Mohan Lal vs State of Rajasthan and Others

Dinesh Maheshwari, J.—The petitioner while working as Junior Scientist Assistant with the respondents and posted in the Office of Deputy Director Agriculture (Quality Control) Pesticide Lab at Bikaner was served with an order of transfer dated 14.06.2007 (Annex.1) transferring him to the Office of Deputy Director Agriculture (Quality Control) Jodhpur. The petitioner challenged the order of transfer before the Rajasthan Civil Services Appellate Tribunal. The Tribunal proceeded to reject his appeal by the order dated 05.07.2007 (a photostat whereof has been placed on record after filing of this writ petition for having been received later by the petitioner).

By the order dated 05.07.2007 the Tribunal observed that there was no mala fide behind the order of transfer and rejected the contention of the petitioner that transfer order was issued only to accommodate the respondent No. 2 (respondent No. 3 in the present petition). On the contention of the petitioner that transfer order was improper for having been issued during currency of the ban imposed on transfers, the Tribunal observed that in that relation the petitioner ought to seek remedy by making representation before the authority imposing such ban. The Tribunal further observed that the transfer policy was only directory in nature and an employee has no legal right to have it enforced; and that transfer was a natural incident of service and the government employee has no legal right to seek posting at a particular place.

Aggrieved, the petitioner has preferred this writ petition and it is submitted that the transfer order has been issued as per desire of the office of the Chief Minister and the post of Junior Scientist Assistant being not of administrative nature cannot be a subject of transfer at the instance of high office of the Chief Minister; that the impugned order has been issued in the mechanical fashion without application of mind; that the transfer order has been issued only in order to accommodate the respondent No.3; that the petitioner has been transferred on 14.06.2007 though at the relevant time there was a ban on transfer; and that the petitioner has been subjected to transfer within short span of 24 months which is contrary to the policy of the respondent-Department. Learned counsel has referred to an order passed by the Hon''ble Supreme Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Ors. : (2003)11SCC740 and decisions of this Court in Om Prakash Sharma v. State of Rajasthan 1989 (1) RLR 826 and Narpat Singh Rajpurohit v. State of Rajasthan 1991 (S) WLR136.

Having given a thoughtful consideration to the submissions of 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 deserves to be dismissed.

The observations made by the Hon''ble Supreme Court in the case of Sarvesh Kumar Awasthi (supra) cannot be applied ipso facto to the facts of the present case. The Hon''ble Supreme Court has observed thus:

In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.

In the present case, merely because the order Annex. 1 has been endorsed for information to the Office of Chief Minister, it cannot be said that the power of ordering transfer has been exercised arbitrarily or mala fide or at the instance of politicians whose work was not done by the petitioner. It has not been shown as to what was the communication from the Chief Minister''s Office in reference whereof the order of transfer was endorsed by the transferring authority. Even if it be assumed that the Office of Chief Minister of the State of Rajasthan has recommended such transfer, it cannot be said that transfer has been ordered at the instance of someone who has nothing to do with the business of administration.

In relation to the question of so-called ban on transfer, the Tribunal has rightly observed that in that relation the petitioner ought to have represented the matter to the authority concerned. The order of so-called ban has also not been placed on record.

The petitioner was posted at Bikaner by the order dated 15.07.2005 (Annex. 3) and has been transferred from Bikaner to Jodhpur by the impugned order dated 14.06.2007 (Annex. 1). It cannot be said that the petitioner has been subjected to transfer within a short span or to frequent transfers. It does not appear from the material placed on record that the petitioner has been transferred only in order to accommodate the respondent No.3. This apart, in the overall administrative set up, it is for the department concerned to issue orders of transfers/postings of the employees working in the department and merely because respondent No.3 has been transferred with 11 months from Jodhpur to Bikaner, it cannot be said that the order of transfer of the petitioner suffers from any mala fide.

The decisions of this Court relied upon by the learned Counsel for the petitioner essentially proceed on their own facts and do not render any assistance to the submissions made on behalf of the petitioner. It may be observed that the decision in Om Prakash Sharma''s case (supra) holding that a ''desired transfer'' is arbitrary and suffers from malice in law has not been approved by the Division Bench of this Court in the case of Bhagirath Mal v. State of Rajasthan 1990 (2) RLR 561 wherein the Hon''ble Division Bench observed,-

We are in agreement with the view taken by the learned Single Judge that only the Minister can know better and all the powers cannot be delegated to bureaucracy depriving the Minister to act. We do not agree with the view taken in the case of Om Prakash v. State of Rajasthan (supra), that the desired transfer could be considered as a malice in law.

Even in relation to the submission regarding guidelines, the petitioner has not precisely pointed out the terms of such guidelines and mere vague averments taken in that regard cannot be countenanced.

Having examined the material placed on record and the contentions urged on behalf of the petitioner, this Court is satisfied that the order passed by the Tribunal rejecting the appeal filed by the petitioner does not suffer from any error apparent on the face of record so as to warrant interference in writ jurisdiction.

The writ petition fails and is, therefore, dismissed in limine.