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Judgment
The petitioner has impugned the order dated 29.09.2019 (Annex.-4), passed by the respondent No.2 (Director, Board of Secondary Education, Bikaner), transferring him from Govt. Sr. Secondary School, Sanderao, Pali to Govt. Sr. Secondary School, Lordiyan, Jodhpur.
Mr. Chandra Prakash Trivedi, learned counsel for the petitioner stating the relevant facts, submitted that the petitioner- a principal, requested for her transfer from Govt. Sr. Secondary, School, Pali to Jodhpur, in furtherance of online application invited by the respondents.
According to petitioner, acting upon her request, an order dated 29.09.2019(Annex.-1), came to be passed and she was transferred from Sanderao, Pali to Govt. Girls Sr. Secondary School, Ratanada, Jodhpur.
Consequent to above order, the petitioner was relieved from Govt. Sr. Secondary School, Sanderao on 30.09.2019; whereafter, she had joined at Govt. Girls School, Ratanada, Jodhpur on 01.10.2019.
Interestingly another order of even date i.e. 29.09.2019 (Annex.-4) came to be passed by the respondent No.2, whereby the petitioner has been shown to be transferred from Govt. Sr. Secondary School, Sanderao to Govt. Sr. Secondary School, Lordiyan, Jodhpur.
Learned counsel for the petitioner, challenging the second order dated 29.09.2019 (Annex.-4), contended that subsequent order, purportedly passed on 29.09.2019, is ante-dated and the same has been issued after the first order dated 29.09.2019 stood executed and the petitioner had joined at Ratanada, Jodhupr.
In support of his argument aforesaid, Mr. Trivedi, pointed out that both the orders though shown to have been issued on 29.09.2019, did not contain any number or outward number.
It was also argued that a comparison of both the orders (Annex.-1 and 4) shows that first order of 29.09.2019 (Annex.-1) was issued acting upon petitioner's request that is why she has not been paid TA & DA; whereas in the second order of transfer dated 29.09.2019 (Annex.-4), the petitioner was held entitled for TA & DA.
Learned counsel argued that the second order of 29.09.2019 (Annex.-4) is illegal and unsustainable in view of the fact that the first order of transfer had been duly executed and acted upon.
Mr. Vishal Jangid, learned counsel for the respondents submitted that petitioner's transfer has been made in administrative exigency and that petitioner has been posted in District Jodhpur, as prayed by her.
Heard. Perused the material available on record.
A perusal of both the orders dated 29.09.2019 (Annex.1 and 4) leaves no room for ambiguity that the first order was issued pursuant to petitioner's request for transfer to her home district, which is evident from the fact that she has not been paid TA & DA; whereas second order dated 29.09.2019 (Annex.-4) cannot be said to be an order passed pursuant to petitioner's request, inasmuch as, the same provides for payment of TA & DA to the petitioner.
In considered opinion of this Court, subsequent order dated 29.09.2019 (Annex.-4) is unsustainable in the eye of law, as the first order of transfer dated 29.09.2019(Annex.-1) was duly acted upon - the petitioner stood relieved and she had joined on 01.10.2019.
Unquestionably, when the subsequent/second order dated 29.09.2019(Annex.4) was issued, the first order already stood duly executed. The petitioner did not remain at Govt. Sr. Secondary School, Sanderao so that she could be transferred to Lordiyan.
The second order (though dated 29.09.2029) cannot be believed to have been issued on 29.09.2019 for the simple reason that petitioner was relieved on 30.09.2019 and she had joined at Jodhpur on 30.09.2019, by that time respondent No.4 had no inkling of the fact that she has to join at Ratanada, Jodhpur - she offered her joining at a belated stage.
Without going into the issue, as to how two orders of the same date came to be issued, suffice it to observe that the subsequent order (Annex.-4) suffers from non application of mind. Even if it is assumed that both the orders (Annex.-1 and 4) were issued on the same date, the second order (Annex.-4) could not have been issued as the petitioner already stood transferred.
That apart, the petitioner had requested for her transfer at her home District. That being so, the second order (Annex.-4) transferring the petitioner from Govt. Sr. Secondary, School Sanderao, Pali to Govt. Sr. Secondary School, Lordiyan, Jodhpur that too also holding her entitled for TA & DA, cannot be said to be an order at her request, whereas the first order does not stipulate payment of TA & DA, which is a pointer of the fact that first order was issued pursuant to petitioner's request.
It is pertinent to note that this Court, while issuing notices on 18.10.2019, had stayed petitioner's transfer to Lordiyan, Jodhpur, which order is stoll in vogue and petitioner is working as Principal in Ratanada, Jodhpur.
As a result of the discussion aforesaid, this Court is of the considered view that the second order dated 29.09.2019 (Annex.-4) deserves to be quashed and set aside.
The petition is, thus, allowed. The order dated 29.09.2019 (Annex.-4) transferring the petitioner from Govt. Sr. Secondary School, Sanderao, Pali to Govt. Sr. Secondary School, Lordiyan, Jodhpur is quashed qua the petitioner.
Stay petition also stands disposed of accordingly.