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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SUDESH BANSAL, J.
Sanjay Pande S/o. Late Shri H.C. Pande - Petitioner
Versus
The State of Rajasthan, Through Principal Secretary, Department of Tourism, Government of Rajasthan, Government Secretariat & Ors. - Respondents
S.B. Civil Writ Petition No. 1618 of 2022
Decided On : 14-03-2023
TRANSFER OF GOVERNMENT EMPLOYEE - TRANSFER OUTSIDE CADRE - REQUIREMENT OF CONSENT - APPROVAL OF DEPARTMENT OF PERSONNEL - VALIDITY OF TRANSFER ORDER - INTERPRETATION OF RELEVANT PROVISIONS - JUDICIAL REVIEW.
Fact of the Case:
Petitioner, an employee of the Rajasthan Tourism Service Cadre, challenged the transfer order issued by the respondents transferring him from his cadre post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur, to the post of Additional Director, Tourist Reception Center, Delhi, which is a post of RAS cadre (Temporary). The petitioner contended that the transfer was arbitrary, illegal, and without his consent.
Finding of the Court:
The court found that the post of Additional Director, Tourist Reception Center, Delhi, was a temporary post of RAS cadre and that the petitioner, who belonged to the Rajasthan Tourism Service Cadre, could not be transferred to that post without his consent. The court also found that the respondents had failed to justify any good reason for the transfer and that the transfer order was not passed bonafidely within the parameters of law.
Issues: 1. Whether the transfer of the petitioner outside his cadre was valid without his consent? 2. Whether the approval of the Department of Personnel was sufficient to validate the transfer? 3. Whether the transfer order was arbitrary, illegal, and not passed bonafidely?
Ratio Decidendi: The court held that the transfer of the petitioner outside his cadre without his consent was invalid. The court relied on the Supreme Court judgment in Prasar Bharti v. Amarjeet Singh, which held that "transfer" is limited to equivalent posts in the same cadre and department, while "deputation" is service outside the cadre or parent department. The court also held that the approval of the Department of Personnel was not sufficient to validate the transfer, as the transfer was still outside the petitioner's cadre and without his consent.
Final Decision: The court quashed and set aside the impugned transfer order dated 29.9.2021, the order of the Tribunal dated 21.1.2022, and the relieving order dated 30.9.2021. The court directed the respondents to resume the petitioner's posting as Additional Director (Development), Tourism Department, Government of Rajasthan.
ORDER :
1. By way of instant writ petition filed by petitioner under Article 227 of the Constitution of India, challenge has been made to the order dated 21.01.2022 in appeal No.4746/2021 by the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter “the Tribunal”), dismissing the appeal filed by petitioner and affirmed the impugned transfer order dated 29.09.2021 whereby petitioner has been transferred outside of his cadre i.e. from the post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur to the post of Additional Director, Tourist Reception Center, Delhi.
2. Petitioner states that in the cadre of Rajasthan State Tourism Service, there is only one single post of the rank of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur and since petitioner belongs to this cadre, he was posted on this post in the year 2016-17. Petitioner states that later on, in order to harass him he was placed under APO vide order dated 18.11.2020 by the Joint Secretary, Tourism Department, Government of Rajasthan, Jaipur. This order of APO was arbitrary, against the law and malicious, therefore, petitioner had to challenge the order of APO dated 18.11.2020 by way of filing SBCWP No.14336/2020, in which the Hon’ble High Court vide order dated 16.12.2020, stayed the APO order and directed respondents to allow the petitioner to perform his duties on the post. Petitioner states that accordingly pursuant to directions of Court, petitioner was allowed to resume and continue his duties on the post of Additional Director (Development), Tourism Department, Government of Rajasthan, Jaipur. Petitioner further states that during operation of stay order dated 16.12.2020, to nullify the same and to harass the petitioner, the Joint Director, Tourism Department, Government of Rajasthan, Jaipur has issued the impugned transfer order dated 29.9.2021 whereby the petitioner has been transferred to his Non-cadre post of Additional Director, Tourist Reception Center, Delhi, which is a post of RAS cadre (Temporary). Petitioner pointed out that the transfer of petitioner out of his cadre post, without his consent is arbitrary as much as illegal, if on the post of Additional Director, Tourist Reception Center, Delhi any senior officer of the Tourism Department was to be posted, respondents could have sent any senior officer on deputation after obtaining his consent because the said post is falling in the RAS cadre. Petitioner pointed out that the learned Tribunal has not adverted to this aspect, therefore, the order of Tribunal dated 21.1.2022 and the impugned transfer order dated 29.9.2021 so also the relieving order of petitioner dated 30.9.2021, be quashed and set aside. Petitioner has referred two judgments of Apex Court :
(ii) State of Punjab Vs. Inder Singh [(1997) 8 SCC 372]
3. Respondents have filed reply to the writ petition on 8.2.2022. In para 6 of the reply, it has been stated that there are four sanctioned posts of RAS cader in the Tourism Department, out of which two posts are of regular cadre post (one higher super timer and one super time scale) and other posts are temporary. It has been submitted that out of two temporary posts of RAS cadre, one temporary post was sanctioned as Additional Director (South), Tourism Information Center, Chennai. Subsequently, the said post in Chennai was transferred to the Tourism Reception Center, Delhi vide order dated 17.7.2015. It has been submitted that as the post of Additional Director, Tourism Reception Center, Delhi was a RAS Cadre post and the Department of Personnel is cadre controlling of RAS cadre, therefore, before transferring the petitioner who is senior officer belonging to Rajasthan Tourism Service Cadre, on the post of Additional Director, Tourism Reception Center, Delhi, approval of the Department of Personnel, Government of Rajasthan was sought and when the Department of P
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