1 S.B.CIVIL WRIT PETITION NO. 5838/2007 (Akhtar Hussain Vs. State of Rajasthan & others) DATED : 26th September 2007 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.S.P.Sharma for the petitioner BY THE COURT By way of this writ petition, the petitioner seeks to challenge his transfer/posting orders dated 20.01.2006 (Annex.6) and 08.02.2006 (Annex.7); and the order dated 29.08.2007 (Annex.1) passed by the Rajasthan Civil Services Appellate Tribunal, Bench Jodhpur rejecting his appeal [No.68/2006-124/2006]. The petitioner has stated himself with being aggrieved of the order dated 29.08.2007 whereby the Tribunal has proceeded to observe that appeal filed by him was not within its jurisdiction but at the same time has proceeded to dismiss the appeal on merits saying that transfer of the petitioner was made on administrative exigency; and has challenged the transfer/posting orders dated 20.01.2006 and 08.02.2006 on the facts and in the circumstances as set out hereinafter. According to the petitioner, he was appointed on the post of Lower Division Clerk in the year 1978 and thereafter 2 was promoted to the post of Upper Division Clerk; and was discharging his duties at Municipal Council, Makrana District Nagaur without any cause of complaint. It has been averred that the petitioner is an orthopaedic handicapped person having 70% disability in his right upper limb (certificate – Annex.2); that the respondent department issued an order dated 08.07.2005 whereby the petitioner was transferred from Municipal Council, Makrana to Municipal Board, Nagaur and in compliance of this transfer order the petitioner, after getting relieved from Municipal Council, Makrana reported to join at Municipal Board, Nagaur on 17.09.2005 but the concerned authority at Nagaur refused to take him on duty stating that there was no vacant post of UDC available thereat (communication dated 17.09.2005 – Annex.4); that thereafter the petitioner represented his grievance before the competent authority of the respondent department to post him back at Makrana considering his disability; and that the respondent authority passed an order dated 02.12.2005 (Annex.5) whereby the petitioner was posted back at Makrana. The petitioner has stated the grievance in the manner that all of a sudden the authority passed the impugned order dated 20.01.2006 (Annex.6) whereby the petitioner was ordered to remain Awaiting Posting Orders (A.P.O.) at Headquarters, Jaipur. According to the petitioner, the said 3 order was passed without any rhyme or reason and despite the post of UDC being lying vacant at Municipal Council, Makrana. The petitioner has further averred that thereafter by the order dated 08.02.2006 he was ordered to be posted at Municipal Board, Parbatsar though no replacement was provided at Makrana. The petitioner has pointed out that aggrieved of the aforesaid orders dated 20.01.2006 and 08.02.2006 passed by respondent No.1 he approached the Rajasthan Civil Services Appellate Tribunal, Bench at Jodhpur in Appeal No.124/2006; that when the appeal was not being taken up for consideration, he approached this Court in S.B.Civil Writ Petition No.1310/2006 wherein this Court passed interim stay order in his favour on 07.03.2006 (Annex.9) staying operation of the impugned orders dated 20.01.2006 and 08.02.2006 and the Tribunal was directed to consider the matter for grant of immediate interim relief on constitution of Bench. The petitioner has pointed out that the Tribunal has thereafter proceeded to pass the impugned order dated 29.08.2007 whereby the said appeal filed by him has been dismissed summarily on the grounds of lack of jurisdiction and so also without properly considering merits of the case. Assailing the orders aforesaid, learned counsel for the petitioner has strenuously contended that the Tribunal has 4 been in serious error in dealing with the merits of the case particularly after coming to the conclusion that the matter was not of its jurisdiction. According to the learned counsel, with the finding on the question of jurisdiction, the Tribunal ought to have withdrawn itself from consideration of the matter any further but, instead, the Tribunal has proceeded to enter into the merits of the case wholly illegally. Assailing the orders of transfer, learned counsel contended that the impugned orders have been passed without any administrative exigency, without providing any replacement for the petitioner; and the petitioner has been made to suffer unnecessarily. Learned counsel submitted that when the petitioner could not join at Nagaur for want of vacant post, he was rightly sent back to Makrana by order dated 02.12.2005 but then, without any reason, he was made A.P.O. at Headquarter, Jaipur by the impugned order dated 20.01.2006; and then, without any administrative exigency, he was ordered to be transferred to Parbatsar. Learned counsel submitted that the very fact that no replacement has been provided in place of the petitioner makes it clear that there had not been any administrative exigency