MAHENDRA KUMAR Vs. DHANESH KUMAR SHARMA

JUDGEMENT

(1.) THE petitioner was appointed on the post of Medical Officer and was posted at Government Hospital Banta (Pali) vide order dated 21-3-1991, which was subsequently amended and he was posted at Government Dispensary, Khairthal vide order dated April 1, 1991. THE petitioner reported for duty on April 2, 1991 at Alwar and by an order dated April 5, 1991 the non-petitioner was declared surplus from Khairthal and was ordered to be posted at Government Dispensary Sakat (Alwar) against a vacant post. Non-petitioner Dr. Dhanesh Kumar was already working at Government Dispensary Khairthal. THE Chief Medical & Health Officer, Alwar, issued an order on 6. 4. 1991 and directed the petitioner to assume charge at Khairthal. THE non-petitioner went on leave on that very day and filed a suit in the court of learned Munsiff & Judicial Magistrate Kishangarh-bas for declaration and permanent injunction, to declare the orders dated 1. 4. 1991 and 5. 4. 1991 as rull and void, and by permanent injunction not to relieve the non-petitioner from Khairthal. An application under Order 39 Rules 1 and 2 C. P. C. was also filed praying that he was not relieved on the date of filing of the suit and hence not be relieved till the disposal of the suit. Reply to this application was submitted by the petitioner denying the averments including submission that the non-petitioner has already been relieved on 6. 4. 1991. THE said application was decided on 27. 4. 1991 and a mandatory injunction was granted that the non-petitioner should not be relieved from Khairthal till the disposal of the suit and the respondents should not create any obstruction in his working and in releasing his salary and other benefits. Against this order, an appeal was preferred to the learned Additional District Judge, Kishangarh-bas and the said appeal was dismissed on 5. 10. 1991 on the ground that the petitioner has no right to file the appeal besides merit. THE appeal should have been filed by the concerned department.

(2.) THIS revision petition has been filed challenging the orders of the courts below that they have committed serious material irregularities and have acted contrary to the evidence on record and the judgments suffer from the errors apparent on the face of record.

(3.) THE submission of Mr. Ashok Gaur, on behalf of the petitioner is that no one has a right to be posted at any particular place and it is for the employer to determine as to on which place an employee should be posted. THE guide-lines dated 28. 6. 1990 are only executive instructions and have no binding force. It has further been submitted that the trial court has acted with material irregularities in observing that the plaintiff was not relieved on April 6, 1991 and that the ban on transfers by the Election Commission was only in respect of those employees who were in the election duty. It has further been submitted that a wrong statement was made by the plaintiff-non-petitioner that he has school going children and their education will be disturbed. An objection was taken before the trial court, but on this objection no decision was given. Both the courts have acted with material irregularities. It has also been submitted that the learned Additional District Judge has wrongly held that in the absence of appeal by the State Government or the Director, Medical & Health Services who are affected by the transfer, the appeal preferred by the petitioner was not maintainable.