Sukha Ram vs State Of Rajasthan And Ors

The facts of the present case are copious, yet simple; but have been made complex by the petitioner.

The petitioner, who was working as Lecturer (Chemistry) in District Institute of Education and Training (hereinafter referred to as the

‘DIET’) at Kuchaman City, Nagaur, was transferred to Ugarpura, Nagaur, vide order dated 27.05.2018. By the same order, the respondent

No.4 â€" Gulab Choudhary was transferred from Ugarpura, Kuchaman City, Nagaur to DIET, Nagaur.

The petitioner has not placed such order on record and has simply placed the corresponding order passed by the Rajasthan Civil Services Appellate

Tribunal (hereinafter referred to as the ‘Tribunal’) dated 14.06.2018, whereby the said order dated 27.05.2018 had been quashed.

The order dated 27.05.2018 was quashed only for want of payment of TA. Thus, a direction to pay travelling allowance as per the Rajasthan

Travelling Allowance Rules, 1971 was given. It would not be out of place to reproduce the relevant para of the order dated 14.06.2018, which reads

thus :

“A copy of this order may be sent by Registrar, RSCAT, Jaipur to the Principal Secretary of the Respondent Department to ensure compliance

with mandatory provisions of Rajasthan Travelling Allowance Rules, 1971 and Rajasthan Civil Service (Joining Time) Rules, 1981, in issuance of

transfer orders so as to obviate unnecessary litigation.â€​

In furtherance of the order passed by the learned Tribunal, a consequential order dated 26.07.2018, maintaining petitioner’s transfer to the same

place came to be passed, with the direction to pay travelling allowance as per the Rules of 1971.

The petitioner has intentionally not placed even the above referred order dated 26.07.2018 on record, and has simply placed the order of the

Tribunal dated 31.08.2018, whereby the said order came to be set aside, with a liberty to the respondents to pass a fresh order. With a view to keep

the relevant observation made by the learned Tribunal handy, relevant part thereof is reproduced hereinfra :

“ 26.07.2018 (-7)

2005

â€​

In furtherance of the above order dated 31.08.2018, the Director, Secondary Education, Bikaner passed an order dated 11.01.2019 and reiterated

the order dated 27.05.2018 inter alia observing that petitioner did not possess the requisite qualification to remain at DIET-Nagaur.

The petitioner yet again challenged the order dated 11.01.2019 passed by the respondent No.2, by way of an appeal being Appeal No.82/2019. Said

appeal came to be disposed by the Tribunal, vide its order dated 13.12.2019, and interim order granted by it was vacated.

While rejecting the petitioner’s appeal, the Tribunal below observed that the petitioner having acquired the qualification namely M.A.

(Education) on 26.09.2018, was not eligible to be appointed in a DIET College in light of the judgment dated 16.12.2016 passed by Division Bench of

this Court in Shyam Sundar Solanki & Anr. Vs. State of Rajasthan & Ors.

Calling in question, the order dated 13.12.2019, passed by the Tribunal, the petitioner has preferred the present writ petition.

Mr. Siddiqui, learned counsel for the petitioner, submitted that the Tribunal has erred in holding the petitioner to be ineligible and treating his

educational qualification to be not equivalent to M.Ed. while observing that petitioner has failed to secure 55% marks.

Learned counsel invited Court’s attention towards petitioner’s mark-sheet dated 26.09.2018 and contended that a bare look thereof shows

that the petitioner has secured 594 out of 900 marks and thus, his percentage are 66%, naturally above 55%; the petitioner was, therefore, entitled to

be appointed/continued in DIET College. He further argued that many candidates who failed to secure minimum 55% marks are still continuing as

lecturers.

An argument was also advanced by Mr. Siddiqui that the respondents so also the Tribunal was not justified in relating back the petitioner’s

educational qualification to the first transfer order dated 27.05.2018, which nowhere stipulated that the petitioner is not eligible to be appointed on the

said post. He argued that on the date of passing of the order impugned, i.e. on 11.01.2019, the petitioner had acquired requisite eligibility and thus, he

ought to have been kept in DIET, Nagaur.

Mr. Vinit Sandhyaya and Mr. Vishal Jangid, learned counsel appearing for the respondents, at the outset submitted that the Tribunal has erred in

holding the petitioner not qualified to be appointed as a Lecturer in DIET, so far as his percentages (more than 55%) are concerned.

They, however, maintained that the question of equivalence or otherwise eligibility of M.A. (Education), for the post of Lecturer in DIET be left to

be decided by the competent authority.

On appraisal of the facts noted above, this Court is of the firm view that the Tribunal has erred in recording a finding that the petitioner has failed

to secure minimum 55% marks in his M.A. (Education).

