- (1.) THE petitioner was appointed on the post of Medical Officer and was posted at Government Hospital Banta (Pali) vide order dated 21-3-1991, which was subsequently amended and he was posted at Government Dispensary, Khairthal vide order dated April 1, 1991. THE petitioner reported for duty on April 2, 1991 at Alwar and by an order dated April 5, 1991 the non-petitioner was declared surplus from Khairthal and was ordered to be posted at Government Dispensary Sakat (Alwar) against a vacant post. Non-petitioner Dr. Dhanesh Kumar was already working at Government Dispensary Khairthal. THE Chief Medical & Health Officer, Alwar, issued an order on 6. 4. 1991 and directed the petitioner to assume charge at Khairthal. THE non-petitioner went on leave on that very day and filed a suit in the court of learned Munsiff & Judicial Magistrate Kishangarh-bas for declaration and permanent injunction, to declare the orders dated 1. 4. 1991 and 5. 4. 1991 as rull and void, and by permanent injunction not to relieve the non-petitioner from Khairthal. An application under Order 39 Rules 1 and 2 C. P. C. was also filed praying that he was not relieved on the date of filing of the suit and hence not be relieved till the disposal of the suit. Reply to this application was submitted by the petitioner denying the averments including submission that the non-petitioner has already been relieved on 6. 4. 1991. THE said application was decided on 27. 4. 1991 and a mandatory injunction was granted that the non-petitioner should not be relieved from Khairthal till the disposal of the suit and the respondents should not create any obstruction in his working and in releasing his salary and other benefits. Against this order, an appeal was preferred to the learned Additional District Judge, Kishangarh-bas and the said appeal was dismissed on 5. 10. 1991 on the ground that the petitioner has no right to file the appeal besides merit. THE appeal should have been filed by the concerned department.
(2.) THIS revision petition has been filed challenging the orders of the courts below that they have committed serious material irregularities and have acted contrary to the evidence on record and the judgments suffer from the errors apparent on the face of record. Learned Munsiff & Judicial Magistrate while deciding the application under Order 39 Rules 1 and 2 C. P. C. after considering the facts, has held that there is a prima facie case in favour of the plaintiff-non-petitioner since in accordance with the policy of the Government dated 28. 06. 1990. It has been mentioned that no Government Servant shall ordinarily be transferred unless he has been for two years at a particular place and since the non-petitioner has not completed the period of two years, he could not be transferred. It has further been observed that the initial appointment of the petitioner was for rural area for a period of 6 months and, therefore, his transfer to Khairthal, which is an urban area is not proper, more particularly when there was no vacant post at Khairthal. It has also been mentioned that according to the Election Commission, there was restriction on the transfers and inspite of the said restriction, the non-petitioner was transferred. The transfer of the non-petitioner was held not bona fide. It was further observed that the non-petitioner was not relieved on 6. 4. 1991 and a Gazetted Officer can be considered to be relieved only when he has given charge to some other person and on these basis it has been held that there is prima facie case in favour of the non-petitioner. On the point of balance of convenience, it was held that the transfer of the non-petitioner in the mid session would affect the education of the children who have to appear in their examinations and this would cause inconvenience to the non-petitioner. The petitioner has been posted for the first time and if he is posted to any other place, it would not cause any inconvenience to him. On the point of irreparable loss, it was held that the petitioner could be posted at any place and should be posted in the rural area and no loss would be sufferred by the petitioner if he is posted in the rural area. The fact that the children of the plaintiff/non-petitioner are studying and the transfer would create disturbance in their studies was also kept in view. Learned Additional District & Sessions Judge, Kishangarh-bas, after taking into consideration the various facts came to the conclusion that the State Government, Director, Medical & Health Services have not filed any appeal against the order passed under Order 39 Rules 1 and 2 C. P. C. It was further observed that the defendant-petitioner should have been posted in the rural area and the order dated 1. 4. 1991 is not in public interest and has been passed keeping in view the convenience of the defendant-petitioner since his wife was posted at Khairthal. It was observed that to keep the husband and wife at one place is not always possible and in these circumstances, the Government should post the defendant-petitioner in rural area for a period of six months. The transfer of the plaintiff/non-petitioner in a period lesser than 2 years will affect the public of Khairthal, who are influenced by him.
(3.) THE submission of Mr. Ashok Gaur, on behalf of the petitioner is that no one has a right to be posted at any particular place and it is for the employer to determine as to on which place an employee should be posted. THE guide-lines dated 28. 6. 1990 are only executive instructions and have no binding force. It has further been submitted that the trial court has acted with material irregularities in observing that the plaintiff was not relieved on April 6, 1991 and that the ban on transfers by the Election Commission was only in respect of those employees who were in the election duty. It has further been submitted that a wrong statement was made by the plaintiff-non-petitioner that he has school going children and their education will be disturbed. An objection was taken before the trial court, but on this objection no decision was given. Both the courts have acted with material irregularities. It has also been submitted that the learned Additional District Judge has wrongly held that in the absence of appeal by the State Government or the Director, Medical & Health Services who are affected by the transfer, the appeal preferred by the petitioner was not maintainable. The submission of Mr. Keshote is that this court should not interfere in the revisional jurisdiction even if the order passed by the trial court is not in accordance with law. I have considered the arguments of both the learned counsel. The Hon-'ble Supreme Court in Shilpi Bose V State of Bihar (1) has observed as under: "the Courts should not interfere with transfer orders with are 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 mala fide. 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 a 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. " ;