Saraswati Bohra vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against order dated 28.08.2019 (Annex.5), whereby the petitioner has been subjected to transfer at Dhanari Kalan, Bawadi, Jodhpur.

The petitioner was subjected to set-up change by order dated 11.06.2019, the order dated 11.06.2019 was modified by order dated 14.06.2019 by indicating that the petitioner was being transferred from Primary set-up to Secondary set-up. The said orders dated 11.06.2019 & 14.06.2019 were subjected to challenge by filing writ petition before this Court. The writ petition was decided alongwith Gena Ram Choudhary v. State of Raj. & Ors.: SBCW No. 8085/2019, decided on 21.06.2019. The order dated 14.06.2019 was quashed and it was left open for the petitioners to make a representation to the respondents and/or for the respondents to pass a fresh order. Pursuant to the said order dated 21.06.2019, the petitioner did not file a representation, however, the respondents reiterating the order dated 14.06.2019 by order dated 10.07.2019 and required the petitioner to join at the transferred post. The said order dated 10.07.2019 was challenged before this Court by filing writ petition, wherein the order was stayed.

During pendency of the writ petition, the respondents amended the order dated 10.07.2019 by order dated 19.07.2019 resulting in the effect of order dated 10.07.2019, qua the petitioner coming to an end.

Whereafter, now the present order dated 28.08.2019 has been passed, inter-alia, indicating transfer of the petitioner to the same place where the petitioner was initially transferred by order dated 11.06.2019 / 14.06.2019.

Learned counsel for the petitioner submitted that the action of the respondents in subjecting the petitioner to transfer by order dated 28.08.2019 at the same place, by which the petitioner was subjected to transfer by order dated 14.06.2019, which order has been quashed, is not justified.

Submissions have been made that once the order dated 14.06.2019 was quashed by this Court, the respondents could not have transferred the petitioner again to the same position and therefore, the order dated 28.08.2019 deserves to be quashed and set-aside.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

When the petitioner first approached this Court against the order dated 14.06.2019, the writ petitions led by Gena Ram Choudhary (supra) were decided by order dated 21.06.2019, wherein the following directions were given :-

1] This order shall apply qua present petitioners only and since transfer is individual incidence of service, therefore, relief shall apply only to the sole petitioner or to the petitioner No.1 (in petitions filed by more than one petitioners).

2] The petitioners shall be free to submit representation and raise their grievances, if any, before the respondent Department within a period of ten days from today i.e. up to 30th June 2019.

3] The Director, Secondary Education, Government of Rajasthan shall constitute a committee afresh, to decide the grievance raised by representations and also to implement transfers in accordance with the Rules of 1971 without repeating the exercise of set up change twice for the teachers.

4] Rule 6-D of the Rules of 1971 shall not be applied upon the present petitioners and their transfers shall be kept free from operation of provisions of rule 6-D of the Rules, as their set up change already stood completed earlier. The transfer of petitioners, Teachers governed by the Rules of 1971, may be carried out by the competent authority as general transfers under the Rules of 1971.

5] The aforementioned committee constituted by the respondents shall pass order for transfer of petitioners, after considering their representations, if any, preferably within a period of 15 days from today.

6] The respondents shall be free to conduct counselling or use their software Shala Darpan but shall not apply rule 6- D of the Rules upon present petitioners.

7] Until such fresh orders are passed, the petitioners shall not be transferred from place of their posting before passing of the impugned transfer orders.

8] The impugned transfer orders qua present petitioners are quashed and set aside accordingly, with the liberty to respondents to pass fresh transfer orders.

9] It is made clear that these directions shall apply to the petitioners who have come before this Court in the present writ petitions. Those Teachers, who accepted the postings pursuant to impugned transfer orders, would not be entitled to approach the committee to be constituted by the respondents pursuant to this order. Their transfer orders shall remain effective.

10] It is further made clear that all those petitioners, who have filed their petitions but due to circumstances have joined at the transferred place of posting, shall be permitted to approach the aforementioned grievance committee constituted by respondents.

11] Transparency maintained by the respondents by bringing in counselling and software Shala Darpan in conducting transfers of the Teachers is applauded by this Court, as it would give some choice to the teachers and shall also reduce unnecessary interference in the transfer exercise. However, it is made clear that any Teacher against whom the exercise under rule 6-D of the Rules of 1971 had already been undertaken in past, shall now not be subjected to rule 6-D again for conducting transfers under the Rules of 1971.

12] Apart from this, if any petitioner has any other grievance then he shall be free to approach the Grievance Committee of respondents as formed pursuant to this order and the Grievance Committee shall redress their grievance strictly in accordance with law and pass final orders of transfer.

13] Till final decision pertaining to petitioners is taken, as directed aforesaid, the petitioners shall be kept post at the place they were posted prior to passing of the impugned transfer orders.

14] This exercise shall be conducted with utmost priority to avoid any disturbance to the students in the ensuing academic session.

The petitioner relying on a part of the directions, whereby the orders dated 14.06.2019 were quashed, chose not to file any representation with the respondents. The respondents, whereafter, only on account of the fact that the petitioner had not filed a representation, passed order dated 10.07.2019, however, realizing the mistake, a fresh order dated 19.07.2019 was passed modifying the order dated 10.07.2019.

Now the order dated 28.08.2019 has been passed subjecting the petitioner to transfer from Primary set-up to Secondary set-up and posting the petitioner at Dhanari Kalan, Bawadi, Jodhpur, the place where the petitioner was originally proposed to be transferred by orders dated 11.06.2019 / 14.06.2019. The order dated 28.08.2019 cannot be said to be suffering from any vice as alleged by the petitioner, so as to require interference by this Court.

A bare look at the directions issued by this Court on 21.06.2019 (supra), would indicate that under Clause (8), the transfer orders were quashed with liberty to the respondents to pass fresh transfer orders and once the said liberty was granted to the respondents to pass fresh transfer orders, no exception can be taken to passing of order dated 28.08.2019 (Annex.5).

Learned counsel for the petitioner attempted to make submissions that the petitioner may now be permitted to file a representation. Once, the petitioner chose not to follow the directions given on 21.06.2019 by this Court while deciding her previous writ petition, the petitioner now cannot seek indulgence in this regard all over again.

In view thereof, no case for any interference in the order impugned is made out. There is no substance in the writ petition, the same is, therefore, dismissed.