Krishan Kumar, J.@mdashThis special appeal is directed against the judgment dated 12.5.2004 rendered by the learned Single Judge in S.B. Civil Writ Petition No. 3877/2001.
2. The brief facts of the case are that the appellant was appointed as Class IV employee in the Office of the Chief Engineer, Command Area Development, Indira Gandhi, Nahar Pariyojna, Bikaner on 16.10.1989. Thereafter, he was promoted as Lower Division Clerk in accordance with Rule 7 of the Rajasthan Service Rules vide order dated 28.3.1998 and was assigned seniority at point 497. The appellant, having come to know that certain Lower Division Clerks have been demanded by the Commissioner, Commercial Taxation, Rajasthan, Jaipur from various departments for the permanent absorption, applied for the same. His application was forwarded by the Chief Engineer. IGNP on 13.3.2000 to the Commissioner, Commercial Taxation Department purporting to be in the subject matter of inter-department transfer, telling him specifically that the appellant wanted to be transferred to the post of Lower Division Clerk in the Commercial Taxation Department and his application for transfer was forwarded on the condition that if the appellant is transferred, his lien and seniority in the department shall be treated to have come to an end. This letter was respondent to by the Commissioner, Commercial Taxation. Again one letter was sent on 25.3.2000 by the Chief Engineer, IGNP. Thereafter the Commissioner (Adm.), Commercial Taxation Department wrote a letter dated 27.3.2000 to the Chief Engineer, IGNP, requesting him to relieve the appellant so as to enable him to join his department. The appellant was relieved vide order dated 31.3.2000 and joined the Office of the Dy. Commissioner (Admn.), Commercial Taxation Department vide his joining report dated 1.4.2000. Thereafter, the Dy. Secretary, Department of Personnel (A-2), Government of Rajasthan wrote a letter dated 13.9.2001 to the Dy. Commissioner (Admn.), Commercial Taxes, stating therein that the transfer of the appellant was illegal being contrary to the circular dated 15.7.2000 and there are no provisions in the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 (hereinafter referred to as "the Rules of 1999") for inter- department transfer. It was also asked as to who is responsible for this transfer and cancelled the transfer order. This order has been placed on record in the writ petition as Annexure- 11. The appellant has also taken the stand in the writ petition that the persons down below the appellant in the seniority in the Office of the Chief Engineer, IGNP were declared surplus and as many as 48 candidates have been declared surplus and they were absorbed in the other departments and if the appellant is sent back to the Office of the Chief Engineer he will be junior most person to them while the persons junior to him absorbed in other department will retain their original seniority. The appellant submitted a representation dated 21.9.2001 (Annexure-13) before the respondent No. 5 but no relief was granted. Thereafter, the writ petition was filed by the appellant with the following prayers :-
(1) It is, therefore, humbly prayed that the present writ petition may kindly be allowed and the order dated 13.9.2001 may kindly be quashed and set aside in this writ petition.
(2) That the respondent No. 1 & 5 may kindly be directed to treat the petitioner in the services of department of respondent No. 2 & 3.
3. The reply to the writ petition has been filed on behalf of the respondent Nos. 2 & 3 and no other respondents have filed reply to the writ petition.
