JASRAJ CHOPRA, J. - (1.) THE petitioner Dr. Ashok Kumar has filed this writ petition against his transfer order Annexure-1 dated 23. 1. 1990, which was passed during the election process, when there was a complete ban on transfers as per Annexure-2 dated 1. 1. 1990.
(2.) THE contention of the petitioner is that the person who passed the transfer order Annexurer-1 was not authorised to pass such transfer order and secondly, this transfer has been made in order to accommodats respondent No. 3 Dr. Anand Raj Kalla, under some political pressure at his behest. He has submitted that it is a mid-term transfer and therefore it is against the Govt. and public policy. According to the petitioner, the above action is in colourable exercise of the powers by transferring and disturbing the petitioner at least during the period when there was complete ban on transfers and further it was a mid term transfer and therefore, if it is allowed to stand, it will result in allowing such abuse of powers with a malafide intention. No return has been filed on behalf of the respondents No. 1 and 2. However respondent No. 3 Shri Anand Raj Kalla has joined the issue with the petitioner. The respondent No. 3 has raised a preliminary objection that the order of transfer falls within the definition of sec. 2 (f) of the Rajasthan Civil Services Appellate Tribunal Act, 1976 (for short 'the Act'), which provides for an alternative afficacious remedy and, therefore, the petitioner should not have approached this Court directly without availing the alternative remedy. He has further submitted that it is a case of 'suggestio falsi' and 'supressiovaeri' in as much as Annexure-2 is only a news item published in the Rajasthan Patrika as regards ban on transfers. It was further submitted that the alleged notification dated 31. 12. 1989 being administrative instructions / executive orders does not creat any right much less a legal right in favour of the petitioner and as the same cannot be enforced by way of writ petition, this writ petition is not maintainable. If at all the petitioner was aggrieved by this transferee should have made a representation to the Government. According to respondent No. 3, Dr. Ashok Kumar is posted at Jodhpur since 1981. He has created his vested interest here. He was transferred twice or thrice from Jodhpur but he managed those transfers and remained at Jodhpur. He is running his private Clinic named as 'ashok Diagonestic Clinic', Opposite Umed Hospital, Jodhpur and, therefore, the petitioner's transfer is in the interest of the Govt. The respondent No. 3 has further submitted that he is doing M. D. under the Head of the Department of Pathology and he has already finished his one year. According to him, on account of his posting at Ajmer, his registration of M. D, was cancelled, which was ultimately revived and it was because of this, that he has been transferred back to Jodhpur. According to respondent No. 3, this transfer order has been issued by the Government and, therefore, no concurrence of any body was necessary. He has already joined on 27. 1. 1990 and that fact has been suppressed by the petitioner. It is alleged that this Court in Dr. J. N. Vyas V. State of Rajasthan (1) has held that the transfer policy is not justiceable. In this case, it was ordered on 30. 1. 1990 by this Court that in the meantime, the status quo as it exists to 'day shall be maintained. As on 30. 1. 1990 the petitioner was not relieved and respondent No. 3 Shri Anand Raj Kalla has already joined and, therefore, both the parties were allowed to continue till the election process was over. I have head Mr. R. K. Charan, the learned counsel appearing for the petitioner, Mr. Hemant Choudhary, the learned Assistant Govt. Advocate and Mr. Kamal Joshi, the learned counsel for respondent No. 3. Mr. R. K. Charan, the learned counsel appearing for the petitioner has contended that now when the election process is over, the order Annexure-1 dated 23. 1. 1990 under which the petitioner has been transferred cannot be sustained and, therefore, the State Govt. should be directed to pass any appropriate orders. On the other hand, Mr. Hemant Choudhary appearing for the State has submitted that now the election process is over and so, the Stategovt. is free to act in the manner it likes. However, it was contended on behalf of respondent No. 3 that the order Annexure-1 should be executed now.
(3.) IT was submitted by Mr. R. K. Charan, the learned counsel appearing for the petitioner that the Stategovt. has further imposed a ban on transfer and, therefore, the order Annexure-1 which has been passed during the election process cannot be sustained on account of a further ban on transfers and the petitioner cannot be relieved from Jodhpur. He has filed copy of that Circular which has been issued recently by the State Govt. imposing ban on transfers. Mr. Kamal Joshi, the learned counsel appearing for respondent No. 3 has submitted that if the petitioner wants to seek any relief under the garb of that Circular dated March 7,1990 whereby the State Govt. has imposed ban on transfers, then the petitioner should have amended this writ petition. Mr. Joshi has further argued that the guidelines laid down in Circulars of Government for transfer of Govt. servants being administrative and executive instructions are not justiceable. In this respect, he has placed reliance on a decision of the Allahabad High Court in Bhagwan Das Bhatia V. State (2) wherein a Division Bench of the Allahabad High Court observed as follows: "the Circulars of the Govt. referred to by the learned counsel only lay down guiding principles and do not create any legal right in favour of any Govt. servant. Transfer is an exigency of service and any departure from the guiding principles laid down in the circular letter does not raise any legal ground justifying interference by the Court in exercise of its powers under Art. 226 of the Constitution more so when it is found that the departure was not arbitrary or malafide. " In Ghisulal V. The Union of India (3) M. C. Jain, J. (as he then was) observed that the tenure policy is meant for the officers empowered to effect transfers. A guide-line is provided in it for the competent authorities, to effect transfers. Such instructions and policies do not confer a right on the Airman and they cannot claim as a matter of right for its enforcement. If any competent authority in disregard of the Govt. instructions issues transfer orders, then the remedy is to approach the higher authority and make a representation in that behalf. But, he will have no enforceable right and cannot seek queshing of the transfer orders. The tenure policy in the present case as stated in Annexures R-l, R-2 and R. 3. is not justiceable and enforceable at law as it does not confer any legal-right on the petitioner. In Shanti Kumari V. Regional Dy. Director, Health Services, Patna (4) their lordships of the Supreme Court have held that transfer of a Govt. servant may be due to ex gencies of service or due to administrative reasons and the Court cannot interfere in such matters. In that case, petitioner Shanti Kumari was transferred to a place other than home district. It was alleged that this transfer is in contravention of State Govt's directions. The petitioner failed to file any representation to the State Govt. The High Court declined to interfere and the decision of the High Court was upheld by their lordships of the Sup- - reme Court. ;