M. B. SHARMA, J - (1.) THIS case involves an important question as to whether the transfer of a Government servant to a similar post in the similar cadre is a service matter within the meaning of section 2 (f) (v) of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 (Act No. 34 of 1976) (for Short, the Act,) and as such the jurisdiction of the civil court is excluded under section 10 of the Act?
(2.) THE petitioner Ramcharan Das was appointed as Head Master, Government Secondary School, Ramjipur Kalan (Jaipur) in December 1984, which is said to be at a distance of 30 miles from Jaipur. He made a request to the Chief Minister for his transfer to Jaipur city on the ground that he is a chronic patient of dysentery and needs constant medical help at times. THE petitioner has got a widowed sister whose entire family of 10 members is dependent on him. His sister lives in Dinanathji ki gali at Jaipur. He was twice operated upon for 'harnia' and a similar request was made to the Education Minister and Director, Primary and Secondary Education. His request was ultimately accepted and under order dated July 15, 1986 he was transferred from Government Higher Secondary School Ramjipura Kalan to Government Higher Secondary School, Residency, Jaipur vice the non-petitioner No. 3 Manak Chand Agrawal, who was Head Master at the Residency School for last about 2-1/2 years. He assumed charge on July 19,1986 because the respondent No. 3 was not available and information was sent to the various authorities including a telegram on July 19, 1986 to the Director Primary and Secondary Education Government of Rajasthan Bikaner. THE respondent No. 3 was also sent information to send the key of the double lock and record relating to cash but the respondent No. 3 avoided giving of the key. He (petitioner) however started effectively functioning as Head Master of the Residency School since July 19,1986 and the salary for the month of July 1986 was also drawn by him. The respondent No. 3 filed a suit for injunction vide plaint Annr. 4 in which the petitioner was not impleaded as a party and only the State through Chief Secretary and the Director, Primary and Secondary Education, Rajasthan Bikaner were impleaded as defendants. An application for injunction under Order 39 Rules 1 and 2 CPC (Annr. 5) was also made in that suit and the court ordered issue of notice to the two defendants in the suit. The court held that service on the defendant-non-petitioner No. 2 Director, Primary and Secondary Education Rajasthan, Bikaner was not proper. The respondent No. 3 then gave out that he does not want any relief against him and the learned Munsif and Judicial Magistrate, Court No. 4, who was also looking after the work of the court, of Addl. Munsif and Judicial Magistrate, Court No. 2,jaipur under his order dated August 2, 1986, allowed the injunction application and issued temporary injunction to the effect that the respondent No. 3 should not be relieved from his present posting (Head Master at the Residency School) till further orders. Show cause notice was issued to the respondents and Mr. Satish Chandra Agrawal, appeared for respondent No. 3 and reply has been filed. I will revert to the question framed in the earlier part of this order, the contention of Mr. Singhvi, learned counsel for the petitioner is that the transfer is a condition of service and as such an appeal lies against the order of transfer under section 4 of the Act and the jurisdiction of the civil court is barred under section 10 of the Act. He has made a reference to the statement of objects and reasons and to the relevant provisions of the Act. A look at the statement of objects and reasons of the Act will show that: The proposal to Constitute Administrative Tribunals to decide service matters was under consideration of the State Government for a long time. Service matters are broadly of two types; One type relating to disciplinary proceedings and the other relating to the rules of recruitment and other conditions of service. So far as the disciplinary matters are concerned, the Classification, Control and Appeal Rules make provisions for Departmental appeal or review. As regards the other Service matters, the present practice is only of making a representation to the Government. In both the cases an aggrieved Government servant can approach the civil courts, by way of ordinary civil courts take a considerable time in deciding the service matters which is expensive and burden some to both the Government Servant and the Government. The suggestion of establishing Tribunal Administrative Tribunals has been from time to time considered by the Law Commission as well as by other eminent Authorities. In view of the need for satisfactory and early final decision and to stop a flood of litigation in the civil courts, the State Government has decided to constitute Administrative Tribunals to decide appeals from the order of competent authority and to bar the jurisdiction of the civil courts in service matters. These Tribunals would provide an independent forum for decision in service matter and would be bore economical both to the Government it Servant and the Government. It will also lesson the burden of judicial courts and enable them to concentrate on other judicial matters. " By referring to the above statements of objects and reasons, the contention of the learned counsel for the petitioner is that a mere look at the aforesaid statement