KUMAR, J. - (1.) THIS special appeal is directed against the judgment dated 12. 5. 2004 rendered by the learned Single Judge in S. B. Civil Writ Petition No. 3877/2001.
(2.) THE brief facts of the case are that the appellant was appointed as Class IV employee in the Office of the Chief Engineer, Command Area Development, Indira Gandhi, Nahar Pariyojna, Bikaner on 16. 10. 1989. THEreafter, he was promoted as Lower Division Clerk in accordance with Rule 7 of the Rajasthan Service Rules vide order dated 28. 3. 1998 and was assigned seniority at point 497. THE appellant, having come to know that certain Lower Division Clerks have been demanded by the Commissioner, Commercial Taxation, Rajasthan, Jaipur from various departments for the permanent absorption, applied for the same. His application was forwarded by the Chief Engineer. IGNP on 13. 3. 2000 to the Commissioner, Commercial Taxation Department purporting to be in the subject matter of inter-department transfer, telling him specifically that the appellant wanted to be transferred to the post of Lower Division Clerk in the Commercial Taxation Department and his application for transfer was forwarded on the condition that if the appellant is transferred, his lien and seniority in the department shall be treated to have come to an end. This letter was respondent to by the Commissioner, Commercial Taxation. Again one letter was sent on 25. 3. 2000 by the Chief Engineer, IGNP. THEreafter the Commissioner (Adm.), Commercial Taxation Department wrote a letter dated 27. 3. 2000 to the Chief Engineer, IGNP, requesting him to relieve the appellant so as to enable him to join his department. THE appellant was relieved vide order dated 31. 3. 2000 and joined the Office of the Dy. Commissioner (Admn.), Commercial Taxation Department vide his joining report dated 1. 4. 2000. THEreafter, the Dy. Secretary, Department of Personnel (A-2), Government of Rajasthan wrote a letter dated 13. 9. 2001 to the Dy. Commissioner (Admn.), Commercial Taxes, stating therein that the transfer of the appellant was illegal being contrary to the circular dated 15. 7. 2000 and there are no provisions in the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 (hereinafter referred to as "the Rules of 1999") for inter- department transfer. It was also asked as to who is responsible for this transfer and cancelled the transfer order. This order has been placed on record in the writ petition as Annexure-11. THE appellant has also taken the stand in the writ petition that the persons down below the appellant in the seniority in the Office of the Chief Engineer, IGNP were declared surplus and as many as 48 candidates have been declared surplus and they were absorbed in the other departments and if the appellant is sent back to the Office of the Chief Engineer he will be junior most person to them while the persons junior to him absorbed in other department will retain their original seniority. THE appellant submitted a representation dated 21. 9. 2001 (Annexure-13) before the respondent No. 5 but no relief was granted. THEreafter, the writ petition was filed by the appellant with the following prayers :- (1) It is, therefore, humbly prayed that the present writ petition may kindly be allowed and the order dated 13. 9. 2001 may kindly be quashed and set aside in this writ petition. (2) That the respondent No. 1 & 5 may kindly be directed to treat the petitioner in the services of department of respondent No. 2 & 3. The reply to the writ petition has been filed on behalf of the respondent Nos. 2 & 3 and no other respondents have filed reply to the writ petition. The respondent Nos. 2 and 3 have not disputed the major part of the averments made in the writ petition and admitted that the petitioner was employed in the department of the respondent No. 4 on 16. 10. 1989 and vide order dated 28. 3. 1998, he was promoted on the post of LDC. On 10. 9. 1999, the provisional seniority list was issued by the Department of Irrigation, Government of Rajasthan whereby the petitioner has been assigned seniority at Sl. No. 497. This fact was also admitted that the petitioner made an application for his transfer in the Department of Commercial Taxes. The respondents have admitted that on 24. 3. 2000, inter- department transfer of the petitioner was made and he was allotted posting in the Office of Dy. Commissioner (admn.), Commercial Taxes, Sri Ganganagar with the specific condition that his lien shall be maintained in his parent department and if his performance is not found satisfactory, then, he will be repatriated to his parent department. This fact was also not disputed in the reply that vide letter dated 25. 3. 2000, the Executive Engineer, Department of irrigation, Bikaner communicated to the Commissioner, Commercial Taxes, Jaipur that since, the employee is temporary, therefore, he will not hold any lien in the Department of Irrigation and if his services are not found satisfactory, then, he will not be taken back in service in the Department of Irrigation. In response to the said letter, it was clarified by the Commissioner, Commercial Taxes, Jaipur that the conditions have been imposed according to the rules governing the inter-department transfer. It was also admitted by the respondents that the petitioner was relieved by the Department of Irrigation on 31. 3. 2000 and he was allowed to join the duty in the Department of Commercial Taxes on 1. 4. 2000. The respondent Nos. 2 and 3 have also not disputed the fact that the Dy. Secretary, Personnel (A-2) vide communication dated 13. 9. 2001 (Annexure-11) had directed the Dy. Commissioner (Admn.), Commercial Taxes, Sri Ganganagar to explain as to how the order of inter-department transfer has been passed whereas under the rules no such transfer can be effected and the Dy. Commissioner (Admn.) has been further directed to cancel the order and repatriate the petitioner to his parent department. The respondents have disputed the fact that the petitioner has been absorbed in the Department of the Commercial Taxes and averred that the petitioner holds his lien in his parent department and he can be repatriated in his parent department at any time. The respondents have admitted that the Department of Irrigation had declared number of persons holding the post of LDC as surplus and if the petitioner is repatriated to his parent department and declared surplus there, then, obviously, his absorption shall be made in other department in accordance with the rules. Thus, no prejudice will be caused to the petitioner. It was also averred by the respondents in their reply to the writ petition that the inter-department transfer was not permissible and therefore, the petitioner has been repatriated to his parent department. The representation made by the petitioner to the department of Personnel was dealt with by the Department in accordance with the law. Thus, the respondents prayed for dismissal of the writ petition. After hearing both the parties, the learned Single Judge had dismissed the writ petition by judgment dated 12. 