4. The respondent Nos. 2 and 3 have not disputed the major part of the averments made in the writ petition and admitted that the petitioner was employed in the department of the respondent No. 4 on 16.10.1989 and vide order dated 28.3.1998, he was promoted on the post of LDC. On 10.9.1999, the provisional seniority list was issued by the Department of Irrigation, Government of Rajasthan whereby the petitioner has been assigned seniority at Sl. No. 497. This fact was also admitted that the petitioner made an application for his transfer in the Department of Commercial Taxes. The respondents have admitted that on 24.3.2000, inter- department transfer of the petitioner was made and he was allotted posting in the Office of Dy. Commissioner (admn.), Commercial Taxes, Sri Ganganagar with the specific condition that his lien shall be maintained in his parent department and if his performance is not found satisfactory, then, he will be repatriated to his parent department. This fact was also not disputed in the reply that vide letter dated 25.3.2000, the Executive Engineer, Department of irrigation, Bikaner communicated to the Commissioner, Commercial Taxes, Jaipur that since, the employee is temporary, therefore, he will not hold any lien in the Department of Irrigation and if his services are not found satisfactory, then, he will not be taken back in service in the Department of Irrigation. In response to the said letter, it was clarified by the Commissioner, Commercial Taxes, Jaipur that the conditions have been imposed according to the rules governing the inter-department transfer. It was also admitted by the respondents that the petitioner was relieved by the Department of Irrigation on 31.3.2000 and he was allowed to join the duty in the Department of Commercial Taxes on 1.4.2000. The respondent Nos. 2 and 3 have also not disputed the fact that the Dy. Secretary, Personnel (A-2) vide communication dated 13.9.2001 (Annexure-11) had directed the Dy. Commissioner (Admn.), Commercial Taxes, Sri Ganganagar to explain as to how the order of inter-department transfer has been passed whereas under the rules no such transfer can be effected and the Dy. Commissioner (Admn.) has been further directed to cancel the order and repatriate the petitioner to his parent department. The respondents have disputed the fact that the petitioner has been absorbed in the Department of the Commercial Taxes and averred that the petitioner holds his lien in his parent department and he can be repatriated in his parent department at any time. The respondents have admitted that the Department of Irrigation had declared number of persons holding the post of LDC as surplus and if the petitioner is repatriated to his parent department and declared surplus there, then, obviously, his absorption shall be made in other department in accordance with the rules. Thus, no prejudice will be caused to the petitioner, it was also averred by the respondents in their reply to the writ petition that the inter-department transfer was not permissible and therefore, the petitioner has been repatriated to his parent department. The representation made by the petitioner to the department of Personnel was dealt with by the Department in accordance with the law. Thus, the respondents prayed for dismissal of the writ petition.
5. After hearing both the parties, the learned Single Judge had dismissed the writ petition by judgment dated 12.5.2004, against which this appeal has been filed.
6. The main contention of the learned counsel for the appellant is that the learned Single Judge has relied upon Rule 7 of the Rajasthan Subordinate Offices & Ministerial Staff Rules, 1957 (hereinafter referred to as "the Rules of 1957") and has found that there was no occurrence of the Head of Department before the transfer and after coming into force of the Rules of 1999, no relief can be granted to the petitioner. Learned counsel for the appellant has also argued that the learned Single Judge has relied on Rule 7 (0 of the Rules of 1957, which were not in force after coming into force of the Rules of 1999 on 2.6.1999. He has drawn our attention to different provisions of Rules of 1999 wherein the inter-department transfer is permitted. He has cited before us Chapter Part VI Proviso (iii) to Sub-rule (1) to Rule 37 of the Rules of 1999 and argued that Annexure-11 has been issued by the Dy. Secretary, Department of Personnel (A-2) wherein it has been mentioned that no inter-department transfer is permissible under the new Rules of 1999. In compliance of this order, the petitioner was again transferred to his parent department. Therefore, he has submitted that Department of Personnel as well as Dy. Commissioner, Sales Tax Department, Ganganagar have wrongly interpreted the Rules of 1999. Proviso (iii) to Sub-rule (1) of Rule 37 of the Rules of 1999 and proviso to Sub-rule (2) of Rule 37 of the Rules of 1999 specifically provides provisions for inter-department transfer. Explanation (c) to Sub-rule (4) of Rule 39 of the Rules of 1999 also clearly indicates that there are provisions for inter-department transfer. He has drawn our attention towards the correspondence which was made between the Irrigation Department and the Commissioner, Commercial Taxes Department and argued that there was clear cut concurrence of both the Head of Departments. He has further argued that this is also admitted position that so many persons have been declared surplus in the parent department and now there is no vacant post is existing. Therefore, the petitioner will not be able to join the parent department. This fact was also stated to the Dy. Secretary, Department of Personnel (A-2), but no relief has been granted. Thus, the learned counsel for the appellant has stated that the appeal as well as the writ petition be allowed and the appellant may be continued to work in the Office of Commissioner, Commercial Taxes.