of objects and reasons goes to show that the entire field of service matter is convened under the Act and it has excluded the jurisdiction of the civil court as in the disposal of cases the civil courts take time and it is expensive also. In support of his submission that the entire field of service matter is covered by the Act including the transfer of a Government servant, learned counsel for the petitioner has referred to State of Rajasthan Vs. Narendra Singh Verma (1 ). It was a case of adverse entry which is relevant in considering the case of a government servant for promotion. It was held that the order of communicating the adverse entry is an order affecting service condition to the disadvantage of the government servant. The contention of Mr. Singhvi, learned counsel for petitioner is that the transfer is a condition of service and will fall under section 2 (f) (v) of the Act. Section 2 (f) of the Act defines service matters which means any one or more than one of the matters mentioned therein relating to a government servant,. It is not the case of the learned counsel for the petitioner that the matter of transfer will fall in any of the first four clauses of section 2 (f) of the Act. According to him it is a matter which falls under clause 2 (f) (v) of the Act. Section 2 (f) of the Act reads as under: 2 (f) 'service Matter' means any one or more than one of the following matters relating to a Government servant - (i) Seniority; (ii) Promotion; (iii) Confirmation; (iv) Fixation of pay; (v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government Servant, otherwise than as a penalty; (vi) Cases of revision while officiating in a higher service grade or post to service grade or post otherwise than as a penalty; (vii) Withholding the pension or denying the maximum pension other wise as the penalty; (viii) Any other notified by the Government. A bare look at the above extracted provision will make it clear that before an order will fall under the aforesaid clause (v)it must be such effecting service condition to the disadvantage of the government servant. Unless an order is disadvantageous to the government servant, it will not fall under clause (v) even if it denies or varies pay, allowances and pension or other service conditions, though any order generally denying, varying the pay, allowances and pension is likely to act to the disadvantage of the government servant. Whether the same can be said about an order of transfer of a government servant on equal post? Article 309 of the Constitution of India empowers the appropriate legislature by an Act to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, and the Governor of a State has power to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature and any rules so made shall have the effect subject to the provisions of such Act. By virtue of the powers vested under Article 309 of the Constitution of India the Rajasthan Service Rules were framed in the year 1951. The preamble of the said Rules will show that the Rules were framed regarding the condition of service of persons appointed to the service in connection with the affairs of Rajasthan in exercise of the powers vested in him, the then Rajpramukh under Art. 309 of the Constitution. Rule 20 of the RSR reads as under: "20. Transfer of Government servant.- (a) Government may transfer a Government servant from one post to another provided that except (i) on account of inefficiency or mis-behaviour, or (ii) on his written request, a Government servant shall not be transferred substantively to or except in a case covered by rule 50 appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien or could hold a lien had his lien not been suspended under Rule 17. The contention of Mr. Singhvi, learned counsel for the petitioner is that rule 20 has been framed in exercise of the powers conferred under Article 309 of the Constitution and that the transfer of a government servant is a condition of service so far as the government servant in Rajasthan is concerned. Therefore, in a case of transfer of a government servant it will be a service matter under clause (v) of sec. 2 (f) of the Act and as such appeal lies to the Tribunal under section 4 of the Act and the jurisdiction of the civil court will be barred under section 10 of the Act. In support of his submission that clause (v) of section 2 (f) of the Act is a residuary clause, Mr. Singhvi learned counsel for the petitioner has referred to a decision in State of Rajasthan Vs. Dr. G. S. Bhandari (2 ). It was a case of compulsory retirement under rule 244 (2) of the RSR. The Tribunal on the objection raised before it in respect of jurisdiction to hear the appeal, overruled the same. The State came up in the writ petition to this court and this Court held that any wrong application of rule 244 (2) either on facts of a particular case or by misrepresentation of the rule or by misunderstanding or by mistake of law would be denial of a service condition within the meaning of sub-clause (v) of section 2 (f> of the Act and therefore would come within the definition of service matters as provided in sec. 2 (f) (v) of the Act against which an appeal lies to the Tribunal. According to Mr. Singhvi, though compulsory retirement has not been specifically provided as service matter in any of the clauses of section 2 (f), but it was still held to fall under clause 2 (f) of the Act and on parity of reasons, learned counsel