5. 2004, against which this appeal has been filed. The main contention of the learned counsel for the appellant is that the learned Single Judge has relied upon Rule 7 of the Rajasthan Subordinate Offices & Ministerial Staff Rules, 1957 (hereinafter referred to as "the Rules of 1957") and has found that there was no occurrence of the Head of Department before the transfer and after coming into force of the Rules of 1999, no relief can be granted to the petitioner. Learned counsel for the appellant has also argued that the learned Single Judge has relied on Rule 7 (1) of the Rules of 1957, which were not in force after coming into force of the Rules of 1999 on 2. 6. 1999. He has drawn our attention to different provisions of Rules of 1999 wherein the inter-department transfer is permitted. He has cited before us Chapter Part VI Proviso (iii) to sub-rule (1) to Rule 37 of the Rules of 1999 and argued that Annexure-11 has been issued by the Dy. Secretary, Department of Personnel (A-2) wherein it has been mentioned that no inter-department transfer is permissible under the new Rules of 1999. In compliance of this order, the petitioner was again transferred to his parent department. Therefore, he has submitted that Department of Personnel as well as Dy. Commissioner, Sales Tax Department, Ganganagar have wrongly interpreted the Rules of 1999. Proviso (iii) to sub-rule (1) of Rule 37 of the Rules of 1999 and proviso to sub-rule (2) of Rule 37 of the Rules of 1999 specifically provides provisions for inter-department transfer. Explanation (c) to sub-rule (4) of Rule 39 of the Rules of 1999 also clearly indicates that there are provisions for inter-department transfer. He has drawn our attention towards the correspondence which was made between the Irrigation Department and the Commissioner, Commercial Taxes Department and argued that there was clear cut concurrence of both the Head of Departments. He has further argued that this is also admitted position that so many persons have been declared surplus in the parent department and now there is no vacant post is existing. Therefore, the petitioner will not be able to join the parent department. This fact was also stated to the Dy. Secretary, Department of Personnel (A-2), but no relief has been granted. Thus, the learned counsel for the appellant has stated that the appeal as well as the writ petition be allowed and the appellant may be continued to work in the Office of Commissioner, Commercial Taxes.
(3.) LEARNED counsel for the respondents has supported the judgment of the learned Single Judge and argued that after coming into force of the Rules of 1999, inter-department transfer is not permissible. He has drawn our attention to Annexure-8 and 10 to show that there was no complete concurrence from both the Head of the Departments and on the point of lien there were differences of opinion. LEARNED counsel for the respondents has argued that the Commissioner, Commercial Taxes Department vide Annexure-8 has clearly written that the lien of the appellant shall remain in his parent department and vide Annexure-10 it has been specifically written by the Irrigation Department that the appellant will not be taken back in his Department. As per the directions of Personnel Department, the appellant has been relieved from the Department of Commercial Taxes as inter- department transfer was not permissible and vide notification dated 15. 7. 2000, the Government had directed that no inter- department transfer be allowed. Therefore, no relief can be granted to the appellant. We have considered the rival arguments made by both the learned counsel for the parties and gone through the judgment of the learned Single Judge. As far as legal position is concerned, the Rules of 1957 are not in force and new Rules of 1999 have come into force from 31. 5. 1999. Rule 45 of the Rules of 1999 specifically provides that "all Rules and orders in relating to matter covered by these rules stand superseded but any action taken under or in pursuance of such existing rules and orders shall be deemed to have been taken under these rules. Thus, it is clear that Rules of 1957 stand superseded after coming into force of the Rules of 1999 on 31. 5. 1999. It had been provided under Proviso (1) to sub-rule (1) of Rule 7 of the Rules of 1957 that a post in any cadre may also be filed by transfer or a person holding a post in another Department corresponding to a post in the cadre concerned, with the concurrence of the Head of the Department. Therefore, transfer was also one of the modes of recruitment in previous Rules of 1957 but in the new Rules of 1999, this provision has not been incorporated. Rule 37 of the Rules of 1999 speaks about the seniority. Proviso (iii) to sub- rule (1) of Rule 37 of the Rules of 1999 reads as follows :- " notwithstanding anything contained to the contrary in substantive part of Rule 39, in case of a person holding a post mentioned in Schedule I in a Department and has been transferred from one Department to another on the corresponding post in the cadre concerned at his/her own request in accordance with the provisions of these Rules the inter-se seniority of such person vis-a-vis persons of the Department in which such person has been taken on transfer at his/her own request shall be determined from the date he/she joins the new Department on the post concerned;" Proviso to sub-rule (2) of Rule 37 of the Rules of 1999 further provides that "provided that in case such persons are transferred by the Head of Department concerned from District/division/zone/region/range/department to another District/division/zone/region/range/department on the same post in accordance with the provisions contained in Proviso (iii) to sub-rule (1) or on higher posts in accordance with the provisions of these Rules the official so transferred shall continue to retain his lien, seniority and right of promotion in his parent District/division/zone/region/range/department and in case such persons attain the age of superannuation while working in another District/division/zone/regions/range/department, as the case may be, the vacancy caused by their retirement shall, for the purpose of appointment and promotion, be deemed to have occurred in their parent District/division/zone/region/range/department, as the case may be. " ;