1 S.B. CIVIL WRIT PETITION NO.5089/2007 (Raj Kumar Sharma Vs. State of Rajasthan & ors.) Date of Order ::24th August 2007 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.D.D.Chitlangi for the petitioner By way of this writ petition, the petitioner working on the post of Sanitary Inspector, seeks to challenge the order dated 31.07.2007 (Annex.3) transferring him from Municipal Council, Bikaner to Sangria. It is contended that the petitioner is on the verge of retirement with about two years of service period left; that his wife is suffering from cancer and is under treatment at Bikaner since 13.05.2002 and such facility is not available at Sangria; and that the petitioner filed a writ petition challenging the promotion of a junior person, being S.B.Civil Writ Petition No.2199/2004, and in revenge of such litigation, the Department has transferred him. Learned counsel has relied upon the decision of the Division Bench of this Court in Dr. (Smt.) Pushpa Mehta Vs. Rajasthan Civil Services Appellate Tribunal & Ors.: 2001 (1) RLR 398. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner 2 and having examined the material placed on record, this Court is clearly of the opinion that this writ petition remains totally bereft of substance and does not merit admission. So far the argument regarding approaching date of retirement with reference to the decision of this Court in Dr. (Smt.) Pushpa Mehta's case is concerned, it may be noticed that the appellant in the said case, Dr. (Smt.) Pushpa Mehta, working as professor in the Department of Micro-Biology was transferred from Kota to Udaipur and the second respondent Dr. (Smt.) Shanta Dubey was transferred in her place from Udaipur to Kota. The second respondent challenged the order of transfer before the Rajasthan Civil Services Appellate Tribunal on the ground that she was on the verge of retirement; that she was suffering from cancer; that her husband had expired about a year back; and that her younger son was studying at Udaipur. The Tribunal found that there was no administrative reason to transfer Dr. Dubey from Udaipur to Kota except to accommodate Dr. Mehta and, thus, set aside the order of transfer. The Hon'ble Division Bench noticed that the State chose not to challenge the order made by the Tribunal and the same was challenged only by Dr. Mehta by way of writ petition that was rejected by the learned Single Judge. In the back drop of such fact situation, Hon'ble Division Bench considered the submissions made on behalf of 3 the writ petitioner-appellant about the limited grounds on which order of transfer could be challenged and the Hon'ble Division Bench noticed the decisions of Hon'ble Supreme Court cited before it and observed,- “The propositions of law laid down in all the three cases cannot be disputed. It is well settled that ordinarily, the Tribunals and the Courts are not to interfere with the order of transfer unless it is challenged on the ground of malafide or the transfer is effected for extraneous considerations than the administrative reasons”. Thereafter the Hon'ble Division Bench noticed that the second respondent was due to retire in the month of January 2001 (the said Division Bench appeal was decided on 16.12.1999); and that the appellant (Dr.Mehta) had long to go in service. Significant aspect was noticed that though the Tribunal observed regarding policy of the government of not disturbing the employee on the verge of retirement and set aside the transfer order, the State Government did not challenge the order made by the Tribunal; thus showing that the government was satisfied with the reasoning of the Tribunal, and it was only the appellant who was interested in posting at Udaipur preferred to challenge the order of the Tribunal. The Hon'ble Division Bench again noticed that in the opinion of the Tribunal the order of transfer suffered from 4 malafide for having been passed only in order to accommodate the appellant and the finding also got confirmed from the fact that the State Government chose not to challenge the order of the Tribunal. In the aforesaid circumstances and fact situation, the Hon'ble Division Bench made following observations:- “We are of the view that unless there are compelling reasons, ordinarily, an employee should not be disturbed from the place of his/her posting, when he/she is at the verge of retirement. An employee should be given sufficient time, which may be of two years or so to plan peacefully his/her post retirement life.'' The aforesaid observations in Dr. Pushpa Mehta are not of laying down a rule of universal application in mandatory form that in no case an employee on the verge of retirement could be transferred by his employer for administrative exigency; and further the observations are required to be read in conjunction with the fact situation of the said case and so also with the significant aspect that when the Tribunal set aside the transfer order, the State Government chose not to challenge the order made by the Tribunal. The said case of Dr.Pushpa Mehta is of no help to the petitioner; and there appears no reason to interfere in the present case. In the fact situation of the present case it cannot be said that the order 5 of transfer suffers from any malafide or has been made in violation of any statutory provision. So far the submission regarding hardship related with the ailment of the wife of the petitioner is concerned, for that reason and on that ground, nothing prevented the petitioner from making a proper representation to the authority concerned and it cannot be assumed that if the petitioner would have made a representation with necessary material, the authority would have turned a blind eye to his representation. It seems that merely for making of the transfer order, the petitioner has assumed that it has been in repercussion of his litigation concerning promotion. Even such assumption seems to be baseless. The writ petition concerning the matter of promotion (Writ Petition No.2199/2004) was filed in the year 2004; and during the course of submissions, on being asked, learned counsel has stated that reply in the said writ petition was filed on 22.08.2005 and this Court called for the record on 07.09.2006. By no stretch of imagination, transfer order made in relation to the petitioner with 49 other incumbents on 31.07.2007 could be co-related with the said writ petition filed in the year 2004. It cannot be said that if an employee has taken up litigation concerning any other service dispute, he would acquire immunity from transfer, if made for 6 administrative exigency; nor has it been shown if there was any prohibition in transfer of the petitioner. The writ petition remains bereft of substance and is, therefore, rejected. (DINESH MAHESHWARI),J. s.soni