Sarla Bhargava vs State and Others

Dinesh Maheshwari, J.—By way of this writ petition, the petitioner seeks to challenge the order dated 07.08.2007 (Annex.1), whereby she has been transferred from Government Girls Senior Secondary School, Makrana, Nagaur to Government Girls Senior Secondary School, Jayal, Nagaur essentially on the submissions that she has been treated in a stigmatic manner; and that the transfer order is the outcome of mala fide acts on the part of the respondents.

Upon this Court expressing reservations on the competence of this writ petition for the petitioner having specific alternative remedy of filing an appeal before the Rajasthan Civil Services Appellate Tribunal, learned Counsel for the petitioner strenuously urged that on the facts and in the circumstances of this case, where the petitioner has regularly been harassed, when she is on the verge of retirement, and when the transfer order is the outcome of mala fide acts of the respondents, the matter deserves to be considered in the writ jurisdiction of this Court.

Having examined the matter in totality, this Court is clearly of opinion that there is no reason or special circumstance for which the petitioner could be permitted to by-pass the alternative remedy of filing appeal before the Tribunal.

From the factual matrix presented in this writ petition, according to the petitioner, she is on the verge of retirement and would be retiring from service on 31.07.2009; that the transfer order has been passed on the basis of a false complaint made by the respondent No. 5 who is an Upper Division Clerk at the school where the petitioner is presently working; that the respondent No. 5 engineered a false case against the petitioner and on the basis of his complaint, the petitioner was firstly made Awaiting Posting Order (A.P.O.), by the order dated 23.01.2007; that the said order dated 23.01.2007 was challenged by the petitioner before this Court in Writ Petition No. 1150/2007 that was dismissed on 02.03.2007 with directions to the petitioner to approach the Rajasthan Civil Services Appellate Tribunal and one month''s stay was granted in favour of the petitioner; that the petitioner instructed her counsel to file an appeal before the Tribunal but due to non-constitution of Bench, the petitioner was again circumstanced to approach this Court by filing another Writ Petition; that in the meantime, the appeal filed by the petitioner before the Tribunal came to be dismissed and also in the meantime another transfer order (the impugned order dated 07.08.2007) was made transferring the petitioner to the Government Girls Senior Secondary School, Jayal, Nagaur; that she has been informed by the counsel that the writ petition filed before this Court has been dismissed as having become infructuous by the order dated 24.08.2007; that the petitioner is suffering with High Blood Pressure and presently she is undergoing medical treatment and she is on medical leave and due to her ailment, she is not in a position to approach the Tribunal at Jaipur and so also at Jodhpur where the proper bench is not constituted for quite long. Giving out such factual foundation, the petitioner submits that on the facts and in the circumstances she has no proper and efficacious remedy except to approach this Court and the present writ petition deserves to be entertained ignoring the availability of alternative remedy of filing appeal before the Tribunal.

It is noticed that on the earlier occasion, when by the order dated 23.01.2007 the petitioner was posted at Headquarters to await posting orders, the petitioner preferred the said writ petition (CWP No. 1150/2007) and, obviously, the contentions of the petitioner had been that the said order was made on the complaint of respondent No. 5 and she was made A.P.O. without inquiring into the matter, as are the averments taken in relation to the order dated 07.08.2007 in the present writ petition. However, this Court did not consider it appropriate to entertain the matter in writ jurisdiction and the petitioner was relegated to the alternative remedy of appeal.

The petitioner has averred that the appeal filed before the Tribunal was rejected and thereafter the petitioner approached this Court by way of S.B. Civil Writ Petition No. 4666/2007 that came to be dismissed on 24.08.2007. The record of CWP No. 4666/2007 was requisitioned and therefrom it appears that the petitioner did not produce the order passed by the Tribunal dismissing her appeal though made the averment that the Tribunal had rejected her appeal. Even the date of order rejecting her appeal had not been stated. However, the said petition was dismissed as infructuous after noticing the submissions of the learned Counsel for the petitioner that for the subsequent events, the writ petition had become infructuous.

Be that as it may, the fact remains that even when on the earlier occasion the petitioner wanted to assail the action of the department in removing her from the present place of posting on the ground of mala fide, this Court did not consider it appropriate to entertain the matter in writ jurisdiction. The present posting order dated 07.08.2007 is again sought to be assailed on the same grounds and there appears no reason as to why the petitioner cannot assail the order on the grounds sought to be suggested in this writ petition like mala fide behind the order and of her being on the verge of retirement etc. in an appeal before the Tribunal. There appears no special reason or circumstance for which the petitioner may be permitted to by-pass the alternative remedy of filing appeal before the Tribunal and to directly maintain a writ petition before this Court. The grounds suggested by the petitioner in this writ petition do not make out any case for which this writ petition be entertained while ignoring availability of statutory alternative remedy of filing appeal before the Tribunal.

For being not inclined to entertain the matter in extraordinary writ jurisdiction because of availability of alternative remedy, this Court would not make any comment on the merits of the grounds sought to be urged by the petitioner.

Exercise of writ jurisdiction in this matter is refused; and the petition is rejected.