Rajasthan High Court - Jodhpur

Rajesh vs State Of Rajasthan ... on 2 August, 2023

Bench: Dinesh Mehta

[2023:RJ-JD:24564]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5553/2021 Rajesh W/o Late Shri Satveer Singh, Aged About 36 Years, R/o Village And Post Bhaisawata, Tehsil Buhana, District Jhunjhunu. At Present Working As Teacher Grade Iii At Government Upper Primary School, Achala (Rasala), Panchayat Samiti - Sam, District Jaisalmer.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Elementary Education Department, Government Of Rajasthan, Jaipur.

2. The Director, Elementary Education, Rajasthan, Bikaner.

3. District Education Officer, Elementary Education, Jaisalmer.

4. District Education Officer, Elementary Education, Jhunjhanu.

                                                                      ----Respondents


     For Petitioner(s)          :    Mr. Ramdev Potalia
     For Respondent(s)          :    Mr. K.K. Bissa with Mr. G.S. Chouhan


                           JUSTICE DINESH MEHTA
                                      Judgment

Reportable                                                              02/08/2023

1. By way of present writ petition, while questioning the legality

of the order dated 17.02.2020, the petitioner has prayed that the

respondents be directed to transfer her from District Jaisalmer to

her home District, namely District Jhunjhunu.

2. The facts necessary to be borne in mind are that the

petitioner a resident of District Jhunjhunu, was appointed as a

Teacher by order dated 22.09.2007. She joined her services at

Government Primary School, Kalu Singh Ki Dhani, Mulana,

Panchayat Samiti Sam, District Jaisalmer on 26.09.2007 and since

then, she has been serving in District - Jaisalmer only.

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3. The petitioner is presently posted at Government Upper

Primary School, Achala, Rasla, Panchayat Samiti Sam, District-

Jaisalmer amidst Thar desert, where not only the weather

conditions even connectivity & infrastructure pose challenges.

4. The petitioner moved a representation dated 02.09.2019 to

the District Elementary Education, Bikaner for her transfer in

District Jhunjhunu, where her husband was working as Lower

Division Clerk Jhunjhunu, citing that she wished to take care of

her aging mother-in-law and two children.

5. The petitioner preferred a writ petition before this Court

being S.B. Civil Writ Petition No.16834/2019 with a grievance that

her representation was not being considered by the respondents.

Said writ petition came to be disposed of by a Co-ordinate Bench

of this Court vide order dated 16.12.2019, with a direction to the

respondents to decide petitioner's representation in accordance

with law.

6. During the pendency of above writ petition, on 11.11.2019,

petitioner's husband passed away.

7. In furtherance of above order dated 16.12.2019 of this

Court, the petitioner moved a fresh representation dated

26.12.2019 stating that she had been working in District Jaisalmer

since 2007 and pointed out that her husband has passed away.

She prayed that she be transferred to District Jhunjhunu in light of

the Circular dated 02.04.2018.

8. Petitioner's representation came to be rejected cursorily by

the respondent No.2, inter alia, observing that the Transfer

Policy/Circular dated 02.04.2018 contemplates only three

situations for inter-districts transfer; viz. (1) the persons suffering

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from serious ailments such as (i) cancer, (ii) kidney transplant,

(iii) heart surgery; (2) blind and (3) 100% physically disabled.

According to the respondent No.2, petitioner's case did not fall

under the above categories, hence, her request for inter-district

transfer merited rejection.

9. While turning down petitioner's representation, the

respondent No.2 stated that the petitioner is posted in District

Jaisalmer and transfer out of such District, was not permissible as

per the order of the State Government.

10. Mr. Potalia, learned counsel for the petitioner argued that the

respondent No.2 has completely misread the Circular/Transfer

Policy dated 02.04.2018 issued by the State Government. While

highlighting that the petitioner was appointed in the year 2007, he

submitted that para No.2.5 of the Circular clearly provides that the

teachers who have been appointed prior to 31.12.2008 in the

restricted/banned districts will be entitled for inter-district

transfers.

11. Mr. Bissa, learned government counsel submitted that the

petitioner is not entitled for transfer in view of para Nos.2.2 & 2.3

of the Circular dated 02.04.2018. He submitted that a combined

reading of para No.2.3 and 2.4 of the Circular clearly suggests

that the teachers who have been appointed before 31.12.2012 are

eligible to be transferred within the restricted districts only, that

too in the contingencies mentioned in point Nos.1 to 9 of para

No.2.4.

12. He added that since category of widow teacher has been

mentioned in point No.8 of para No.2.4 of the Circular, the

petitioner can be transferred, but only to a district which is

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restricted/banned district, such as Jaisalmer, Barmer etc. While

emphasising that Jhunjhunu is an open area district, he argued

that the petitioner cannot be transferred to District Jhunjhunu and

her representation has rightly been rejected by the respondent

No.2.

13. Heard learned counsel for the parties and perused the

material available on record.

14. The order impugned dated 17.02.2020 passed by the

Director, Elementary Education, Bikaner does not inscribe the

reason, which is being tried to be canvassed, if not supplemented

by learned counsel for the State. What has been written in the

order under challenge unravels the adament and stubborn attitude

of the officers of the State. It is deemed imperative to reproduce

the offending part of the order; hence, the same is being

reproduced.