7. Learned counsel for the respondents has supported the judgment of the learned Single Judge and argued that after coming into force of the Rules of 1999, inter-department transfer is not permissible. He has drawn our attention to Annexure-8 and 10 to show that there was no complete concurrence from both the Head of the Departments and on the point of lien there were differences of opinion. Learned counsel for the respondents has argued that the Commissioner, Commercial Taxes Department vide Annexure-8 has clearly written that the lien of the appellant shall remain in his parent department and vide Annexure-10 it has been specifically written by the Irrigation Department that the appellant will not be taken back in his Department. As per the directions of Personnel Department, the appellant has been relieved from the Department of Commercial Taxes as inter- department transfer was not permissible and vide notification dated 15.7.2000, the Government had directed that no inter- department transfer be allowed. Therefore, no relief can be granted to the appellant.
8. We have considered the rival arguments made by both the learned counsel for the parties and gone through the judgment of the learned Single Judge. As far as legal position is concerned, the Rules of 1957 are not in force and new Rules of 1999 have come into force from 31.5.1999. Rule 45 of the Rules of 1999 specifically provides that "all Rules and orders in relating to matter covered by these rules stand superseded but any action taken under or in pursuance of such existing rules and orders shall be deemed to have been taken under these rules. Thus, it is clear that Rules of 1957 stand superseded after coming into force of the Rules of 1999 on 31.5.1999. It had been provided under Proviso (1) to Sub-rule (1) of Rule 7 of the Rules of 1957 that a post in any cadre may also be filed by transfer or a person holding a post in another Department corresponding to a post in the cadre concerned, with the concurrence of the Head of the Department. Therefore, transfer was also one of the modes of recruitment in previous Rules of 1957 but in the new Rules of 1999, this provision has not been incorporated. Rule 37 of the Rules of 1999 speaks about the seniority. Proviso (iii) to Sub- rule (1) of Rule 37 of the Rules of 1999 reads as follows :-
"notwithstanding anything contained to the contrary in substantive part of Rule 39, in case of a person holding a post mentioned in Schedule I in a Department and has been transferred from one Department to another on the corresponding post in the cadre concerned at his/her own request in accordance with the provisions of these Rules the inter-se seniority of such person vis-a-vis persons of the Department in which such person has been taken on transfer at his/her own request shall be determined from the date he/she joins the new Department on the post concerned;"
9. Proviso to Sub-rule (2) of Rule 37 of the Rules of 1999 further provides that "Provided that in case such persons are transferred by the Head of Department concerned from District/Division/Zone/Region/Range/Department to another District/Division/Zone/Region/Range/Department on the same post in accordance with the provisions contained in Proviso (iii) to Sub-rule (1) or on higher posts in accordance with the provisions of these Rules the official so transferred shall continue to retain his lien, seniority and right of promotion in his parent District/Division/Zone/Region/Range/Department and in case such persons attain the age of superannuation while working in another District/Division/Zone/Regions/Range/Department as the case may be, the vacancy caused by their retirement shall, for the purpose of appointment and promotion, be deemed to have occurred in their parent District/Division/Zone/Region/Range/Department, as the case may be."
10. Explanation (i) (c) to Sub-rule (4) of Rule 39 of the Rules of 1999 provides that "Regular recruitment for the purpose of this rule shall mean appointment by transfer after regular recruitment where the service Rules specifically permit."
11. Under Rule 37 of the Rules of 1999, the provision of transfer from one department to another department has been retained. The inter-se seniority of such person who has been transferred from one department to another department in which the person has been taken on transfer shall be determined from the date he joins the new Department on the post concerned. As regards lien, it has been provided in Proviso to Sub-rule (2) of Rule 37 of the Rules of 1999 that in case such persons are transferred by the Head of Department concerned from District/Division/Zone/Region/Range/Department to another District/Division/Zone/Region/Range/Department on the same post in accordance with the provisions contained in Proviso (iii) to Sub-rule (1) or on higher posts in accordance with the provisions of these Rules the official so transferred shall continue to retain his lien, seniority and right of promotion in his parent District/Division/Zone/Region/Range/Department and in case such persons attain the age of superannuation while working in another District/Division/Zone/ Regions/Range/Department, as the case may be, the vacancy caused by their retirement shall, for the purpose of appointment and promotion, be deemed to have occurred in their parent District/Division/Zone/Region/Range/Department, as the case may be.
