DR. D.P. Punia vs State and Another

Heard learned Counsel for the parties. The matter, was argued at quite some length. The substance of the arguments proceeded, on the basis of selection, of the respondent No. 2, on the post of Principal being wrong, on various grounds like; expiry of penal, selection exercise having not been undertaken for filling vacancies in the year 2008, and so on, and so forth, and then, it was sought to be contended, that since selection and appointment of the private respondent, as Principal, Medical College, Bikaner is bad, the petitioner should not, and could not have been transferred. Then, other arguments were raised about the existence of vacancies for the post of Professor in Radiotherapy at Bikaner, and that vacancy has got been managed to be filled up, by transferring one Shri R.K. Chaudhari, from Ajmer and thus, showing absence of availability of post of Professor in Radiotherapy at Bikaner, and then, stand has been taken by the respondent, to the effect, that regular Director will be brought in `Tulsi Research Centre, which is a claim sought to be put forward by the State, beyond its own powers. Thus, it was contended, that as a matter of fact, all efforts in consolidated manner, rather to ensure, firstly, that private respondent is appointed and continues as Principal at Bikaner, and the petitioner is shunted out to Jodhpur, notwithstanding the fact, that less than 2 years, remained in the retirement of the appellant, at which juncture, according to the Government policy, the incumbent should not be transfered.

Thus, it was contended, that the transfer of the petitioner-appellant is bad, and it was then submitted, that the learned Single Judge, has proceeded to take the stand, taken by the State respondent, to justify the administrative exigency, on the face value, which is a total simulation projected by the State and the detailed reasons given, by the appellant petitioner, which are writ large from the record, if properly considered, do show, that the exigency projected by the State is merely a rouse, thus the impugned order is liable to be set aside.

We have considered the submissions, and find, that in the relief clause of the writ petition, the selection of the private respondent as Principal is not under challenge. The learned Counsel, tried to point out from Annexure/2, that thereby the entire order Annexure/1 was cancelled, and since the selection was made vide Annexure/1 only, the private respondent cannot be said to have been continuing to remain selected as Principal.

In our view, this contention, cannot be sustained, in as much as, Annexure/1 is in two parts, one selecting the private respondent as Principal, and other part posted/appointed him as Principal, SN Medical College, Jodhpur. Then reading of the Annexure/2 shows, that by the order dated 26.6.2008, posting and transferring the private respondent, as Principal at Jodhpur, was cancelled. But then, the selection on the post of Principal was never recalled or cancelled. In that view of the matter, in absence of challenge to the selection of the private respondent as Principal, big portion of the arguments, based on validity of selection of private respondent, as Principal, goes away.

Then, coming to the transfer being not in administrative exigency, and being for other considerations, it will suffice to say, that it is established law, that the existence of an administrative exigency cannot be examined, under Article 226 jurisdiction, on the parameters, and to the extent, learned Counsel for the appellant wants us to examine. The matter was argued before us, as if it was a regular appeal against the transfer order, which, we are afraid, it is not.

Hon`ble Supreme Court, has repeatedly cautioned, against interference in the transfer matters, and the present case also seeks only to challenge the transfer of the appellant from Bikaner to Jodhpur.

In our view, learned Single Judge, has rightly declined to interfere, in favour of the appellant.

The appeal thus has no force, and is hereby dismissed, summarily.