"jkT; ljdkj }kjk dkfeZdksa ds LFkkukUrj.k ls izfrcU/k gVkus ds i"pkr~ Ldwy f"k{kk foHkkx jktLFkku ljdkj }kjk i=kad i-5¼5½izkf"k@2018 fnukad 02-04-18 ls izns"k esa dk;Zjr r`rh; Js.kh v/;kidksa ls LFkkukUrj.k gsrq vkosnu vkeaf=r fd;s x;s rFkk bl ckcr lkekU; fn"kk funsZ"k tkjh fd;s x;sA jkT; ljdkj }kjk tkjh LFkkukUrj.k vkosnu i= ds uksV esa ;g Hkh vafdr gS fd ^^;g LFkkukUrj.k vkosnu i= LFkkukUrj.k fd;s tkus dk vf/kdkj iznku ugha djrk gSA jkT; ljdkj ds fn"kk&funsZ"kksa esa fo/kok efgyk dks izkFkfedrk iznku djus dk dksbZ mYys[k ugha gS lkFk gh Lo;a ds inLFkkiu 700 fdeh nwj gksuk gh vafdr fd;k gS tks dh LFkkukUrj.k gsrq leqfpr vk/kkj ugha gSA"

15. Even if, arguments of Mr. Bissa are considered, the same do

not provide any shield or justification qua the order impugned,

more particularly, in the face of para No.2.5 of the Circular dated

02.04.2018, which reads thus:-

"2-5 izfrcaf/kr ftyksa esa dk;Zjr ,sls leLr r`rh; Js.kh v/;kid tks fnukad 31-12-2008 ls iwoZ ds fu;qDr gS] os

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vUrj&ftyk (Inter-District) LFkkukUrj.k gsrq vkosnu izLrqr djus ds fy, ik= gksaxsA"

16. It is not in dispute that the petitioner was appointed on

22.09.2007 and joined her services on 26.09.2007 obviously,

before 31.12.2008. The petitioner's case is, therefore, completely

covered by para No.2.5 of the Circular dated 02.04.2018.

17. This Court hastens to add that the respondents' action of

creating hypothetical restricted area by putting some of the

districts of the State in restricted category and keeping the others

open, itself is arbitrary and discriminatory.

18. In the opinion of this Court, an employee cannot be forced to

serve in the areas like Jaisalmer and Barmer, which are rather

difficult area till indefinite period. Imposing a ban or restriction to

the effect that a teacher posted in such area will not be

transferred out, itself is illegal, injudicious and against the very

ethos of good governance.

19. The State is bound to face difficulty in giving postings, as

some employees may not readily accept their deployment in such

districts; they may even resist such posting, but then, instead of

impressing and imposing upon such employees to serve in those

tough terrain, the State's approach of compelling the persons

already stationed in such zones to serve there for indefinite period

is irrational and iniquitous. Such approach is violative of

fundamental rights of the employees like the petitioner, who is

residing 700 kilometers away from her home for last 16 years to

serve the State.

20. If the State is not in a position to persuade the employees to

go to such restricted area, it cannot, in any case, refuse to

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transfer an employee out of such area on the ground that a

particular district falls in the so-called restricted area, more

particularly, in a genuine case like the one, which this Court is

seized of.

21. The respondent No.2 - the Director, Elementary Education,

Bikaner has casually nay callously dealt with the petitioner's

representation/grievance. He has not even looked at the Circular

dated 02.04.2018. It is a matter of grave concern that though the

petitioner's representation was crisp and categorical-she had

clearly referred to para No.2.5 of the Circular dated 02.04.2018,

but the respondent No.2 has discussed other paragraphs of the

Circular, except para No.2.5, which covers the petitioner's case

squarely. The part of the impugned order which has been

reproduced in para No.14 above exhibits absolute apathy of the

respondent No.2. His writing that the Circular does not provide

any right of transfer and that the distance of 700 kilometers from

hometown is no ground of transfer is nothing short of adding

insult to the injury.

22. During the course of hearing, learned Government Counsel

was asked a question, as to whether he is in a position to make a

statement that no teacher has ever been transferred on these

grounds? To which he had no answer.

23. Somewhat similar observations were made by Hon'ble the

Chief Justice's Court on 06.10.2017, while deciding a writ petition

(S.B. Civil Writ Petition No.2398/2016):-

"2. The facts which I would be noting hereinafter would bring how the authorities of

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the State play around and probably create such circumstances where corruption can flourish.

7. For the reasons the respondents have not pleaded separate seniority list of Para-Medic being maintained district wise and there is apparent discrimination I declare that it would be too harsh upon the petitioners to be forced to service all their lives in District Barmer and Jaisalmer. All Para-Medics should bear burden of working in tough Districts.

8. The petition is disposed of quashing note appended to the transfer order as prayed for in the writ petitions. Condition No.1 was a foot- note in the transfer order dated 18.07.2013 is set aside."

24. In view of whatever has been discussed hereinabove and

having regard to the fact that the petitioner is a widow lady

serving 700 kilometers away from her home district and she has

to take care of her widow mother-in-law and two children and

moreover, because her case is fully covered by para No.2.5 of the

Circular dated 02.04.2018, the writ petition is allowed. The

impugned order dated 17.02.2020 is hereby quashed and set

aside.

25. The respondents are directed to dispassionately provide

suitable posting to the petitioner in some school of District

Jhunjhunu within a period of four weeks.

26. For what has been found by this Court, more particularly, in