1. - Heard learned counsel for the petitioner and counsel appearing on behalf of Home Department as well as counsel for respondent No. 3.

2. In this writ petition, the petitioner has prayed for quashing order Annex. 2 dated 25.10.2010, whereby, respondent No. 3, who is substantively working on the post of A.P.P. -I, was given posting on his own desire on the higher post of Assistant Director (Prosecution), Jodhpur. Main contention of the petitioner is that in the final seniority list of A.P.Ps. I, dated 22.8.2008/5.9.2008, name of the petitioner appears at S. No. 39 whereas name of respondent No. 3 finds place at S. No. 65, therefore, obviously, respondent No. 3 is much junior to the petitioner as per the seniority-list but ignoring this fact as per desire of respondent No. 3 he has been posted on higher post.

3. Grievance of the petitioner is that respondent No. 3 being much junior candidate cannot be posted on higher post of Assistant Director (Prosecution) at Jodhpur. Further, it is pointed out that no regular promotions through the Department Promotion Committee have been made by the respondent as per rules, therefore, there is no question of giving posting to the junior person no higher post ignoring the petitioner's candidature. So also, no person can be given posting on higher post without adjudging suitability by the DPC, but, here, in this case, neither the case of the petitioner nor that of respondent No. 3 has been adjudged by the DPC as per rules, therefore, the posting given to respondent No. 3 on the post of Assistant Director (Prosecution), Jodhpur is illegal because the post on which he has been posted is to be filled in by way of promotion and such posting of respondent No. 3 is in complete violation of the rules, therefore, impugned order deserves to be quashed.

4. Learned counsel for the petitioner argues that even though there is provision for promotion in the rules after determination of vacancy by the Departmental Promotion Committee and, at that time, the service record of the incumbent can be assessed, but, here, in this case, a complete good-bye is bid to the rules for the purpose of deputing a junior person on higher post which is further evident from the fact that order of posting has been made as per desire of respondent No. 3. In this view of the matter, the order impugned whereby respondent No. 3 has been given posting on higher post on his desire although he is much junior to the petitioner deserves to be quashed and set aside.

5. Learned counsel for the State submits that this is simple transfer order and not promotion order and the petitioner cannot be allowed to say that State Government cannot pass order deputing any junior person on a higher post. He submits that the petitioners case is under consideration for promotion and, as and when the DPC will finally decide the matter for purpose of giving promotion on the post of Assistant Director (Prosecution), the petitioner shall be given benefit of promotion as per recommendation of the DPC. At present, the State Government is at liberty to give transfer posting to any person on higher post which cannot be objected to by the petitioner.

6. Learned counsel for the State further pointed out that the main limb of argument of the petitioner is that order impugned is promotion order but this fact is not correct because upon perusal of the order impugned it will be revealed that it is only transfer order whereby posting has been made, therefore, the contention of the petitioner is not sustainable that by impugned order of transfer, Annex. 2 dated 25.10.2010 is promotion order and his junior person has been promoted. In this view of the matter, there is force in this writ petition and same may be dismissed.

7. Learned counsel appearing on behalf of respondent No. 3 vehemently argued that as per service record of the petitioner he is not entitled for posting on higher post even though petitioner is senior than respondent No. 3, therefore, obviously r