SHARMA, J. - (1.) SINCE identical questions of fact and law are involved in all these writ petitions, they are being disposed of by a common order.
(2.) ALL the petitioners were appointed as Teacher Grade III and they were asked to furnish undertaking that they would work for 10 years at their respective place of posting and would not make request for transfer to any other district. In case such request for transfer is made before expiry of 10 years, they would deposit Rs. 20,000/-with the State Treasury. ALL the petitioners executed the bonds incorporating aforequoted undertaking. It appears that immediately after joining at their respective places of posting, the petitioners made request seeking transfer at their desired places. Some of the petitioners deposited Rs. 20,000/-with the State Treasury. However, the petitioners got success in seeking transfers at the desired places. But suddenly the State Government passed an order on June 28, 1999 imposing condition No. 3 that transfer of the teachers who executed bond not to make request for transfer till the expiry of ten years, stood automatically cancelled and they would not be relieved in any case whatsoever. The petitioners seek to quash this condition No. 3 of the order dated June 28, 1999 in the instant writ petitions and to implement their transfer orders. It was pleaded on behalf of the State of Rajasthan that the Government framed a new transfer policy in the year 1999 and as per the said policy it was decided that the earlier policy of taking Rs. 20,000/-from the employees for their transfer shall be abandoned and the condition which remained in existence was that if a candidate seeks appointment in pursuance to the advertisement issued by the District concerned, he shall have to serve at the place of posting for a period of 10 years. This condition was imposed looking to the required number of teachers who face difficulty in running the schools. The teachers were asked to furnish undertaking in the interest of students. Condition No. 3 of the order dated June 28, 1999 is in the large interest of the public and the students. Rather when the petitioners have given undertaking to serve at a place where they were posted then seeking any mandamus contrary to their own undertaking is wholly erroneous. The order of transfer can only be interfered with when it is malafide and contrary to the statutory provisions. As condition No. 3 has been imposed for public cause and there is no malafide behind it, this court should not interfere in the matter. I have heard learned counsel and carefully perused the material on record. Before dealing with the rival submissions, I deem it necessary to look at the statutory provisions regarding transfer of an employee from one Panchayat Samiti to another. Sub section (8) of section 89 of the Rajasthan Panchayati Raj Act 1994 (for short the Act 1994) provides that appointment by transfer shall be made after consultation with the Pradhans of Panchayat Samities or Pramukhs of Zila Parishads from and to which such transfer is proposed to be made. Sub-section (8a) of Section 89 of Act 1994 however gives wide powers to the State Government in the matter of transfers. It provides thus- " (8a) -Notwithstanding anything contained in sub-section (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad or from a Panchayat Samiti to a Zila Parishad, or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of or cancel only order of transfer made under sub-section (8) or the rule made thereunder. "
(3.) FROM the perusal of sub-section (8a) it is evident that the State Government possesses wide powers to transfer an employee. Now it is to be seen as to whether in view of powers provided in sub-section (8a) of section 89 of Act 1994 the State Government was justified in asking the employees to submit bond incorporating undertaking that they will not make request for transfer till the expiry of 10 years from their date of joining the service? Whether condition No. 3 of the bond is unconstitutional, unfair, unreasonable and opposed to public policy. It is well settled that an aggrieved person is entitled to judicial review if he can show that a decision of the public authority affects him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expects to be permitted to continue to enjoy either until he is given reasons for withdrawal and the opportunity to comment on such reasons. In L. I. C. of India vs. Consumer Education & Research Centre (1) their Lordships of the Supreme Court indicated thus- (Para 4) "it is therefore the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. This option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract. " In Shilpi Bose vs. State of Bihar (2) it was indicated by their Lordships of the Supreme Court that- " The courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department. " ;