Jai Kishan @APPELLANT@Hash Director

In the instant petition, petitioner, a Govt. employee, has laid challenge to the transfer order with the prayer to quash and set aside the same.Â

To challenge the impugned transfer order, petitioner has taken shelter of the transfer policy by urging that he is on verge of superannuation and has

questioned the transfer order on the anvil of being violative of transfer policy. Reliance is placed on a Division Bench judgment in case of Dr. Pushpa

Mehta Vs. Rajasthan Civil Services Appellate Tribunal and Ors. [RLW 2000 (1) Raj 233] for substantiating his grievance against the impugned order.

 While it is true that an incumbent employee is well within its right to assail transfer order in appropriate cases but then what would be the

appropriate forum for assailing such order is a crucial question, which requires judicial scrutiny.  Indisputably, the petitioner is Government servant

within the meaning of Section 2(c) of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 (for short, ‘Act of 1976’).Â

Moreover, the definition of “Service matter†under Section 2(f) of the Act of 1976 is wide enough to include transfer.  While interpreting the

expression “service matterâ€, this Court, in case of Narayan Lal Kusal Vs. Jagdish Prasad Gupta (2003 (1) WLC (Raj) 134), has held that it

includes transfer also.  Section 4 of the Act of 1976 envisage duties of the Tribunal, which reads as under:

4. Duties of the Tribunal. - (1) The Rajashan Civil Services Appellate Tribunal shall hear an appeal against the order passed by any officer or

authority on any service matter or matters affecting a Government servant in his personal capacity.

(2) The Tribunal shall have power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh

decision in accordance with the directions given by it.

Thus, the petitioner is well within his rights to assail the impugned transfer order before the statutory Tribunal by preferring an appeal. Â

It is trite that if a statute provides remedy of an appeal, then, the same can be categorized an appeal as of right.

Constitution Bench of Supreme Court in case of Union of India Vs. T.R. Varma (AIR 1957 SC 882), while examining the principle of exhaustion of

remedies has observed that before taking recourse to extraordinary remedy under Article 226 one has to maintain the sanctity of statutory provisions

and not to render the same almost meaningless and non-existent. The Court held:

“It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not

invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the

jurisdiction of the Court to issue a writ, but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting

writs . . . And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are

good grounds therefor.

Same view is again reiterated by Apex Court in case of State of U.P. & Ors. Vs. Labh Chand [(1993) 2 SCC 495]. In this judgment, Supreme

Court has observed that a Government servant cannot be allowed to challenge his compulsory retirement order by filing writ petition under Article 226

of the Constitution without availing alternative remedy before the Tribunal.  The Court held:

“When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High

Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the

Constitution.â€​

Hon’ble Supreme Court, in case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Ors.

[(2002) 5 SCC 521], has held that for adjudication of disputes of govt. servants, Tribunal cannot be bypassed by filing writ petition on the ground that

the Tribunal lacks power to pass interim order, observing as under:Â

“These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. W.P. No. 47130 of 2000 etc. on

1.2.2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an

alternate remedy by way of petitions before the U.P. Public Service Tribunal (the tribunal), and had permitted the writ petitioner therein to approach

the tribunal and directed the tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There

was a further direction to the tribunal to decide the matter expeditiously.

Mr. Sunil Gupta, learned counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal

Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have

relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned counsel. When the statute

has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant

an interim order is no ground to by-pass the said tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the tribunal

declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of

the Constitution but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity

whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal. In the said view of the matter, the

appeals are dismissed. No costs.â€​

The case of Dr. Pushpa Mehta (supra), a Division Bench judgment, on which reliance is placed by the petitioner, though was a case of transfer, but

the appellant therein had availed the statutory remedy of appeal before the Tribunal. Therefore, the said judgment cannot render any assistance to

the petitioner to wriggle him out from availability of statutory alternative remedy.Â

It is really strange that despite availability of statutory alternative remedy to the petitioner, he has made a positive assertion that against the impugned

order he has no other efficacious alternate remedy except to approach this Court under Article 226 of the Constitution.   I am constrained to

observe that this positive assertion of the petitioner is a clear case of false averment and misprision.Â

Be that as it may, while refraining to non-suit the petitioner on the aforementioned count and sans making any comment on merits of his grievance, I

relegate the petitioner to alternative remedy of appeal before learned Tribunal.

In view of above, the petition is rejected.