1 S.B.CIVIL WRIT PETITION NO.6551/2008 Dinesh Kumar Nagori v. State of Rajasthan & Anr. Date of Order :: 23rd September, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.R.Singhvi for the petitioner. Mrs.R.R.Kanwar ] Mr. Mukesh Rajpurohit] for the respondents. .... By order dated 27.6.2008 the petitioner, a Joint Director, Industries, is transferred from District Industry Center (for short “DIC”) Pali to DIC Jalore vice respondent No.2 Shri Hanuman Singh Rajpurohit, who is a substantive Assistant Director in Department of Industries. The grievance of the petitioner is that as per Government of Rajasthan's decision communicated under the letter dated 15.3.1980 the DIC Pali is an “A” category Center and the DIC Jalore is a “C” category Center and, therefore, as per existing staff pattern being a Joint Director he could have not been posted to DIC Jalore. It is also stated that the petitioner was posted at DIC Pali only on 7.9.2007, thus, his transfer within a short term of nine months 2 is based on extraneous considerations, without having any administrative exigency. On 11.9.2008 a reply to the writ petition was filed on behalf of respondent No.2 Shri Hanuman Singh Rajpurohit stating therein that categorisation of the DICs as communicated under the letter dated 15.3.1980 has already been cancelled by the Government of Rajasthan by an order dated 15.1.2007 and the Joint Directors, Deputy Directors and the Assistant Directors with Industries Department can be posted as General Manager at any DIC in the State. The respondent No.2 also substantiated the administrative exigency in transfer of the petitioner to DIC Jalore vice him on basis of monthly work report till March, 2008 as per that the DIC where the petitioner was posted failed to achieve prescribed target. A reply to the writ petition has been filed today on behalf of the respondent No.1 i.e. the State of Rajasthan and it is signed and sued by the respondent No.2 being officer-in-charge of the case. According to the respondent State no categorisation of DICs as referred by the petitioner exists after 15.1.2007, therefore, no wrong is committed by posting him at DIC Jalore as General Manager. As per the respondent No.1 the DIC Pali where the petitioner was posted prior to his transfer failed to achieve the target prescribed and is treated as a below average 3 Center on basis of the work report upto 31.3.2008. As per respondent No.1, the respondent No.2 is going to retire from service in the month of January, 2009, therefore, he has been transferred to his home town i.e. Pali. A rejoinder to the reply filed on behalf of the respondent No.2 is filed by the petitioner mainly reiterating whatever said in the writ petition and also emphasising that as a matter of fact under the Rajasthan Industries Service created by the Rajasthan Industries Service Rules, 1960, there is no post of General Manager, therefore, the posting of the petitioner in the name of General Manager itself is bad. It is further pointed out that under the order impugned there is no reference regarding posting of the petitioner or of the respondent No.2 as General Manager of the DICs concerned. It is asserted by the petitioner that he has been posted at DIC Jalore as Joint Director where no such post is available. To substantiate the contention a document Anx.6 is placed on record that was supplied to him by the Deputy Director, Industries, Jaipur as per the provisions of the Right to Information Act, 2005. Heard counsel for the parties. At the threshold I would like to mention that it is strange that the respondent No.2 is 4 appointed by the State of Rajasthan as officer-in- charge in the instant matter. The respondent No.2 is a person interested and, therefore, the authorisation given to him to contest this matter on behalf of the State Government is highly improper. It is also pertinent to note that whatever reasons given for transfer of the petitioner came on record first in reply to the writ petition filed on behalf of the respondent No.2. It is the respondent No.2, who first filed reply to the writ petition prescribing administrative exigency for effecting transfer under the order impugned. Whatever exigency given by the respondent No.2 is reiterated by the State Government in its reply. This fact indicates a bias in the matter. In normal course this Court would not like to examine administrative exigency giving rise to an order of transfer, however, in the instant matter the respondent No.2 is officer-in-charge of the case and specific reasons are prescribed in reply to the writ petition filed by the State Government for effecting transfer of the petitioner, thus, examination of their genuineness is warranted. As per the respondent No.1, the transfer of the petitioner was effected mainly on two counts, those are (1)the performance of the DIC Pali was bad whereas the performance of the DIC Jalore was quite good and, therefore, the petitioner was transferred to Jalore and the respondent No.2 was 5 posted at DIC Pali; (2)the respondent No.2 is at the verge of retirement and, therefore, he has been posted at his home town i.e. Pali. The respondents have examined performance of the District Industries Centers upto 31.3.2008 and according to the analysis so made, performance of the DIC Pali was below average. At the same time the performance of the DIC Jalore was treated quite good. It is pertinent to note here that the petitioner was posted at DIC Pali only on 7.9.2007 and, therefore, the maximum time available to the respondents to examine working of the petitioner at Pali was for six months. It is stated by the respondents in reply that despite efforts and despite warnings the District Industries Center, Pali and certain other District Industries Centers failed to achieve prescribed targets, though no material is placed on record to establish the same. During the year in which performance of the District Industries Center, Pali was examined, the petitioner was there only for a period of six months and, therefore, it cannot be said that it is because of him the DIC performed bad. There may be hundred reasons including the administrative capability of and officer to perform good or bad but such performance is required to be assessed objectively and that must be based on adequate examination of all relevant factors. In the present matter the petitioner stayed at DIC, Pali just for a 6 term of six months (term relevant upto 31.3.2008) and on basis of that short term working it shall be too unjust to held the petitioner responsible for bad performance to the DIC. From pondering of facts, what it appears is that the performance of the District Industries Centers concerned is just a pretext taken to justify the order of transfer, but as a matter of fact the transfer is made only to accommodate the respondent No.2 at Pali. The respondent No.1 has specifically stated that the respondent No.2 is at the verge of retirement and, therefore, he has been posted at his home town i.e. Pali. Such kind of accommodations may also in certain circumstances be valid criteria to determine administrative exigency, but the minimum expectation from the Government is that it should come before the Court with true facts and with all objectivity. In the instant matter the notice to show cause was issued to the respondents by this Court on 3.9.2008. Immediately after service of notice the respondent No.2 filed reply to the writ petition giving all necessary details including the administrative exigency for effecting transfer of the petitioner. The respondent No.1 filed reply to the writ petition today and the officer-in-charge of the case is the respondent No.2. Meaning thereby, the Government gave all powers to defend the transfer of the petitioner to the respondent No.2, who is a person 7 highly interested. He may instruct the government counsel in any manner that suits to him. For the State Government the petitioner as well as the respondent No.2 both stands on same pedestal, therefore, an objectivity and impartiality on its part is desired and in present case that is conspicuously missing. In the circumstances, I am of the considered opinion that the transfer of the petitioner vice the respondent No.2 is not based on genuine administrative exigency but on extraneous considerations. For the reasons given above, without entering into the question regarding authority of the respondents to post a Joint Director at DIC Jalore, I am inclined to accept this petition for writ, hence the same is allowed. The order impugned dated 27.6.2008 to the extent it relates to transfer of the petitioner from District Industry Center, Pali to District Industry Center, Jalore is quashed. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.