Rajiv Daiya vs State Of Rajasthan
2021 Latest Caselaw 9399 Raj

(1 of 8) [CW-6864/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6864/2021

Rajiv Daiya S/o Mangtu Ram, Aged About 56 Years, Raj Mataji Ka Nohra, Near Fateh Sagar, Jodhpur, District Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Law And Legal Affairs, Secretariat, Jaipur, Rajasthan.

2. The Government Advocate-Cum-Additional Advocate General, Office Of Government Advocate-Cum-Additional Advocate General, Government Of Rajasthan, High Court Campus, Jodhpur, Rajasthan.

                                                                       ----Respondents


For Petitioner(s)             :        Mr. Kailash Jangid
For Respondent(s)             :        Mr. Sandeep Shan, AAG



                         JUSTICE DINESH MEHTA

                                          Order

11/05/2021

1. The petitioner has preferred the present writ petition for the

following prayers :-

"A. By an appropriate writ order or direction, the Suspension Order Dated 16.04.2021 (Annex-2) and Reliving order dated 23.04.2021 (Annex-3) may kindly be quashed and set aside.

B. By an appropriate writ, order or direction, the respondents may kindly be directed to permit the petitioner to work continue at his present posting place i.e. Government Advocate Office, Jodhpur or may change his Headquarters from Banswara to Jodhpur with all consequential benefits."

(2 of 8) [CW-6864/2021]

2. The matter was listed for admission, on 29.04.2021; upon

hearing learned counsel for the petitioner, this Court issued

notices to the respondents limited to the extent of change of

petitioner's Headquarters and stayed the effect and operation of

the order dated 16.04.2021 to the extent of change of

Headquarters. Consequential relieving order dated 23.04.2021

was also stayed.

3. Though the writ petition in relation to suspension of the

petitioner was not entertained but the indulgence was granted to

the petitioner, as his Headquarters had been changed to

Banswara, which is about 400 kilometers from Jodhpur -

petitioner's place of posting.

4. The aforesaid interim order was passed being persuaded by

the submission made by petitioner's counsel that change of

Headquarters to Banswara would pose undue hardship to the

petitioner, more particularly, in the present situation emerging on

account of spread of pandemic COVID, when even the movement

is restricted.

5. An application under Article 226(3) of the Constitution of

India alongwith a reply to the writ petition has been filed by the

respondents. The matter has come up on Board for consideration

of the stay vacation application filed invoking provisions of Article

226(3) of the Constitution of India.

6. Mr. Sandeep Shah, learned Addl. Advocate General at the

outset submitted that the petitioner has concealed material fact,

for which, his petition is liable to be dismissed. For this purpose,

he invited Court's attention towards notice dated 16.04.2021

(Annex.R/4), which has been issued to the petitioner as he is

operating a trust in the name of Suraz India Trust. He submitted

(3 of 8) [CW-6864/2021]

that despite being served with the notice, petitioner has neither

disclosed this fact nor has he placed the same on record, hence,

the petition deserves to be dismissed.

7. He informed that the State has placed the petitioner under

suspension under contemplation of disciplinary enquiry, as the

petitioner - government servant is engaged in running/carrying

out a trust in the capacity of its Managing Trustee. He added that

the petitioner has indulged in nefarious activities under the cloak

of such Trust, which do not behove a government servant.

8. Mr. Shah invited Court's attention towards order dated

01.05.2017, passed by Hon'ble the Supreme Court in the writ

petition filed by Suraz India Trust, which is being managed by the

petitioner as a Managing Trustee and highlighted that an

exemplary cost of Rs.25 lacs has been imposed upon the

petitioner. Reading para No.27 thereof, he submitted that it was

incumbent upon the petitioner to bring to the notice of this Court,

the aforesaid order dated 01.05.2017, passed by Hon'ble the

Supreme Court.

9. Learned Addl. Advocate General relied upon the order dated

12.04.2021, passed by Hon'ble the Supreme Court in Misc.

Application No.1630/2020 to contend that petitioner has been

suspended under contemplation of disciplinary proceedings, which

have been kick started pursuant to the observation made by

Hon'ble the Supreme Court.

10. Court's attention was thereafter drawn towards a subsequent

order dated 07.05.2021, passed by Hon'ble the Supreme Court in

the aforesaid Misc. Application No.1630/2020 and it was

submitted that the petitioner is not entitled for any relief in the

teeth of observations made by Hon'ble Apex Court.

(4 of 8) [CW-6864/2021]

11. Mr. Jangid, learned counsel for the petitioner, at the outset,

submitted that copy of the reply and the application under Article

226(3) of the Constitution of India has been served upon the

petitioner only two days back and thus, breathing time be allowed

to him, so as to enable him to file rejoinder and reply to the stay

vacation application.

12. Adverting to the merits of the case, learned counsel would

argue that may be, the respondents were justified in placing the

petitioner under suspension in contemplation of an enquiry; but,

fixing petitioner's Headquarters at Banswara is arbitrary, besides

being violative of his right to defend the proceedings and other

fundamental rights guaranteed by the Constitution. According to

him, looking to the nature of enquiry, which the respondent -

State is going to conduct against the petitioner, his continued

posting at present place (Jodhpur) would hardly have any bearing

much less, adverse impact.

