Rajasthan High Court - Jodhpur
Balram Sharma vs State Of Rajasthan (2024:Rj-Jd:39402) on 23 September, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:39402]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13477/2024
Balram Sharma S/o Shri Rambharosi Sharma, Aged About 34
Years, Resident of A - 1 Narayan Enclave -A, Near Bikaner
Paradise, Mangyawas, Sanganer, Jaipur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Additional Chief
Secretary, Forest Environment And Climate Change
Department, Rajasthan, Secretariat, Jaipur (Raj.).
2. Deputy Secretary To Government, Forest Environment
And Climate Change Department, Rajasthan, Secretariat,
Jaipur (Raj.).
3. Monali Sen, Special Secretary To Government, Forest
Environment And Climate Change Department, Rajasthan,
Secretariat, Jaipur (Raj.).
----Respondents
For Petitioner(s) : Mr. B.S. Sandhu with
Mr. Divik Mathur
For Respondent(s) : Mr. Jitendra Kumar Mishra, AGC
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
23/09/2024
1. Heard learned counsel for the parties.
2. The present writ petition has been filed against the order
dated 05.08.2024 (Annex.15) passed by respondent No.2-Deputy
Secretary to Government, Forest Environment and Climate
Change Department, Rajasthan, whereby, the petitioner has been
transferred to the Office of Principal Chief Conservator of Forest,
Jaipur, on the post of Deputy Conservator of Forest EGS. The
petitioner has also challenged the order dated 07.05.2024,
[2024:RJ-JD:39402] (2 of 5) [CW-13477/2024]
whereby, the petitioner has been placed under Awaiting Posting
Order. However, learned counsel for the petitioner, at the outset,
does not want to press the prayer for quashing the order dated
07.05.2024, placing the petitioner under Awaiting Posting Order.
3. Briefly noted the facts in the present writ petition are that
the petitioner was appointed on the post of Assistant Conservator
of Forest vide order dated 11.03.2015 by way of direct
recruitment examination conducted by the Rajasthan Public
Service Commission. After appointment on the post of Assistant
Conservator of Forest, the petitioner was promoted to the post of
Deputy Conservator of Forest at the relevant point of time. He was
then posted on the post of Deputy Conservator of Forest-IGNP-II
at Jaisalmer. While working as such, the petitioner has been
placed under Awaiting Posting Order on 07.05.2024. The
petitioner challenged this order of awaiting posting by way of filing
an appeal before the Rajasthan Civil Services Appellate Tribunal
but, the same has been dismissed by the Tribunal vide order dated
19.06.2024. The petitioner further challenged the order dated
19.06.2024 by way of filing a writ petition before this Court being
S.B. Civil Writ Petition No.11165/2024. During pendency of the
writ petition, the petitioner has been transferred vide order dated
05.08.2024 to the Office of Principal Chief Conservator of Forest,
Jaipur, on the post of Deputy Conservator of Forest EGS. Hence,
the present writ petition has been filed.
4. Learned counsel for the petitioner submits that the transfer
order dated 05.08.2024 has been passed during the ban period
without complying with the directions issued in the orders dated
04.01.2023 & 03.01.2024, which is a gross violation of the ban
[2024:RJ-JD:39402] (3 of 5) [CW-13477/2024]
orders imposed by the State Government. Leaned counsel further
submits that in the transfer order dated 05.08.2024, there is no
mention of any emergency/urgency and further, the transfer order
does not indicate that the same has been passed after taking
approval from the Office of the Hon'ble Chief Minister. He submits
that the issue involved in the present case is squarely covered by
a judgment rendered by this Court in S.B. Civil Writ Petition
No.10490/2024 (Dr. Mahesh Kumar Panwar vs. State of
Rajasthan & Ors.) decided on 09.09.2024. He, therefore, prays
that the writ petition may be allowed and the transfer order dated
05.08.2024 may kindly be quashed and set-aside.
5. Per contra, learned counsel for the respondents submits that
the order dated 05.08.2024 has been passed on account of a
preliminary enquiry pending against the petitioner. He submits
that the petitioner has committed gross misconduct and has
violated the directions issued by the superior authorities. Learned
counsel for the respondents, however, is not in a position to
controvert the fact that the transfer order has been passed
without taking any concurrence from the Office of the Hon'ble
Chief Minister. He is also not in a position to refute the fact that
the present controversy is covered by the judgment rendered by
this Court in the case of Dr. Mahesh Kumar Panwar (supra).
6. I have considered the submissions made at the Bar and have
gone through the relevant records of the case.
7. That facts narrated and the submissions made hereinabove
clearly depict that the petitioner has been placed under Awaiting
Posting Order on 07.05.2024 while he was working on the post of
Deputy Conservator of Forest IGNP at Jaisalmer and the same was
[2024:RJ-JD:39402] (4 of 5) [CW-13477/2024]
challenged before this Court by way of filing a writ petition.
However, before the writ petition could be decided, the petitioner
has been transferred vide order dated 05.08.2024 to the Office of
Principal Chief Conservator of Forest, Jaipur. A bare perusal of the
transfer order shows that the same has been passed during the
period of Ban imposed by the State Government. It further reveals
that no concurrence has been taken from the Office of Hon'ble
Chief Minister before passing the transfer order and no emergent/
urgent situation has been mentioned while transferring the
petitioner to Jaipur. In reply, the respondents have categorically
stated that as there was a preliminary enquiry pending against the
petitioner, as such he was transferred out of Jaisamer to keep the
petitioner away from the place of enquiry so that he may not
influence the proceedings in any manner.
8. The ground on which the petitioner has been transferred is
de-hors the law. A government servant cannot be transferred on
the ground that some preliminary enquiry is pending against him
and he is likely to influence the enquiry proceedings. In such a
situation, the recourse available under the Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 is required to be
made applicable which gives ample power to the employer i.e. the
State Government for placing a government servant under
suspension during the course of enquiry. In the opinion of this
Court, transfer could not be used as a tool to keep a government
servant away from the place where the enquiry is being held
against him.
9. It is also true that there is no absolute ban on the transfers
in view of the orders dated 04.01.2023 & 03.01.2024 as the State
[2024:RJ-JD:39402] (5 of 5) [CW-13477/2024]
Government can issue transfer orders during such period provided
any emergent/urgent situation arises, after taking due permission/
concurrence from the Office of the Hon'ble Chief Minister.
However, in the present case, neither any emergent/urgent
situation has been mentioned in the transfer order nor any
concurrence has been taken by the respondents from the Office of
Hon'ble Chief Minister.
10. This Court, in somewhat similar situation, has taken a view
that the transfer order passed without any administrative exigency
or emergent nature and without the concurrence from the Office
of Hon'ble Chief Minister is not sustainable.
11. In view of the discussion made above, the writ petition
merits acceptance. The same is allowed. The transfer order dated
05.08.2024 (Annex.15) as well as the consequential relieving
order passed, if any, are quashed and set-aside. The salary for the
period for which the petitioner has been put under Awaiting
Posting Order shall be considered by the respondents on an
appropriate representation being filed by the petitioner by passing
a speaking order within a period of four weeks from the date of
filing of such representation.
12. It is made clear that the respondents will be free to pass an
appropriate order for posting the petitioner, in accordance with
law.
(VINIT KUMAR MATHUR),J
447-/Arun Pandey/-
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