Munishwar Nath Bhandari, J. - (1.) BY this writ petition, petitioner challenges the orders dated 16.11.2004 and 4.3.2005 with a further prayer that the petitioner be allowed to transpose from the post of Junior Engineer (Diploma Holders) (Civil) to the post of Junior Engineer (Degree Holder) (Mechanical). The contention of the learned Counsel for the petitioner is that after obtaining the qualification of Diploma in Civil Engineering, he was appointed on the post of Junior Engineer (Civil). During the course of service as JEN, the petitioner sought permission to undergo the course known as IME which is otherwise equivalent to Degree Course in Mechanical Engineering. After obtaining qualification, petitioner made a request to the respondents that in view of the provisions of Rule 6(4) of the Rajasthan Engineering Subordinate Service(Public Health Branch) Rules, 1967 (hereinafter referred to as 'the Rules of 1967') he should be allowed to be placed in the stream of Degree Holders. However, the said application of the petitioner was then not accepted by the respondents vide the impugned orders. The respondents had taken a view that an employee appointed as JEN (Civil) cannot be transferred to the post of JEN (Mechanical) inasmuch as Civil Engineering and Mechanical Engineering fall in two different streams, therefore, an employee recruited in the stream of Civil Engineer cannot be transferred to the stream of Mechanical Engineer. The contention of the learned Counsel for the petitioner is that similarly placed employees, like the petitioner were allowed transfer from one stream to another, therefore, the case of the petitioner cannot be dealt with in discrimination. In that regard, specific name has been given in page 8 of the writ petition, therefore, the only ground raised during the course of arguments is that the petitioner should be ordered to be given same treatment as was given in the case of Prayag Raj Vijay and Kishan Lal Khatri and Others and whatever conditions imposed on those employees while transferring them from one stream to another, petitioner's case may also be governed by similarly situated persons and thus, the 3 petitioner should be allowed transfer from the Civil stream to Mechanical stream.
(2.) LEARNED Counsel for the respondents submits that as per Rule 6(4) of the Rules, 1967, the transfer of Diploma Holder is permissible to the post of Degree Holder, but the same has to be in same stream and, in the present case, since the petitioner was appointed as Diploma Holder in Civil stream, thus he cannot be transferred to the stream of Mechanical Engineering and it is on that ground alone that the request of the petitioner was rejected. Learned Counsel for the respondents further submits that so far as the extension of similar benefit as otherwise being claimed by the petitioner is concerned, those employees had foregone their benefits of seniority etc., hence as an exception, some of the employees were permitted transfer from one stream to another. It is further submitted that pursuant to Annexure -R/1, the Department has taken a decision not to permit or transfer from one stream to another stream, i.e., from Civil to Mechanical or Mechanical to Civil, thus it was prayed that the prayer made by the petitioner should not be accepted. After hearing the contentions of the learned Counsel for the parties and on perusal of the record, I find that the request of the petitioner for his transfer from Civil to Mechanical stream was precisely turned down on the ground that no such transfers are permissible, in view of Rule 6(4) of the Rules, 1967. However, the learned Counsel for the respondents could not satisfy this Court as to why such transfers were permitted in regard to many employees who have been named in page 8 of the writ petition and even reply does not give any explanation in that regard. Thus, an affidavit was ordered to be filed by the respondents. However, perusal of the affidavit filed pursuant to Court's order also shows that other than explanation for one employee Prayag Raj Vijay, the respondents have not given any explanation in regard to other employees. According to the learned Counsel for the petitioner, he has named only few employees, otherwise there are many such employees who have been permitted transfer from Civil stream to Mechanical and Mechanical to Civil, thereby no exception should be carved out in the case of the petitioner. Since no satisfactory reply has been by the learned Counsel for the respondents, it becomes clear that the respondents were permitting transfer from one stream to another without any exception, may be on the terms and conditions that such employee will forego benefits of seniority. However, if this argument is accepted, then, the respondents should have given the same treatment to the petitioner when a request for transfer from one stream to another was made. It is quite surprising that during the pendency of the writ petition, the respondents issued a circular (Annexure R -1) which otherwise seems to be nothing but a mere paper formality, inasmuch as if no such transfer, as prayed by the learned Counsel for the petitioner, is permissible, then, the respondents were under an obligation to recall all such orders which were passed previously, more so when the language of Rue 6(4) is not so clear so as to denying such transfers. In view of the above, the learned Counsel for the respondents could not seriously oppose to the prayer of the petitioner regarding transfer from one stream to another other than the prayer that the respondents be given liberty to take actions in regard to all other cases where such transposition was permitted and if such action is taken, then, even if the petitioner is allowed to be transferred from stream to another, similar action be permitted even in regard to the case of the petitioner. It is, in other words, a submission that the petitioner can be transferred from one stream to another, i.e., from Civil to Mechanical, but such transfers would be governed by similar terms and conditions as were made admissible in regard to all the employees who were then extended similar benefits.
(3.) IN view of the above discussion, the writ petition is allowed, the respondents are directed to allow the transfer of petitioner from Civil stream to Mechanical stream, but the petitioner would not be entitled for the benefit other than what has been made admissible to Prayag Raj Vijay and many others named in the petition. In other words, the case of the transfer of the petitioner would be governed and be treated in same manner as of similarly situated persons. However, it would be open for the respondents to take actions in the matter if they intend to disallow the transfer to employees from one stream to another. It is made clear that if such action is taken, then it may be first initiated in regard to all those employees who were permitted such transfers from one stream to another and in that case petitioner may also be dealt similarly.;