Be that as it may, this Court is called upon to examine the correctness of the order dated 11.01.2019, which was subject matter of the appeal

(82/2019), before the Tribunal in which the order impugned dated 13.12.2019 has been passed.

In this regard, it is pertinent to be reminded of the fact that the first order, which the petitioner had challenged before the Tribunal was, the order

dated 27.05.2018. The order dated 27.05.2018 was challenged on solitary ground of non-payment of TA/DA. Petitioner’s such argument was

accepted; the order dated 27.05.2018 was set aside.

After setting aside of the order dated 27.05.2018, the respondent No.2 had passed an order dated 26.07.2018 and allowed payment of TA to the

petitioner.

In considered opinion of this Court, not only the petitioner’s grievance stood redressed, but also his right to challenge the order dated

27.05.2018 stood freezed.

Indisputably, the petitioner has not laid any challenge to the order dated 14.06.2018. As such the same had attained finality and petitioner has thus,

acquiesced with order dated 14.06.2018, by which petitioner was held entitled for Travelling Allowance.

The petitioner’s challenge to the order dated 26.07.2018 in his subsequent appeal (Appeal No.2747/2018) was not at all permissible.

Be that as it may, hearing the aforesaid appeal, the learned Tribunal has quashed the order dated 26.07.2018, while directing the respondents to

post the petitioner keeping in mind the Rules of 2005 and the Division Bench’s judgment rendered in Shyam Sunder Solanki’s case (supra).

At this juncture, the respondents after considering the petitioner’s educational qualification, passed the order dated 11.01.2019 and held that on

27.05.2018, petitioner did not possess the requisite educational qualification and thus, reiterated his transfer from DIET, Kuchaman City to Ugarpura,

Nagaur.

In the appeal thereagainst, vide impugned order dated 13.12.2019, the Tribunal has held the petitioner ineligible to be appointed as a Lecturer in

DIET.

In considered opinion of this Court, the order of the Tribunal to the extent it has observed that the petitioner has not secured 55% marks is an error

apparent on the face of record. The petitioner has secured 66% marks â€" more than requisite 55%, subject of course to validity/veracity of the

photo-stat copy of the mark-sheet he has produced.

In the facts obtaining in the present case, without making any observation as to whether the petitioner’s educational qualification is equivalent

or valid for the purposes of providing him appointment on the post of Lecturer, DIET and leaving it to be decided by the respondents, this Court is of

the opinion that the entire controversy has to be examined in the context of first transfer order dated 27.05.2018 and the facts as existed on the date of

issuance of such order.

On 27.05.2018, indubitably, the petitioner could not have been posted in a DIET College, having regard to the judgment of this Court dated

16.12.2016 in the case of Shyam Sunder Solanki (supra).

This Court is not much convinced with the argument advanced by Mr. Siddiqui that since the order dated 27.05.2018 did not mention the factum of

petitioner not being qualified to continue as a Lecturer in DIET, his eligibility cannot be gone into .

Having regard to the Rules of 2005 and the Division Bench judgment in the case of Shyam Sunder Solanki (supra), irrespective of the fact that

whether the petitioner’s transfer was for the reason of his not being eligible or otherwise, the respondents were required to ascertain his eligibility

while posting him as a Lecturer in DIET College.

This Court is also not much impressed with the argument of learned counsel for the petitioner that many other Lecturers are still continuing in

DIET Colleges; despite the fact that they are not having requisite qualification namely M.Ed. with 55% marks.

So far as petitioner’s case is concerned, on the date of his transfer i.e. 27.05.2018, he was not eligible to continue in DIET College. That apart,

after passing of the first order by the Tribunal, whereby a direction to make payment of TA/DA was issued, the petitioner’s grievance in essence

stood redressed. The petitioner’s challenge to subsequent orders passed by the respondent No.2 is nothing, but an attempt to somehow thwart his

transfer from DIET College.

May be, that subsequently the petitioner has acquired the requisite qualification, but his eligibility has to be reckoned on the date of first transfer

order dated 27.05.2018. On which date, the petitioner indisputably did not acquire even his M.A. (Education) and thus, was not entitled to be

posted/continued in DIET College.

As a discussion foregoing, this Court does not find any substance in the petitioner’s writ petition. Hence, the same is hereby dismissed.

Needless to observe that the respondent No.4, who was earlier ordered to be transferred to DIET, Kuchaman, but later asked to join at Ugarpura

in view of the interim order passed in the present writ petition will be permitted to join in such Institution, within a period of one week from today. The

fact that she has joined at the transferred place, Ugarpura would have no bearing, as the instant writ petition has been dismissed by the order instant.

The stay application also stands dismissed.