Narendra Kumar Sharma vs State Of Rajasthan ...
2023 Latest Caselaw 8501 Raj

[2023:RJ-JD:34956]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15772/2022

Rajesh Barber S/o Shri Mishri Lal Ji, Aged About 46 Years, R/o Sen Gali, Sadar Bazar, District Sirohi, Rajasthan.

----Petitioner Versus

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

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

3. The Chief Block Education Officer, Sirohi Block, Sirohi, Rajasthan.

4. The Director-Cum-Commissioner, State Project Samagra Shiksha Abhiyan, Rajasthan School Education Council, Jaipur.

5. The Additional Director, State Project Samagra Shiksha Abhiyan, Rajasthan School Education Council, Jaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 16543/2022 Narendra Kumar Sharma S/o Shri Bithal Datt Sharma, Aged About 58 Years, Resident Of R C Vyas Colony, Bhilwara.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Secondary Education Department, Govt. Of Rajasthan, Jaipur.

2. Director, Secondary Education Department, Bikaner.

----Respondents S.B. Civil Writ Petition No. 17827/2022 Rameshwar Lal S/o Shri Jassu Ram Kumhar, Aged About 41 Years, R/o Village Post Pabuji Nagar Takon Ki Dhani Post Ridmalsir Tehsil Auu District Jodhpur At Present Posted At Govt. Upper Primary School Godhara Ki Dhani Manasar (Ridmalsir) Jodhpur, Rajasthan.

----Petitioner Versus

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

2. Director, Secondary Education Department, Bikaner, Rajasthan.

3. Joint Director, School Education Department, Division Jodhpur, Rajasthan.

4. District Education Officer, Secondary Education Jodhpur.

5. Block Education Officer, Secondary Block Aau District Jodhpur.

6. The Peeo, Government Senior Secondary School Ridmalsir Block Aau District Jodhpur.

----Respondents S.B. Civil Writ Petition No. 824/2023 Kishan Lal S/o Devi Chand, Aged About 44 Years, By Caste Meghwal, Resident Of Ranodar, Tehsil Chitalwana, District Jalore (Raj.).

----Petitioner Versus

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

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

3. The District Education Officer (Headquarter), Bikaner, Rajasthan.

4. The Chief Block Education Officer, Samagra Shiksha, Chitalwana, District Jalore.

----Respondents S.B. Civil Writ Petition No. 1296/2023 Sunita Kumari D/o Shri Pawan Kumar Goyal W/o Shri Ravinder Kumar, Aged About 33 Years, Resident Of Ward No. 11, Bhadra, 6Sdr, District Hanumangarh, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Education Department (Secondary), Secretariat, Jaipur, Rajasthan.

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2. Director, Secondary Education Rajasthan, Bikaner.

3. Divisional Joint Director, School Education, Bikaner Division, Bikaner, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Dheerendra Singh Sodha Mr. Pramendra Bohra Mr. Tanwar Singh Mr. Teja Ram Mr. Govind Lal For Respondent(s) : Mr. Hemant Choudhary, GC Mr. Vishal Jangid, Dy.GC

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

13/10/2023

1. The petitioners have approached this Court challenging their

respective transfer orders.

2. The main ground canvased by the petitioners at the time of

admission of these writ petitions was, that transfer orders did not

contain any stipulation regarding payment of TA & DA, thus, the

transfer orders are bad in the eyes of law.

3. Mr. Vishal Jangid, at the outset submitted that in most of the

cases, the State Government has either ordered for TA & DA or

has taken an in-principle decision that applicable TA & DA as per

rules, shall be paid to all the transferred employees.

4. Learned counsel for the respondents then argued that merely

because stipulation regarding payment of TA & DA is absent, the

transfer order as a whole does not become fundamentally void.

5. In support of his contention that the order does not become

void for want of payment of TA & DA, learned Government

Counsel relied upon the judgment dated 15.01.2018, passed by a

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coordinate Bench of this Court in the case of Jagdish Chandra Sen

Vs. State of Raj. & Ors. : S.B. Civil Writ Petition No.8224/2017.

6. In prima facie opinion of this Court, absence of condition or

stipulation regarding payment of TA & DA, per se does not render

a transfer order fundamentally void; it is only a procedural lapse

or lacunae, which can be cured subsequently.

7. That apart scope of interference of this Court in the matters of

transfer is limited to cases wherein orders are shown to be

arbitrary, malafide without jurisdiction or contrary to the transfer

policy.

8. According to this Court, non-payment of TA & DA does not

violate the transfer policy, nor does it affect the fundamental

rights of the employees warranting interference. Impugned

transfer orders do not require any interference by this Court.

9. At this juncture, learned counsel for the petitioners submitted

that there are judgments/orders passed by this Court taking a

different view than what has been taken in the case of Jagdish

Chandra Sen (supra).

10. Learned counsel for the petitioners, also submitted that there

are additional grounds raised by the petitioners, such as frequent

transfers etc.

11. Having regard to the facts and circumstances of the case and

considering that there is divergence of the views on the issue as

to whether for want of stipulation regarding TA & DA, the order

becomes bad in the eye of law, ideally the matter needs to be

referred to a larger Bench. However, considering that the interim

orders have been passed in petitioners' favour, on the ground that

the TA & DA has not been paid to them and same are continuing

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till today and that we are in midst of session, this Court feels that

vacating interim orders, at this juncture, would not only affect

petitioners' rights but would also affect the interest of the students

of the schools in which they are teaching, as the session is almost

over and final examinations are in offing.

12. All these writ petitions are, therefore, disposed of while

making the interim orders absolute and giving the respondents a

liberty to pass fresh order of transfer(s) in accordance with law.

13. In case the State considers it necessary fresh order of

transfer(s) can be passed qua the petitioners but not upto

15.12.2023.

14. The petitioners shall obviously have a liberty to challenge

fresh order(s) (if any passed by the respondents), in accordance

with law.

15. Needless to observe that if any of the above petitioners was

not paid TA & DA, the State shall pay the same in accordance with

law latest by 15.11.2023.

16. Stay petitions also stand disposed of accordingly.

17. The order has been passed based on the submissions made in

the petition, the respondents would be free to examine the

veracity of the submissions made in the petition and only in case,

the averments made therein are found to be correct, the

petitioners would be entitled to the relief.

(VINIT KUMAR MATHUR),J 296, 300, 302, 312 & 313-Shahenshah/-

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