and the impugned order deserves to be quashed on this count alone. Learned counsel further submitted that the petitioner is physically handicapped person with 70% disablement and the authority concerned instead of taking a 5 sympathetic consideration has proceeded in a wholly cursory manner shuttling the petitioner from one place to another without any rhyme or reason. It has also been urged that the petitioner has about 2½ years of service left and the authority has failed to consider that a person on the verge of retirement is not required to be transferred unless there are compelling circumstances. Learned counsel has further contended that there had not been any reasons for transferring the petitioner in the midst of academic-session and if forced upon, the petitioner would further suffer injury and inconvenience that too for total apathy of the respondents in considering his case. Learned counsel has referred to the decisions in Director of School Education, Madras and others Vs. O.Karuppa Thevan and another: 1996 (1) SLR 225; Smt.Yasmin Khan Vs. Director (AIDS), Medical and Health Department, Rajasthan, Jaipur and others: 2003 WLC (Raj.) UC 396; Mohan Lal Jain Vs. State of Rajasthan: 1979 RLW 441; and Association of Retired Employees of Municipal Council, Jodhpur Vs. State of Rajasthan & another: 1992 WLN (UC) 119. Having heard learned counsel for the petitioner and having examined the material placed on record, this Court is clearly of opinion that this writ petition remains bereft of substance and does not merit admission. 6 So far the order passed by the Tribunal is concerned, it is true that the Tribunal has recorded a finding in the first place that the matter was not of its jurisdiction and has yet proceeded to deal with the merits of the case and has dealt with part of contentions raised by the petitioner. Having regard to the facts and circumstances of the case and the stand taken by the petitioner, though the appeal was preferred by the petitioner himself and on the basis of pendency of the said appeal the petitioner earlier persuaded this Court to grant him interim relief in CWP No.1310/2006 (Annex.9) and now it is contended by learned counsel for the petitioner that in view of the fact that petitioner is governed by Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 the said appeal was not of the jurisdiction of the Tribunal; but leaving such aspects aside and leaving aside the order passed by the Tribunal, the matter has been considered on merits, if at all the impugned transfer/posting orders suffer from any illegality or warrant any interference. It remains trite in law that an order of transfer is ordinarily not interfered with by the courts unless the same is shown to be suffering from mala fide or from violation of any statutory requirement. It is noticed that the petitioner has not suggested any ground in the writ petition that could be indicative of challenge 7 to the impugned order on the ground of any mala fide or violation of any statutory requirement. The pivotal submission of the petitioner has been that the post held by him at Makrana remains vacant and no person vice him has been posted at Makrana and, therefore, order of his posting at Parbatsar cannot be said to be in administrative exigency. The submission is totally ill-conceived. It is ultimately for the authority concerned to consider as to who should be posted where and how the manpower is to be deployed. Merely because the place wherefrom the petitioner is transferred is at present not provided with any replacement, it does not ipso facto lead to the conclusion that the authority has passed the order without having regard to the administrative exigencies. So far the grievance raised by the petitioner about the order dated 20.01.2006 making him A.P.O. is concerned, suffice is to say that it lies within the competence of the authority concerned to pass appropriate order in relation to transfer/posting of an incumbent. From the chronology of events and facts, it cannot be said that the authority had attempted to act in any manner prejudicial to the petitioner or acted with any malice. When it was found that the petitioner was not permitted to join at Municipal Board, Nagaur in terms of the earlier transfer order dated 08.07.2005, the Government has proceeded to issue the order dated 02.12.2005 posting 8 him back at Makrana. However, for such fact alone, the power of the authority concerned to make an appropriate transfer/posting order of the petitioner cannot be denied. There appears no illegality when the petitioner was made A.P.O. by the order dated 20.01.2006 and within short time thereafter was posted, of course at Parbatsar. It has been repeatedly stressed by learned counsel for the petitioner that the petitioner is physically handicapped person with 70% disability and is on the verge of the retirement but the authority has not considered such aspects. This Court is clearly of opinion that the submissions so made on behalf of the petitioner in the first place have no