OM PRAKASH LEELA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) LEARNED counsel for the respondents has raised preliminary objection that the impugned order Ex. P. 10 dated 26. 2. 2003 by which petitioner's transfer order dated 20. 2. 2003 was cancelled can be challenged by filing appeal before the Rajasthan Civil Services Appellate Tribunal and, therefore, when the statutory alternate remedy is available then the writ petition of the petitioner is not maintainable and here in this case, there exists no reason for exercising discretion to entertain the writ petition of the petitioner and there appears to be no reason for bye passing the statutory remedy.

(3.) I considered the rival submissions and perused the various Rules also. The sub-clause (1) of Rule 26 of the Rules of 1963 provides that appointment of engineer of all municipalities shall be made by the Government unless power of appointment in respect of any or all posts are delegated to some other authority. Learned counsel for the respondent admitted that the appointment to the promotional post of the petitioner was given by the State Government, which is provided under Rule 25 of the Rules of 1963. The Section 308 r/w sub-section (4) and (5) of Section 307 of the Act of 1959 makes it clear that the petitioner cannot be removed or dismissed from service by the Municipal Board or Council, as the case may be, Therefore, in view of the above facts that the petitioner was, admittedly, given appointment by the State Government on the post of Asstt. Engineer, which is permissible under law and can be removed from service only by the State Government, therefore, it cannot be said that the petitioner is not falling in the definition of Government servant given in sub- clause (c) of Section 2 of the Act of 1976. It is also relevant to mention here that the facts, which were considered in the judgment reported in 1981 WLN 523 (supra) and the Division Bench judgment of this court and in view of the reasonings given in the judgments of the Hon'ble Supreme Court reported in AIR 1984 SC 161 and AIR 1981 SC 53, it can be safely held that the petitioner is holding the civil post through not appointed in the Government Department, but still is a Government Servant and has effective alternate remedy, which is available to the petitioner under the Act of 1976 before the Rajasthan Civil Services Appellate Tribunal.