Allowed

Rajesh v. State of Rajasthan

Rajasthan HC2 Aug 2023CW/5553/2021

Case brief

AI extract

What is this about?

A teacher posted in Jaisalmer challenged the rejection of her transfer request to her home district, Jhunjhunu. The High Court held the rejection illegal as the appointment pre-dated the restrictive clause of the Transfer Circular. The Court quashed the order, emphasized the statutory entitlement to inter-district transfer, and directed the State to provide a posting in Jhunjhunu.

What did the court decide?

The impugned order dated 17.02.2020 is quashed. Respondents directed to provide suitable posting in District Jhunjhunu within four weeks. Cost of Rs. 10,000 imposed on the State.

Rajesh Vs State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2023)

¶1

[2023:RJ-JD:24564]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Civil Writ Petition No. 5553/2021

¶4

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.

¶5

----Petitioner

¶6

Versus

¶7

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

¶8

The Director, Elementary Education, Rajasthan, Bikaner.

¶9

District Education Officer, Elementary Education, Jaisalmer.

¶10

District Education Officer, Elementary Education, Jhunjhanu.

¶11

----Respondents

¶12

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

¶13

JUSTICE DINESH MEHTA

Judgment

Reportable

02/08/2023

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.

¶18

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.

[2023:RJ-JD:24564]

[CW-5553/2021]

(2 of 8)

The petitioner is presently posted at Government Upper Primary School, Achala, Rasla, Panchayat Samiti Sam, DistrictJaisalmer amidst Thar desert, where not only the weather conditions even connectivity & infrastructure pose challenges.

¶23

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.

¶24

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.

¶25

During the pendency of above writ petition, on 11.11.2019, petitioner’s husband passed away.

¶26

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.

¶27

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

[2023:RJ-JD:24564]

[CW-5553/2021]

(3 of 8)

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.

¶32

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.

¶33

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.

¶34

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

[2023:RJ-JD:24564]

[CW-5553/2021]

(4 of 8)

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.

¶39

Heard learned counsel for the parties and perused the material available on record.

¶40

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.

¶41

“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”

¶42

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:-

¶43

“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

[2023:RJ-JD:24564]

[CW-5553/2021]

(5 of 8)

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

¶48

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.

¶49

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.

¶50

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.

¶51

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.

¶52

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

[2023:RJ-JD:24564]

[CW-5553/2021]

(6 of 8)

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.

¶57

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.

¶58

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.

¶59

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):-

¶60

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

(7 of 8)

[2023:RJ-JD:24564]

[CW-5553/2021]

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

¶65

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.

¶66

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 footnote in the transfer order dated 18.07.2013 is set aside.”

¶67

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.

¶68

The respondents are directed to dispassionately provide suitable posting to the petitioner in some school of District Jhunjhunu within a period of four weeks.

¶69

For what has been found by this Court, more particularly, in para No.21 above, a modest cost of 10,000/- is imposed upon₹ the State. The State shall be free to recover the same from the author of the order impugned.

(8 of 8)

[2023:RJ-JD:24564]

[CW-5553/2021]

The costs of 10,000/- be paid to the petitioner by way of₹ demand draft within a period of eight weeks from today.

¶74

The stay application also stands disposed of accordingly.

¶75

(DINESH MEHTA),J

¶76

409-Arvind/-

Rajesh v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Mahendra Singh Rathore Vs Rajasthan State Road Transport Corporation, Jaipur

Ram Kumar Sihag Vs State of Rajasthan

Kishori Lal Vs the State of Rajasthan

Jaimal Ram Vs State of Rajasthan

Sharda Vishnoi Vs State of Rajasthan

Surendra Kumar Jakhar Vs the State of Rajasthan and Ors.