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Judgment
The matter comes up on application bearing Nos.1/2019, 3/2019 filed under Article 226(3) of the Constitution of India for vacation of the interim
order dated 24.09.2019 and on application bearing No.4/2019 filed under Order-1 Rule-10 CPC read with Article 226 of the Constitution of India for
deleting the applicant as party respondent No.4.
(D.B. SAW/1485/2019 and 2 more have been filed in this matter. Please refer the same for further orders)
It is contended by learned counsels for the applicants who have preferred application Nos. 1/2019 and 3/2019 that petitioners have obtained stay
order dated 24.09.2019 without impleading applicants as party. Applicants were necessary party as the petitioners had challenged the order of transfer
and applicants were transferred in place of the posting of petitioners. It is contended that in the Writ Petition itself in Para No.3, petitioners have
pleaded that incumbent principal who are standing at serial Nos. 14, 22, 2, 16, 18, 19, 21, 6 and 7 in the impugned transfer order dated 13.09.2019 have
been transferred in place of the petitioners at their sole desire.
It is also contended that applicants have been transferred in place of the petitioners, it was incumbent upon the petitioners to have impleaded the
present applicants and consequently, order dated 24.09.2019 has been passed without giving opportunity of hearing to the applicants, thus the stay
order deserves to be vacated under Article 226 (3) of the Constitution of India.
It is contended that against the interim order dated 24.09.2019, applicants have preferred D.B. Civil Special Appeal and the same was decided by
the Division Bench vide judgment dated 05.11.2019 and directions were given to implead the applicants as party in the Writ Petition and they were
given liberty to file an application under Article 226 (3) of the Constitution of India seeking vacation of the stay order passed by learned Single Judge.
The Division Bench further left it at discretion of learned Single Judge to either decide the application seeking vacation of stay order or the main Writ
Petition.
It is also contended that the impugned transfer order has been passed as a request was made by the applicants for their (D.B. SAW/1485/2019 and
2 more have been filed in this matter. Please refer the same for further orders) transfers. As transfer was made on request, applicants were not given
any transfer allowance.
Learned counsel for the non-applicant has vehemently opposed the application. It is contended that transfer of writ petitioners was done at behest
of Rita Choudhary, Ex MLA, Mandawa, Legislative Constituency Mandawa and thus, was not on ground of administrative exigencies. It is also
contended that applicants have been transferred back to Jhunjhunu and thus they should have no grievance against the stay order which has been
granted in favour of the writ petitioners.
In rejoinder, learned counsel for the applicant contends that Rita Choudhary became MLA in November, 2019, the impugned transfer order was
issued on 13.09.2019 and Rita Choudhary had no role to play in issuance of the transfer order. It is also contended that though some of the applicants
have been re- transferred to Jhunjhunu but in the transfer order it is specifically mentioned that the transfer order would be subject to the decision in
S.B. Civil Writ Petition No.16105/2019.
Application bearing No.4/2019 has been filed by respondent No.4- Rita Choudhary for deletion of her name from the array of respondents.
It is contended by learned counsel appearing for Rita Choudhary that Rita Choudhary was elected as an MLA in November, 2019 and transfer
order of petitioners was not at her behest. No relief is sought against the applicant. The transfer order was issued on 13.09.2019, which is much prior
to the election of the applicant as member of Legislative Assembly, hence the allegation that transfer orders were issued at her behest is untrue.
(D.B. SAW/1485/2019 and 2 more have been filed in this matter. Please refer the same for further orders)
It is also contended that as many as 350 persons were transferred from one place to another on the ground of administrative exigencies and
transfer of respondents was at their own request, hence, name of the applicant from the array of respondents be deleted.
Learned counsel for the writ petitioners have opposed the prayer. It is contended that transfer of petitioners was at behest of respondent No.4,
hence she has been rightly impleaded as respondent.
I have considered the contentions.
As far as application bearing Nos. 1/2019 and 3/2019 are concerned, writ petitioners in Para No.3 of their petition have specifically pleaded that
the applicants were transferred in place of the petitioners, thus it was necessary for the petitioners to implead the applicants. Petitioners have obtained
stay order without impleading applicants, who were necessary party thus, order was passed in absence of the applicants, which deserves to be set
aside. The averment that it was at behest of respondent No.4, is also not substantiated because respondent No.4 was not an MLA at the time when
the impugned order was passed. Petitioners have remained at Jhunjhunu for about 80% of their total service years' and in administrative exigencies as
many as 350 persons were transferred, therefore, the stay order dated 24.09.2019 deserves to be and is accordingly vacated. Application bearing
Nos.1/2019 and 3/2019 are accordingly allowed.
As far as application bearing No.4/2019 is concerned, no prayer is made in the Writ Petition against the respondent No.4. Respondent No.4 was
not holding any post at the time when transfer order was issued. Respondent No.4 became an MLA in (D.B. SAW/1485/2019 and 2 more have been
filed in this matter. Please refer the same for further orders) November, 2019, hence she is not a necessary party in the Writ Petition. Application filed
on behalf of respondent No.4, therefore, deserves to be and is accordingly allowed. Name of respondent No.4 be struck of from the array of
respondents.
Learned counsel for the petitioners is directed to file amended cause title within a period of four weeks.