Abhimanyu Choudhary vs Majer Ali
2022 Latest Caselaw 14871 Raj

(1 of 8) [SAW-1044/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 1044/2022

Abhimanyu Choudhary S/o Shri Het Ram Choudhary, Aged About 39 Years, R/o Deengarh, Tehsil Sangaria, District Hanumangarh (Raj.). At Present Block Development Officer, Panchayat Samiti Nokha, District Bikaner.

----Appellant Versus

1. Majer Ali S/o Shri Sadyle Khan, Aged About 45 Years, R/o Modawasi, Tehsil Rajgarh, District Churu (Raj.).

2. Secretary, Department Of Rural Development And Panchayati Raj, Secretariat, Rajasthan, Jaipur.

3. The Additional Commissioner Cum Deputy Secretary (Iii), Rural Development, Government Of Rajasthan, Jaipur.

4. The Chief Executive Officer, Zila Parishad Bikaner, District Bikaner.

5. The Vikas Adhikari, Panchayati Samiti, Nokha, District Bikaner.

----Respondents

For Appellant(s) : Mr. R.N. Mathur, Sr. Advocate with Mr. Lokesh Mathur For Respondent(s) : Mr. Sunil Benilwal, AAG Mr. Manoj Bhandari, Sr. Advocate with Mr. Aniket Tater Mr. Naveen Jain, Principal Secretary, Department of Rural Development and Panchayati Raj Department, through VC Mr. Ghanshaym Sharma, Dy.

Secretary, Panchayati Raj Department through VC

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

19/12/2022

(2 of 8) [SAW-1044/2022]

The instant intra court appeal is laid before this Court in a

very peculiar set of facts and circumstances. The appellant herein

and the private respondent No.1 Majer Ali are both serving the

respondent Panchayati Raj Department as Vikas Adhikaris. On the

relevant date i.e., 15.06.2022, the respondent Majer Ali was

posted as Vikas Adhikari, Panchayat Samiti, Nokha. An order

dated 15.06.2022 came to be passed by the competent authority

whereby Shri Majer Ali was transferred to be posted as Vikas

Adhikari, Panchayat Samiti, Baran. Simultaneously, an order

dated 15.06.2022 was passed whereby, the appellant herein was

transferred and posted as Vikas Adhikari, Nokha. The respondent

Majer Ali filed writ petition (No.9017/2022) for assailing the

transfer order dated 15.06.2022 primarily on the ground that it

was a case of unjustified frequent transfers and that the writ

petitioner had been transferred six times over a period of two

years.

The appellant Abhimanyu Choudhary who was transferred

and posted at Nokha in place of Shri Majer Ali was not imleaded as

a party respondent in the aforesaid writ petition. Thus, an

impleadment application was filed on his behalf which was

accepted and the appellant Abhimanyu Choudhary was impleaded

as a party respondent in the writ petition by order dated

12.07.2022. On the same day, being satisfied with the

submissions made on behalf of the writ petitioner Shri Majer Ali,

that he had been transferred over six times in a short span of two

years, the learned Single Bench, proceeded to stay the effect and

operation of the order dated 15.06.2022 qua Shri Majer Ali and at

the same time, it was directed that the position of respondent

(3 of 8) [SAW-1044/2022]

No.5 i.e., the appellant herein who had joined on the post shall

not be disturbed.

It may be stated here that by the time, the impugned order

came to be passed, the writ petitioner Majer Ali was relieved and

the appellant Abhimanyu Choudhary had already joined on the

post. As a consequence of the above interim order, a bizarre

situation developed inasmuch both appellant and Majer Ali held

charge of the same post i.e, Vikas Adhikari, Panchayat Samiti

Nokha. Thereupon, the appellant herein also filed writ petition

( No.12369/2022) claiming a direction upon the respondents to

allow him to exercise administrative and financial powers which

were withheld on account of Majer Ali's joining back on the post.

Both the writ petitions (Nos.12369/2022 and 9017/2022)

were clubbed and the order dated 23.09.2022 came to be passed

by learned Single Bench observing that the State Government was

responsible for creating the confusion. The learned Single Bench,

refused to vacate the interim order dated 12.07.2022 expressing

that the writ petition (No.9017/2022) had to be decided finally.

The order dated 23.09.2022 is assailed in this intra-court appeal

filed by the appellant Abhimanyu Choudhary.

Shri R.N. Mathur, learned senior counsel assisted by Shri

Lokesh Mathur, Advocate representing the appellant urged that

the averment made by the respondent Majer Ali in the writ

petition (No.9017/2022) before the learned Single Bench that he

had been transferred frequently is totally incorrect. It was pointed

out that Shri Majer Ali was transferred as Vikas Adhikari,

(4 of 8) [SAW-1044/2022]

Panchayat Samiti, Nokha on 13.08.2021 and the questioned

transfer order dated 15.06.2022 came to be passed after nearly

ten months of he having held the charge of the post of Nokha. E-

converso, it is the appellant herein, who has been transferred six

times since 10.09.2021.