12. From perusal of these rules, it cannot be said that the provisions of inter-department transfer have been taken away by the Rules of 1999.
13. Having considered the legal aspects of the matter, now we come to the factual aspects of the matter. From perusal of record, it is admitted that the appellant was initially employed in the department of Executive Engineer, Command Area Development, IGNP, Bikaner on 16.10.1989 and was promoted on the post of LDC vide order dated 28.3.1998 in conformity with the provisions of Rule 7 (3) of the Rules of 1957. The seniority list was published on 10.9.1999 and the appellant was assigned seniority at Sl. No. 497 in the cadre of LDC. He was not confirmed and was temporary. The appellant made an application to the respondent No. 4 for his transfer in the department of Commercial Taxes and vide order dated 24.3.2000, inter-department transfer of the appellant was made and he was allotted posting in the Department of Dy. Commissioner, Commercial Taxes, Sri Ganganagar. A specific condition was incorporated in the transfer order that the lien of the appellant shall be maintained in his parent department i.e. Department of Irrigation and further that if his performance is not found satisfactory, then, he will be repatriated to his parent department. Vide order dated 25.3.2000, the Executive Engineer, Department of Irrigation, Bikaner communicated to the Commissioner, Commercial Taxes, Jaipur that since, the employee is temporary, therefore, he will not hold any lien in the Department of Irrigation and if his services are not found satisfactory, then, he will not be taken back in service in the Department of Irrigation. In response to the said letter, it was clarified by the Commissioner, Commercial Taxes, Jaipur that the conditions have been imposed according to the rules governing the inter-department transfer published by the State Government (Annexure-7). The petitioner was taken on duty on the post of LDC in the Department of Commercial Taxes on 1.4.2000 and the same condition was reiterated in the order Annexure-5. The petitioner was relieved by the Department of Irrigation on 31.3.2000 and he was allowed to join the duty in the Department of Commercial Taxes on 1.4.2000. The Dy. Secretary, Personnel (A-2) vide communication dated 13.9.2001 (Annexure-11) has directed the Dy. Commissioner (Admn.) Commercial Taxes, Sri Ganganagar to explain as to how the order of inter-department transfer has been passed whereas under the rules no such transfer can be effected. The Dy. Commissioner (Admn.) has been further directed to cancel the order and repatriate the appellant to his parent department. This fact was denied that the appellant was absorbed in the Department of Commercial Taxes but it has been admitted by the respondents that the appellant holds his Hen in his parent department and he can be repatriated in his parent department at any time. It is the admitted position that the Department of Irrigation had declared number of person holding the post of LDC as surplus. If the appellant is repatriated to his parent department and declared surplus there, then, obviously, his absorption shall be made in other department in accordance with the rules and no prejudice will be caused to the appellant.
14. From perusal of the above facts, it is clear that the Department of Personnel has directed the Dy. Commissioner, Commercial Taxes to cancel the order of transfer and send the appellant back to his parent department. The reasons given by the Department of Personnel is that under the Rules of 1999 inter- department transfer is not permissible. One Circular No. P. 3(5) Karmik/K-2157 dated 15.7.2000 has also been issued by the Government but this stand of the Department of Personnel does not appear to be correct. Under the provisions of the Rules of 1999 the initial recruitment by transfer has been deleted but Proviso (in) to Sub-rule (1) as well as Proviso to Sub-rule (2) of Rule 37 of the Rules of 1999 still maintains the provisions of inter-department transfer. Looking to the provisions of the Rules of 1999, it cannot be said that the provisions of inter-department transfer has been abolished or under the Rules of 1999, there is no specific prohibition for inter-department transfer. Under Rule 37 and 39 of the Rules of 1999, the word "transfer under these rules" has been used by the rule making authority. Therefore, under the existing Rules of 1999, inter-department transfer is permissible and it has not been barred in toto.