direct co- relation with any statutory requirement and so far sympathetic consideration is concerned, by the impugned order, the petitioner has been posted within Nagaur District, of course at Parbatsar, and it cannot be said that the authority had been totally inconsiderate towards the petitioner. Moreover, in relation to such problems and difficulties, nothing prevented the petitioner from making a proper representation to the authority concerned and it cannot be assumed that if he would have made a proper representation, the authority would have turned a blind eye to the same. The decisions referred by learned counsel in the cases of Mohan Lal Jain and Association of Retired Employees 9 (supra) do not have a direct bearing upon or co-relation to the merits of this case; and the power of the Government to effect the transfer cannot be denied. Learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Director of School Education, Madras (supra). The said decision rendered by the Hon'ble Supreme Court in the peculiar facts and circumstances of the case is of no help for the contentions sought to be urged on behalf of the petitioner. Even in relation to the transfer in mid-academic session, the Hon'ble Supreme Court has pointed out that there was no such rule that transfer could not be effected during mid-academic term but then, the fact that children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The said appeal was decided on 31.01.1994 and the Hon'ble Supreme Court found that counsel appearing for the employee was unable to point out any such urgency where employee could not have been accommodated till the end of the current academic year. Noticeable it is that the present writ petition is being considered in relation to the transfer order made as back as on 08.02.2006 that has not been implemented for the proceedings adopted by the petitioner himself to take an appeal before the Service Appellate Tribunal and then to seek interim relief from this Court because the appeal was not taken 10 up for consideration by the Tribunal. Turning around, it has now been suggested by the petitioner himself that the appeal was not of the jurisdiction of that Tribunal. In any case, this Court is clearly of opinion that in relation to personal difficulties, nothing prevented the petitioner from making a proper representation to the authority concerned. So far as the date of retirement is concerned, again it cannot be said that order of transfer of the petitioner, even if he is to retire after 2½ years, suffers from any violation of any statutory rule or requirement. If at all there be any requirement of policies, the same could only be taken as guidelines and do not invest the petitioner with any legal right. In the last, learned counsel submitted with reference to an order passed by the Hon'ble Single Judge of this Court in the case of Smt.Yasmin Khan (supra) that if the petitioner makes a representation, the authority may be directed to decide the same objectively within some time and till then the transfer order may be kept in abeyance. Having examined the fact situation of the present case, this Court is clearly of opinion that the proposition as suggested by the learned counsel for the petitioner cannot be accepted. It is noticed that in the said case of Smt.Yasmin Khan in relation to the transfer order dated 21.10.2002, the Tribunal by its order dated 11.11.2002 directed the employee to make a 11 representation to the competent authority and directed the competent authority to decide the representation by speaking order within a month. Having regard to such directions issued by the Tribunal, and in the interest of justice, and looking to the medical certificate of the said petitioner, the Hon'ble Single Judge modified the order dated 11.11.2002 in the manner that she would make a representation within ten days that would be decided within a month and till disposal of the representation, execution of the order dated 21.10.2002 shall be kept in abeyance. The fact situation of the present case is that the impugned order was made as back as on 08.02.2006 and has remained in abeyance, of course, under the interim order passed by this Court in the writ petition filed by the petitioner making the grievance that the Tribunal was not taking up his appeal for consideration. However, nothing prevented the petitioner from making a proper representation and requesting the authority to consider his grievances. For this Court being satisfied that otherwise the case is not fit for interference in the extra-ordinary writ jurisdiction, the present one does not appear appropriate a case where the implementation of the order impugned be kept in abeyance till making of the representation. However, in the interest of justice, it is clarified that 12 irrespective of what has been observed above, the petitioner is still free to make a representation to the authority concerned in accordance with law. With the observations aforesaid, the writ petition stands rejected. (DINESH MAHESHWARI),J. MK