Hon'ble Supreme Court in Union of India v. H.N.Kirtania [(1989)3 SCC 445]; Kendriya Vidhyalay Sangathan v. Damodar Prasad Pandey & Ors. [(2004)12 SCC 299; National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan Shiv Prakash [(2001)8 SCC 574]; State of U.P. & Ors. v. Gobardhan Lal [(2004)11 SCC 402; and N.K.Singh v. Union of India [(1994)6 SCC 98]. The ratio of all the judgments referred above is that the Courts are not required to interfere with the orders of transfers unless those are in violation of mandatory statute or out come of malafides. A reliance is also placed upon the judgment of Hon'ble Supreme Court in Rajendra Roy v. Union of India [(1993)1 SCC 148] to substantiate the contention that the allegations of malafides in transfer matters should always be with firm foundation. Learned counsel for the petitioner while meeting with the stand of the respondents urged that he is aware of settled position of law that the transfer of an employee is a normal incident of service. No employee can claim to stay at the place of his choice and the Courts are not required to 9 interfere with the orders of transfer unless those are in violation of mandatory statutes or are out come of malafides. The allegation of malafides should have firm foundation as held by Hon'ble Supreme Court in Rajendra Roy's case (supra), but in the instant matter on basis of antecedent facts and circumstances and also on basis of the record made available by the official respondents valid inference for issuing the order of transfer “B” with malafides can be drawn. Heard counsel for the parties. At the first, I would like to deal with the issue relating to the circular dated 17.11.1959 pertaining to posting of Gazetted Officers in their home districts. By the circular aforesaid the Government of Rajasthan notified that ban on the posting of Gazetted Officers in their home districts as contained in Government circular dated 25.6.1958 shall also apply to the post of Assistant Conservators and the Divisional Forest Officers in the Forest Department. By an order dated 22.6.1989 the post of Ranger Gr.I (Regional Forest Officer-I) was declared as a Gazetted post. The circular dated 17.11.1959 nowhere refers for application of Government of Rajasthan's order dated 25.6.1958 to the post of Regional Forest Officers. It may be for the reason that the post of Regional Forest Officer was declared as a Gazetted post only in the year 1989. Be that as 10 it may, no order/decision of the Government of Rajasthan is brought into the knowledge of the Court for application of the Government of Rajasthan circular dated 25.6.1958 for the Range Forest Officers. The official respondents while defending the order “B” have also not taken the plea relating to any restriction for the Range Forest Officer in their home district. It is also a fact available on record that number of Range Forest Officers are posted in their home districts including the petitioner who remained in District Barmer for a pretty long time as Range Forest Officers. The objection of the respondent No.4 relating to the posting of the petitioner in his home district, therefore, is having no merit. While examining the order impugned, this Court is to see as to whether the order of transfer “B” is in administrative exigency or is founded on extraneous considerations. As per the record available, the General Administration Department removed ban for effecting transfers in Forest Department, therefore, the State Minister for the Department of Forest by a communication dated 2.2.2008 informed the Principal Chief Conservator of Forest not to make any transfer in Department of Forest without his prior approval. The Department of Forest accordingly prepared a list of 138 Rangers Gr.I and II (Range Forest Officers) for their transfers. The Conservator of Forest-cum-Technical Assistant also 11 remitted the list for proposed transfers pertaining to the post of Forest Guards, Foresters, Assistant Foresters, Ministerial Staff, Class-IV Employees, Drivers and other technical staff to the Minister concerned for prior approval. After getting approval on 15.2.2008 the order “A” was issued whereby the petitioner was transferred from Wild Life Range, Jodhpur to Forest Range, Shiv and the respondent No.4 was transferred from Forest Range, Shiv to Forest Range, Jaswantpura in District Jalore. This fact clearly establishes that a positive decision was taken to transfer the petitioner as well as to the respondent No.4. On 15.2.2008 itself as per the record made available some error was detected in the list of transfers approved by the Minister and, therefore, by a corrigendum “B” the transfer of the respondent No.4 was cancelled and the petitioner was transferred to the Forest Range, Jaswantpura. Pertinent to note here that in pursuant to the order “A” the petitioner was relieved from Wild Life Division, Jodhpur on 16.2.2008 and he joined at Shiv on 18.2.2008. Uptil 21.2.2008 no information was available either with the petitioner or with the competent authorities in Forest Division, Barmer regarding amendments made in the order “A” relating to the transfer of the petitioner and the respondent No.4. The official respondents detected error on 15.2.2008 itself but not communicated to the competent officers at Barmer or even at Jodhpur upto 16.2.2008 when the petitioner was relieved, is quite 12 strange, specially in the circumstances that the order “A” was communicated to the authorities concerned telephonically. It is also worthwhile to note that after 15.2.2008 a ban on transfers was to come in effect and on basis of that an allegation is made by the petitioner for issuance of the order “B” antedated. This Court while hearing the case, repeatedly asked counsel for the official respondents to show the list approved by the Minister, the specific approval given by the Minister for transfers and the error detected with the order “A”, but of no consequence. It was stated that the list said to be approved by the Minister and the approval given by the Minister is not available on record. It is also stated that what was the error while issuing the order which was detected and rectified by order “B” is also not recorded. The facts and circumstances noted above indicates that the official respondents are trying to hide correct and relevant facts from the Court. The respondents should have made available the approval given by the Minister for transfers and also the error that was detected in order “A”, which warranted the issuance of the order “B”. The respondents also failed to satisfy the Court as to why the petitioner was relieved from Forest Range Shiv on 26.5.2008, though the order on request for interim relief was not pronounced by the Tribunal after hearing the matter on 9.5.2008. 13 What it appears that after joining of the petitioner at Shiv the order “B” was passed, it also find support from the fact that the respondent No.4 did not got himself relieved from Forest Range, Shiv upto 21.2.2008. As a matter of fact he did not choose to hand over charge of the post concerned at Shiv to the petitioner during the period from 16.2.2008 to 21.2.2008. The facts narrated above and the surrounding circumstances of the case are adequate to draw a valid inference that the transfer order “B” was not in administrative exigency or in public interest but to adjust and continue the respondent No.4 at Shiv and that was not passed on 15.2.2008, but on some subsequent day. It is also quite strange that the State Minister for the Department of Forest centralised all powers of transfers, including the transfers to the lowest posts in administrative hierarchy, though the Business Rules framed by the Government as per Article 166 of the Constitution of India provides otherwise. Learned Tribunal based it order on the reply filed by the State without examining the record and thus failed to appreciate the correct position. In view of whatever said above, this petition for writ deserves acceptance and, therefore, the same is allowed. The judgment impugned dated 18.8.2008 is quashed and the appeal preferred by the petitioner to challenge the impugned transfer is allowed. The order 14 “B” dated 15.2.2008 bearing No.F2(1)08/ Personnel/ PCCF/ 767, passed by the Principal Conservator of Forest is hereby quashed. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.