13. Advancing his arguments further, learned counsel submitted

that the State intends to conduct an enquiry against the petitioner,

expressing concern over petitioner's engagement/involvement in

the Trust known as Suraz India Trust. While pointing out that all

records relating to the Trust is with the petitioner, at Jodhpur and

in any case not in the Office of Addl. Advocate General cum

Government Advocate, learned counsel argued that apprehension

that petitioner may frustrate the enquiry and/or influence oral or

ocular evidence is absolutely misplaced.

14. Learned counsel submitted that if the petitioner is asked to

join at Banswara in furtherance of the order dated 23.04.2021,

the same would not only cause undue hardship to him but also

retard the speed of the enquiry inasmuch as the petitioner will be

(5 of 8) [CW-6864/2021]

required to come from Banswara to Jodhpur/Jaipur alongwith the

record, which is lying at Jodhpur.

15. He argued that no justifiable reason has been given, for

which petitioner's Headquarters was changed to Banswara. He

submitted that apart from the Office of Addl. Advocate General

cum Government Advocate at Jodhpur, there are many other

Offices under the respondent - Department where the petitioner

could be asked to mark his attendance during suspension. He

added that petitioner's sustenance on subsistence allowance will

be practically impossible if he is placed at Banswara as his family

will have to remain in Jodhpur. He added that his Headquarters

has been changed with a view to punish/harass the petitioner.

While emphasizing that the same cannot be said to be in public

interest or in the expediency of the ensuing disciplinary enquiry,

he prayed that the order to the extent of change of Headquarters

be quashed.

16. Joining the case on merit, learned AAG submitted that

having regard to the conduct of the petitioner and his Trust, which

has hurled irresponsible, unwarranted rather vexatious litigation

against all and sundry, including Hon'ble Judges and Hon'ble Chief

Justice of this Court, the petitioner's continuance at Jodhpur will

not be conducive; as he would indulge in further frivolous

litigation, in order to influence or thwart the enquiry.

17. Learned AAG argued that fixation of Headquarters during

suspension period is a discretion of the disciplinary authority and it

is outside the domain of the Hon'ble Court either to test its

reasonableness or its repercussions.

18. In a bid to give support to such argument, learned counsel

relied upon a judgment of this Court, rendered in case of Babulal

(6 of 8) [CW-6864/2021]

Jaiswal Vs. State of Rajasthan, reported in 1983RLW638.

Relevant part of the judgment aforesaid which he read for Court's

consideration, is reproduced hereinfra :-

"5. So far as the change of the district head quarter of the petitioner causing great hardship to him is concerned, this Court is not competent to fix the head quarters of the petitioner during the pendency of the enquiry and suspension period after taking notice of the personal inconvenience. That is a matter, on which the suspending authority can be moved by the petitioner and, if a proper case is made out, hardship can be considered as a good ground for changing the head-quarters in a given case.

6. It is well known that the jurisdiction of this Court is only limited to the error of jurisdiction under Art.226 of the Constitution of India and even though, the Court tries to do justice by granting relief in proper cases, it is not possible to go so far to usurp normal administrative functions of the State functionaries and decide the case of transfers and fixation of the head quarters, during the suspension period.

7. With the above observations, the writ petition fails and is hereby dismissed in limine."

19. Heard.

20. Considering the overall conduct of the petitioner and the fact

that he has not disclosed the factum of issuance of show-cause

notice dated 16.04.2021 to him, this Court is of the view that the

petitioner is not entitled for any relief much less discretionary or

equitable relief in its extra-ordinary jurisdiction conferred by

Article 226 of the Constitution.

21. That apart, having regard to the orders passed by the

Supreme Court referred to by Mr. Shah and given the fact that the

petitioner, despite being a government servant is managing a

Trust in the name of Suraz India Trust and under the label of such

(7 of 8) [CW-6864/2021]

Trust, he has filed scores of writ petitions; and being aware of the

fact that a cost of Rs.25 lacs has been inflicted upon the petitioner,

which he has not cared to pay, this Court is not inclined to

entertain the present writ petition.

22. That apart, in light of the enunciation made by this Court in

the case of Babulal Jaiswal (supra), this Court is of the view that

interference, even in relation to change of Headquarters is not

warranted in the extant facts.

23. As an upshot of the discussion foregoing, the writ petition is

dismissed.

24. Though the writ petition has been dismissed, observing that

this Court cannot interfere in the matters relating to change of

Headquarters, however, petitioner's right to make a representation

before the competent authority cannot be foreclosed more

particularly in light of the observation made by this Court in para

No.5 of the judgment in the case of Babulal Jaiswal (supra). This

Court, thus, deems it appropriate to give a liberty to the petitioner

to file a representation before the competent authority.

25. Petitioner may file a representation within a period of seven

days from today for keeping his Headquarters in the Office of

Addl. Advocate General cum Government Advocate itself, or to any

other nearby place highlighting the probable hardship he would

face. If any such representation is received, this Court is sure that

the competent authority would consider the same dispassionately,

uninfluenced by the dismissal of present writ petition. The

representation (if any) be decided preferably within a period of

seven days of its receipt.

(8 of 8) [CW-6864/2021]

26. Interim order dated 29.04.2021 is vacated; stay application

is dismissed.

(DINESH MEHTA),J m-34-ArunV/-

Powered by TCPDF (www.tcpdf.org)