Rajasthan High Court

Dr. Aneesh Yadav S/O Phool Singh ... vs State Of Rajasthan on 3 March, 2022

Bench: Inderjeet Singh

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 3012/2022

Dr. Aneesh Yadav S/o Phool Singh Yadav, Aged About 32 Years,
R/o R/o C-175, Mahesh Nagar, 80 Ft Road, Tonk Phatak, Jaipur
(Raj)
                                                                     ----Petitioner
                                    Versus
1.      State Of Rajasthan, Through The Principal Secretary,
        Medical And Health Services Department Rajasthan,
        Secretariat, Jaipur. (Raj.)
2.      Deputy Secretary, Department Of Medical And Health
        (Group-2) And Panchayati Raj (Medical) Department
        Secretariat, Jaipur (Raj.)
3.      Director And Ex Officio, Dept Secretary, Medical And
        Health Services, Esi Scheme, Laxmi Nagar, Ajmer Road,
        Jaipur (Raj.)
4.      Officer Incharge, Esi Dispensary No. 4, Sodala, Jaipur,
        (Raj.)
5.      Dr    Gulshan      Kumar,        Medical        Officer     (Dental)   Esi
        Dispensary Kanota, Jaipur (Raj)
                                                                  ----Respondents

For Petitioner(s) : Mr. Sudhir Yadav.

For Respondent(s) : Mr. Arvind Kumar Sharma.

Ms. Monti Kumari Khatri.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

03/03/2022

This writ petition has been filed by the petitioner challenging

the transfer order dated 23.02.2021 passed by the respondents

as well as the order dated 08.02.2022 passed by the Rajasthan

Civil Services Appellate Tribunal, Jaipur (hereinafter to be referred

(2 of 5) [CW-3012/2022]

as 'Tribunal') whereby the appeal filed by the petitioner against

the transfer order dated 23.02.2021 has been dismissed.

Brief facts of the case are that the petitioner who is Dental

Surgeon was transferred from ESI Dispensary No.4, Jaipur to

Community Health Center, Sanwar District Ajmer. Being aggrieved

by the said order, the petitioner filed an appeal No.1473/2021

before the Tribunal which was dismissed by the tribunal vide order

dated 08.02.2022. Hence, this writ petition has been filed by the

petitioner challenging the order dated 08.02.2022 passed by the

tribunal as well as the transfer order dated 23.02.2021.

Counsel for the petitioner submits that the petitioner has

been transferred by the respondents in an arbitrary manner, just

to accommodate the private respondent No.5 under the political

pressure. Counsel further submits that earlier also to

accommodate the private respondent No.5, the respondents

passed the transfer order on 30.12.2020 and on the next date on

31.12.2020 the respondents again passed his transfer order.

Counsel further submits that the petitioner and the private

respondent No.5 were simultaneously appointed and they both

stayed at the same place since 2018. Counsel further submits that

the respondents have passed the transfer order without

application of mind and in a mala fide manner.

In support of his contention counsel relied upon the

judgment passed by the Co-ordinate Bench of this court at

Principal seat Jodhpur in the matter of Dr. Ajay Kumar Sharma

Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition

No.4676/2000) decided on 27.08.2002 and further relied upon

the judgment passed by the Co-ordinate Bench of this court at

Principal seat Jodhpur in the matter of Smt. Meenaxi Sharma

(3 of 5) [CW-3012/2022]

Vs. Staet & Ors. (S.B. Civil Writ Petition No.10428/2009)

decided on 26.03.2010.

Counsels for the respondents have opposed the writ petition.

Heard counsel for the parties and perused the record.

The Hon'ble Supreme Court in the matter of Union of India

and Anr. Vs. Deepak Niranjan Pandit and Anr. reported in

(2020) 3 Supreme Court Cases 404 in para Nos. 3 and 4 has

held as under:-

"3.The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which was weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view.

4.However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful

(4 of 5) [CW-3012/2022]

order of transfer is disquieting. We express our disapproval".

The Hon'ble Supreme Court in the matter of 'Rajendra

Singh & Ors. Vs. State of Uttar Pradesh & Ors. reported in

(2009) 15 Supreme Court Cases 178, where in para Nos. 8, 9

& 10, it has been held as under:-

"8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal; SCC P.406 para 7).

9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar & Ors.1, this Court held : (SCC p.661, para 4) "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other.

Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be

(5 of 5) [CW-3012/2022]

complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."

10. In N.K. Singh v. Union of India, this Court reiterated that : (SCC p. 103; para 6) "6. ... the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision...."

This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, the petitioner who is a

Government employee and working at the same place since 2018,

cannot claim to serve at a particular place of his choice, in view of

the judgment passed by the Hon'ble Supreme Court in the matters

of Union of India & Rajendra Singh (both supra); secondly,

the petitioner has been transferred by the respondents in the

administrative exigency; thirdly, in the facts and circumstances of

the present case, no case is made out for interference by this

court in the impugned orders.