Pranjeevan Paliwal v. State of Rajasthan & Ors.

Order

- January 12, 2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ankur Srivastava for the petitioner. Shri Ganesh Meena, Government Counsel. BY THE COURT:- ******* 1) This writ petition has been filed assailing the order of the Rajasthan Civil Services Appellate Tribunal, Jaipur (for short, the “Tribunal”) dated 5/1/2011 whereby, the learned Tribunal did not grant interim-relief in favour of the petitioner. 2)

Issue notice. Shri Ganesh Meena, learned Government Counsel accepts notice. 3) Contention of the learned counsel for the petitioner is that petitioner assailed the order of his transfer before the Tribunal. Ground of challenge of the petitioner before the Tribunal was that he was transferred within eight months and that too indicating in the impugned order of transfer that it was made on the request of the petitioner whereas, no such request was made by the petitioner. Tribunal has admitted the appeal vide 2 SBCWP No.325/11. detailed order dated 5/1/2011 but did not grant any interim relief though notice of stay petition was issued and made it returnable by 14/3/2011. It is contended hat the Tribunal while admitting the appeal has referred to various judgments of the Supreme Court and of this Court on the scope of interference by the courts in the matter of transfer. It is submitted that virtually it tantamounts dismissal of the appeal yet, the Tribunal has admitted the appeal while declining to pass any ex-parte interim-stay order. Once, the petitioner joins at the place of transfer, the very purpose of filing appeal would be frustrated and there would remain nothing to be decided in the appeal thereafter. Even otherwise, if the Tribunal was not inclined to grant ad-interim stay order, an early returnable date of notice of the appeal should have been given instead of giving a very long returnable date. It is prayed that writ petition be allowed, impugned order be set-aside and the operation of the transfer order be stayed. 4) Shri Ganesh Meena, learned Government Counsel has opposed the writ petition and supported the judgment of the Tribunal on merit but could not justify why the Tribunal was not inclined to grant any interim-stay order even when it has admitted appeal by passing such a detailed order. 5) I have given my anxious consideration to the rival submissions of the parties and perused 3 SBCWP No.325/11. the material available on record as well as the impugned order of the learned Tribunal. 6) Though it may be true that scope of interference in transfer matter with this Court and for that matter, with the Tribunal is very limited and within the parameters of the law laid down and reiterated by the Supreme Court, which is that, interference in the order of transfer can only be made only if it is shown that (i) transfer has been made in violation of any statutory provision or (ii) there are some proven allegations of malafide directed against someone in authority. It is in that context that the Tribunal has in the impugned- order referred to the various judgments of Supreme Court and that of this Court namely:- (i) (ii) State of U.P. Vs. Ashok Saxena : 1998(3) SCC 303, State of Bihar Vs. Kalika Cure @Kalika Singh & Anr. : (2003) 5 SCC 448, (iii) Jagdish Prasad Vyas Vs. State of Raj. & Anr. : SBCWP No.11610/2009. (iv) Bhagwan Das Mittal & Anr. Vs. State of Raj. & Anr. : 2007(2) I.L.R. 502. But, there can be no justification why while passing such a detailed order, the Tribunal was not persuaded to pass an ad-interim ex-parte order one way or the other and merely issued notices to the respondents for consideration of prayer for stay. There can also be no justification for admitting the appeal if the Tribunal on merits 4 SBCWP No.325/11. was so much convinced that in the scope of power available with it on settled proposition of law, it could not interfere with the order of transfer. It may be observed that this Court has come across very many such detailed orders passed by the Tribunal in several other identical matters also relating to transfer where the Tribunal has conclusively held that the matters did not deserve any interference. And if this is the view of the Tribunal, then, one wonders what would be justification for admitting the appeal and piling up the cases of this nature with the Tribunal. And if the Tribunal was convinced that the matter required consideration on merits, then, while admitting the appeal, the Tribunal could also for a limited duration till returnable date of an early date to consider granting any interim relief. But the kind of practice that is being adopted by the Tribunal cannot be appreciated because if the Tribunal by a detailed order is holding that there is no case worth interference, then, appropriate course would be to dismiss the appeal rather than admitting the appeal and declining to pass any ex- parte interim-order and simply issuing notices of the appeal and stay petition to the respondents and that too for a very long returnable date after two months. This would apparently would compel the aggrieved employee to join in the meantime thereby frustrating the very purpose of filing appeal. If this is taken further, this would result into 5 SBCWP No.325/11. rendering the appeal itself infructuous because in the meantime, the employee would have joined at the place of his/her transfer, there would remain nothing to be decided in the appeal by the time matter comes up again after service and further if the respondents were to ask for time to file reply, this would further delay the matter. The end result of this would be to deny the very remedy to the aggrieved employee against the order of transfer, which is surely is not intention of the statute, of which, the Tribunal itself is a creature. 7) In the result, this writ petition with the aforesaid observation, is allowed. The impugned- order dated 5/1/2011 (Ann.1) is set-aside and the matter is remanded back to the Tribunal to re-hear the appeal on admission and prayer for stay afresh and decide the same in the light of the observations made by this Court hereinabove. Parties are directed to appear before the Tribunal on 24/1/2011. 8) Copy of this order be sent to the Registrar, Rajasthan Civil Services Appellate Tribunal, Jaipur for compliance. (MOHAMMAD RAFIQ), J.