contends that a transfer of a government servant on a similar post will far in clause (v) of section 2 (f) of the Act. In Lily Kurian V. Sr. Lawina (3) the learned Judges observed that; "the expression 'conditions of service' covers a wider range as explained by the Privy Council in N. W. F. Province V. Suraj Narain (2) which was approved by this Court in State of UP V. Babu Ram (3 ). These decisions and also a later decision of this Court in State of MP & ors. V. Shardul Singh (4) have made it clear that the expression 'conditions of service' as includes every thing from the stage of appointment to the stage of termination of service even beyond, and relates to matters pertaining to disciplinary action". (2) 75-IA-343 (3) (1961) 2 SCR-679 (4) (1970) 3 SCR 302. It may be stated that in view of the above referred to cases in the case of Lily Kurian (supra), they do not relate to the transfer of the government servant.
(3.) UNDER section 9 of the Civil Procedure Code the courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The law is settled that exclusion of the jurisdiction of a court cannot be readily inferred and there is presumption against exclusion of the civil court's jurisdiction. In Dhulabhai etc. V. State of Madhya Pradesh (4) after considering the law on the point in para No. 32 the Supreme Court laid down seven principles regarding the exclusion of the jurisdiction of the civil court The principle No. 7 laid down by their Lordships is that an exclusion of jurisdiction of the civil court is not readily to be inferred unless the conditions set down in principles Nos. 1 to 6 apply. In Musamai Imam Haider Bax Razvi V. Babri Govindbhai Ratanbhai (5) in para No. 7 their Lordships observed that it is necessary to bear in mind the important principle of construction which is that if statute purports to exclude the ordinary jurisdiction of a civil court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. As the Judicial Committee observed in Secretary of State V. Mask and Co. 67 Ind. Appeal 222 at page 236 = AIR 1940 PC 105 at 1 10. Again in case of Dewaji V. Ganpatlal (6) in para No. 12 it has been held that if the Legislature intends to oust the jurisdiction of civil courts, it must say so expressly or by necessary implication. A reference is made to State of Tamil Nadu v. Ramalinga Samigal Madam (7 ). Section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, came up for consideration in the context of the civil court jurisdiction. The said section provided that any order passed by the Government or other authority under the aforesaid Act in respect of matters to be determined for the purposes of the said Act shall subject only to any appeal or revision provided by or under the Act be final. Sub-section (2) of that section-provided that no such order shall be liable to be questioned in any court of law. Dhulabhai's case (supra) was considered in detail in the foresaid case and it was held that several other aspects like the scheme of the Act adequacy and sufficiency of remedies provided by it etc. will have to be considered to ascertain the precise intendment of the Legislature. It was held that the Settlement Officer has no power to do what civil court would normally do in a suit it is difficult to imply ouster of civil court's jurisdiction simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act. We will examine the scheme of the Act and more so section 10 of the Act to see whether expressly or impliedly the jurisdiction of the civil court is excluded in the matter of transfer of a government servant. Sec. 10 of the Act provides that no suit or other proceedings shall lie or be instituted in any civil court with respect to any matter arising under or provided for by the Act. In the earlier part of this order the definition of service matter as given in section 2 (f) of the Act has been extracted. As already stated earlier, even the case of the petitioner is not that the matter falls in any of the clauses (i) to (iv) of sec. 2 (f) of the Act and according to the petitioner it falls under clause (v) of the Act which has also been extracted earlier. The matter as to whether the transfer is only a condition of service came up for consideration before the Supreme Court in a latter decision in B. Varadha Rao V. State of Karnataka (8 ). Rule 19 of the Karnataka Civil Services (Classification Control & Appeal) Rules, 1957 reads as under: "19. Appeal against the order:- (1) Every member of any of the service mentioned in rule 5 shall be entitled to appeal to Government against the order passed by a subordinate authority which- (a) denies or varies to his disadvantage his pay, allowances, pension or other conditions of services as regulated by any order, rules or by agreement, or (b) interprets to his disadvantage the provisions of any such order, rules or agreement where by his pay, allowances, pension or other conditions of services as regulated by any order, rules or by agreement". There was a divergence of opinion among the Judges of the Karnataka High Court on the question as to whether transfer is a condition of service subject to appeal under rule 19 or not. One of the learned Judges took a view that 'transfer' is a condition of service and therefore the Government servant has a right of appeal against the order of transfer under rule 19. The other Judge-, Doda Kalegouda J. on the other hand, taking a view that the transfer is not a condition of service and