15. In the present case, it has not been established that the appellant has been absorbed in the Department of Commercial Taxes. Although, the Executive Engineer, Department of irrigation, Bikaner had communicated to the Commissioner, Commercial Taxes, Jaipur vide letter dated 25.3.2000 that the appellant will not hold any lien in the Department of Irrigation and if his services are not found satisfactory, then, he will not be taken back in service in the Department of Irrigation. In response to the said letter, it was clarified by the Commissioner, Commercial Taxes, Jaipur that the conditions have been imposed according to the rules governing the inter- department transfer published by the State Government. From perusal of record, it is clear that the appellant was taken on duty on the post of LDC in the Department of Commercial Taxes with the condition that his lien will be held in his parent department. Therefore looking to the correspondence, both the Head of Departments were not agreeable to this condition. The Commissioner, Commercial Taxes has written that the lien of the appellant will be held in his parent department whereas the Executive Engineer (General), Office of the Chief Engineer, IGNP has written that since the employee is temporary he will not hold lien in his parent department. Further condition was that if the services of the appellant are not found satisfactory, then, he will not be taken back in service in the Department of Irrigation. In reply to this letter, it was written by the Commissioner, Commercial Taxes, Jaipur that the conditions imposed by their Department is as per rules and in future whatever will be done according to the rules. Thereafter, Department of Personnel (A-2) has written a letter dated 13.9.2001 to the Dy. Commissioner, (Admn.), Commercial Taxes, Sri Ganganagar to cancel the order of transfer. Although, Department of Personnel has not taken the correct view on this point. The letter sent by Department of Personnel (A-2) dated 13.9.2001 cannot be said to be as per rules but the appellant can still be repatriated to his parent department as his lien lies in his parent department. The provisions of the Rules of 1999 specifically provides that in case such persons are transferred by the Head of Department concerned from the Department to any other department on the same post in accordance with the provisions contained in proviso (iii) to Sub-rule (1) or on higher posts in accordance with the provisions of these Rules, the official so transferred shall continue to retain his lien, seniority and right of promotion in his parent Department. The Commissioner, Commercial Taxes has taken the appellant on transfer with the condition that his lien will be hold by his parent department and the conditions have been imposed as per rules. Therefore, the letter written by the Executive Engineer that since the appellant is temporary he will not hold any lien in his parent department cannot help the appellant as this conditions is also against the Rules of 1999. From the combined study of Rule 37 and Rule 39 of the Rules of 1999, it is clear that the lien of the appellant still exists in his parent department. No right is created to the appellant to hold the post in the Department of Commercial Taxation. The Commissioner, Commercial Taxes vide Annexure-7 has clearly stated that the condition has been imposed according to the rules and in future they will act according to the rules and with this condition, the appellant was taken on duty. The appellant has been repatriated to the concerned department, now he has no right to hold the post in the transferred department i.e. the Department of Commercial Taxes and his lien still lies in the parent department and there was no occurrence on this point of both the Head of the Departments. Although he was transferred by the Head of Department and also taken on duty by the other Head of Department but there was difference of opinion on the point of lien. Learned Single Judge has not committed any illegality while holding that there was no concurrence. It clearly-meant that there was difference of opinion in both the Head of Departments regarding keeping of the lien as per Rule 37 of the rules of 1999.
16. From the above discussions, it is clear that the appellant was not absorbed in the Department of Commercial Taxes and as per the spirit of the Rules of 1999, his lien lies in his parent department. He has no right to hold post in the transferred department i.e. Department of Commercial Taxes and he can be repatriated to his parent department according to law. Thus, we do not find any ground to interfere with the order passed by the learned Single Judge. Accordingly, the instant appeal is hereby dismissed.
17. However looking to the peculiar circumstances of the case and in the interest of justice, we direct that if the appellant is repatriated to his parent department and if he is declared surplus there due to non-existence of vacant posts, his absorption shall be made in other department by the State Government as per rules and his seniority in his parent department shall not be disturbed vis a vis the other employees of the parent department. Since, the appellant has worked for more then four years in the Department of Commercial Taxes and has acquired enough experience, therefore, the State Government and the Department of Commercial Taxes shall consider the case of appellant for his permanent absorption in the department of Commercial Taxes as per rules sympathetically.