Shri Mathur placed reliance on the Supreme Court judgment

in the case of Executive Director, West Bengal Power

Development Corporation Ltd. vs Ardhendu Sekhar Bala &

Ors. reported in (2010) 1 SCC 351 and urged that as the

appellant had already joined on the post of Vikas Adhikari, Nokhar,

the order dated 12.07.2022, which amounted to bringing the

position to status quo ante could not have been passed. He thus,

implored the Court to set aside the impugned order and leave the

parties at liberty to raise all their contentions before the learned

Single Bench. He submitted that the appellant may be allowed to

perform his duties as Vikas Adhikari, Panchayat Samiti Nokha

without any hindrance.

Looking to the confusion prevailing in the matter, we had

directed the Additional Commissioner-cum-Deputy Secretary,

Panchayati Raj Department to remain personally present in the

court. The Secretary, Department of Rural Development and

Panchayati Raj was asked to join the proceedings through VC.

Today both the officers are present in hearing as directed.

Shri Sunil Beniwal, AAG representing the State Authorities,

urged that wherever the appellant Abhimanyu Choudhary was

posted, he indulged in misconduct and numerous inquiries have

(5 of 8) [SAW-1044/2022]

been opened against him. However, Shri Beniwal was not in a

position to explain the chaos and confusion which has been

created on account of posting of two Vikas Adhikaris on the same

post.

Shri Naveen Jain, Principal Secretary, Department of Rural

Development and Panchayati Raj appearing through VC submitted

that he shall immediately look into the matter and ensure that all

pending proceedings are taken to their logical conclusion. He also

assured the Court that henceforth this kind of situation of

confusion shall not be allowed to prevail and the transfers of the

officers under the Panchayati Raj Department shall be done

prudently by strict adherence to the prevailing Rules, Circulars and

Guidelines.

We have heard and considered the submissions advanced at

bar and have gone through the material placed on record.

It cannot be disputed that transfer of a Government

employee is an incident of service. This principle was reiterated by

Hon'ble Supreme Court in the case of SK Nausad Rahman &

Ors. vs Union of India & Ors. reported in (2022) 3 Supreme

593 observing as below:-

"23 While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind. 24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right

(6 of 8) [SAW-1044/2022]

or, for that matter, a vested right to claim a transfer or posting of their choice.

25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."

Ex-facie, we are of the opinion that the portrayal made on

behalf of Shri Majer Ali that he was made to suffer frequent

transfers does not stand to scrutiny because admittedly, the last

transfer of Shri Majer Ali by the impugned order dated 15.06.2022

was after a gap of ten months. As against this, the appellant

Abhimanyu Choudhary has faced six transfers from 10.09.2021.

Thus, comparatively speaking, the appellant Abhimanyu

Choudhary has faced harsher treatment in the matter of frequent

transfers. As the facts pertaining to the disciplinary inquiries

against Abhimanyu Choudhary are not a subject matter of this

appeal, it would be unjust to make comment thereupon. However,

it is expected that the concerned authority shall conclude these

proceedings expeditiously and take the same to their logical

conclusion. In any event, the fact remains that in compliance of

the transfer order dated 15.06.2022, the appellant Abhimanyu

Choudhary had joined the post of Vikas Adhikari, Panchayat Samiti

Nokha and the respondent Majer Ali had been relieved from the

said post much before the ad interim stay order bringing about

'status quo ante' was passed by learned Single Bench on

12.07.2022.

(7 of 8) [SAW-1044/2022]

Considered in light of the facts and circumstances as noted

above and the observations made by Hon'ble the Supreme Court

at Para 5 of the judgment in the case of Executive Director, West

Bengal Power Development Corporation Ltd. (supra) which reads

as below:-

"5. Considering the facts and circumstances of the present case, particularly the fact that Shri Kamal Das has already joined the post in the said School in place of Respondent 1, there was no necessity at that stage for the Division Bench to grant stay of the order of the learned Single Judge. Although the Division Bench by the impugned order had passed an interim order pending the disposal of the appeal, we are of the view that in view of the fact that Shri Kamal Das has already joined the post where Respondent 1 was working at the time of his transfer, there was no need to stay the operation of the impugned order of the learned Single Judge at that stage."

we feel that it was not a case warranting issuance of a

'status quo ante' order in favour of the writ petitioner Majer Ali.

The objection raised by Shri Manoj Bhandari, learned Senior

Counsel representing Shri Majer Ali that the order dated

12.07.2022 has not independently challenged in this appeal does

not hold water because the said order has merged in the

impugned order dated 23.09.2022.

As a consequence, the order dated 23.09.2022 and the ad

interim stay order dated 12.07.2022 are reversed. The parties are

relegated to approach the learned Single Bench for decision of writ

petitions Nos.12369/2022 & 9017/2022. The Secretary,

(8 of 8) [SAW-1044/2022]

Panchayati Raj Department shall ensure that such chaotic

situations are avoided in future as far as possible. The appeal is

allowed in these terms. No order as to costs.

                                   (KULDEEP MATHUR),J                                        (SANDEEP MEHTA),J
                                    32-Sudhir Asopa/-









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