only an incident of service, dismissed the writ petition. The matter went to the Supreme Court and the Supreme Court agreed with the view taken by Doda Kalegouda J that transfer is not a condition of service and is only an incident of service. The Supreme Court in para 4 held as under: "we agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the proceedings words 'denies or varies to his disadvantage his pay, allowances, pension, in rule 19 (1) (a) must be construed ejusdes generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority promotion, leave etc. It is well understood that transfer of a Govt, servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. " In clause (v) of section 2 (f) of the Act the words used are 'and other service conditions to the disadvantage of a Government servant. ' It can therefore be said on the basis of the above authority that other service conditions in clause (v) of section 2 (f) of the Act means that an order must be disadvantageous to the government servant. Transfer, as is well known, is an incident of service, and merely because a government servant is transferred to a similar post in the same cadre it does not alter any of the conditions of service to his disadvantage. The contention of Mr. Singhvi, learned counsel for the petitioner, is that there may be some order of transfer which may be disadvantageous and it may vary, allowances etc. and therefore if a view is taken by this Court that such of the transfers are not condition of service whereas others are then different kinds of transfers will have to be carved out. It has further been contended by him that so far as Karnataka CCA Rules are concerned it does not appear from the judgment of their lordships of the Supreme Court that there was any rule like rule 20 of the RSR which empowers the government to transfer a government servant from one post to another and therefore, the Supreme Court authority will not apply to the provisions of the Act and so far as the service matter within the meaning of section 2 (f) of the Act is concerned it will also include a case of transfer under clause (v) thereof. It is also contended by him that as appears from the aims and objects of the Act reproduced in the earlier part of this judgment, the entire field of service matter from the stage of appointment to the stage of termination of service and even beyond will be condition of service including the matter of transfer. In my opinion, because any matter can fall under clause (v) of section 2 (f) of the Act within the meaning of 'service matter' it is necessary that an order affecting a service condition must deny, vary to the disadvantage of the government otherwise it will not be a matter falling in other service conditions within the meaning of sections 2 (f) (v) of the Act. As already stated, the transfer is not such a matter which puts a government servant to the disadvantage and therefore merely because, rule 20 of the RSR empowers the transfer of a government servant it cannot be said that it is a condition of service and even if it is assumed to be a condition of service, before it can fall under clause 2 (f) (v) of the Act it must deny or vary pay, allowance and pension or act to the disadvantage of the government servant, which a transfer order does not, in my opinion. As already stated earlier, under section 10 of the Act the juristic tion of the civil court is only excluded with respect of any matter arising under or provided by the Act. Because, in my opinion the transfer is not such a matter which arises or provided by the Act the jurisdiction of the civil court cannot be excluded and by virtue of section 9 of Civil Procedure Code the matter will fall within the jurisdiction of the civil court. But having said above, I would not like to stop here. As observed by their Lordships transfer is a normal incident of service A government servant is liable to be transferred to a similar post in the same c re and it is a normal feature. No government servant can claim to remain at a particular place on a particular post. The courts much less a subordinate court generally will not interfere in the transfer matters of a government servant unless it can appear to it that the transfer power has been abused or that transfer has been made for a glated purpose with oblique motive and col ourable exercise of powers. It will be only in rarest of rare cases that such a case may be made out, and in a normal and route in transfer after a lapse of about 2\ years it may not be easy to make out a case that the transfer is in colourable exercise of the powers. Merely because the government has made the policy which is departed from in a case or two it cannot be said that it is a case of transfer in colourable exercise of the powers. The Supreme Court in B. Varadha Rao's case (supra) has referred to the quotations of their Lordships' earlier decisions to the following effect: "the norms enunciated by Govt, for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration then vesting of any immunity from transfer of the Govt, servants. " Therefore, as already stated above merely on the ground that the government instructions have been departed from, it will not be a ground to prima facie came to the conclusion that the transfer has been made in colourable exercise of the powers and not in public interest. In transfers there is an initial presumption that it has been made for administrative reasons. ;