Mahesh Chandra Sharma, J.
1. By way of this petition the petitioner has prayed to direct the respondent No. 2 to transfer the petitioner from Rajasthan Rajya Vidyut prasaran Nigam Limited, Jaipur to Jodhpur Vidyut Vitaran Nigam Limited, Jodhpur (for short 'JWNL').
2. Brief facts of the case according to the petitioner are that he had initially entered in the services of Rajasthan State Electricity Board (for short 'the RSEB') on 14.3.1977 on the post of Junior Engineer (I). He was further promoted to the post of Assistant Engineer on 3.3.1982 in the RSEB. The State Government decided to abolish RSEB and it divided into 5 Public Sector Companies Under Section 14 of the Rajasthan Power Sector Reforms Act, 1999 (for short 'the Act of 1999. The division of erstwhile RSEB into 5 companies took place after issuance of the Rajasthan Power Sector Reforms Transfer Scheme, 2000 (for short 'the Scheme 2000') and the aforesaid scheme was published in the gazette notification on 19.7.2000. As per Rule 6 of the Scheme of 2000, the personnel (employees) classified in various schedules were transferred to newly formed companies on account of various offices working under the heads and jurisdiction given in the schedule. On 19.7.2000 he was working as Assistant Engineer (O& M) at Ladnu and his office came under the jurisdiction of JWNL (Jodhpur Discom).A Representation Committee was constituted for transfer and absorption of the person working in the erstwhile RSEB. The concerned employees submitted representations to the Coordinator of the said Committee. After receipt of the representation of the concerned employee, the Head of the Department was to send his recommendation within 45 days and thereafter, Committee was to send the recommendation within 90days of the issuance of the order. Petitioner submitted his representation on 4.8.2000and opted for two companies i.e. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Jaipur (for short 'RRVPNL') and Jaipur Vidyut Vitaran Nigam Ltd., Jaipur (for short'JWNL'). At the time giving of representation, he was not aware about future aspects and his chances of promotion. Before consideration of his representation, he submitted an application on 11.11.2000 before respondent No. 2. However, Government (Energy Department) Issued notification dated 21.12.2000 wherein transfer and posting orders of different A.Ens were ordered with immediate effect. RRVPNL, Jaipur issued orders dt. 27.12.2000 in compliance thereof and he was transferred as A.En. (O & M), Ladnu to Assistant Engineer, Renwal. On 1.1.2001 he was relieved from Ladnu in the Jodhpur Discom. Immediately after his relieving, he submitted a representation to respondent No. 3 on 4.1.2001 in which he requested for continuation at Jodhpur. A copy of the application was also sent to the Coordinator. Representation Committee for cancellation of earlier option given by him but even after waiting for sufficient time, no order for cancellation of option was passed and the petitioner was not having any choice except to join at his new place of posting on 25.1.2001. He further stated that one person namely Mr. Ram Pratap Choudhary who was working as Assistant Engineer (E & M) had been absorbed and transferred to Jaipur Discom from Jodhpur Discom and his name is shown at S. No. 2 in the said list. On 3.3.2001 the State government issued another notification wherein Mr. Ram Pratap Choudhary has been allowed to continue at JWNL, Jodhpur in stead of JWNL, Jaipur. Ultimately, he sent a notice for demand of justice but with no result.
3. In rebuttal the respondents filed a detailed reply and controverted the material facts. The respondents in their reply have categorically stated that once petitioner has exhausted his option then he cannot make any prayer to cancel the option submitted by him after due date.
4. Learned Counsel for the petitioner has placed reliance of the Judgment passed in Manjushree Pathak v. Assam Industrial Development Corporation Limited and Ors. reported in : (2000)IILLJ1125SC , wherein Hon'ble Apex Court has held as under:
We are unable to understand why the Managing Director of the respondent Corporation did not accept the same although it was required to be accepted with immediate effect as per para 2 of the prescribed application form. No doubt, as per Clause 98.1 of the Scheme extracted above, the management had discretion to accept or reject the request from any employee for voluntary retirement viewing the organizational requirement and any other relevant facts but that does not mean that the respondent Corporation being an authority coming within the purview of Article 12 of the Constitution can abdicate its duty to act reasonably and fairly in exercise of discretion. It is strange as to why the Managing Director of the respondent Corporation, the competent authority to accept the application made for the voluntary retirement, did not act on it at all till 17.2.1996. He ought to have exercised his discretion as per Clause 8.1 if not immediately at least within a reasonable time. (Relevant portion of para 12).
16. The Division Bench of the High Court has failed to see that the Scheme conferred discretion on the Corporation under Clause 8.1 coupled with the duty to act judiciously when application for voluntary retirement was made by an employee. The said clause did not confer any unfettered discretion upon the Corporation to refuse the benefit of the Scheme to any employee, being an authority coming within the meaning of Article 12 of the Constitution. It was not open to the Managing Director of the respondent Corporation to act on extraneous consideration by issuing a show cause notice dated 15.2.1006/16.2.1996 so as to deprive the appellant of the benefit flowing from acceptance of her voluntary retirement. It is true that under Clause 8.1 of the Scheme,' discretion was available to the respondent Corporation but that discretion was not absolute. It was circumscribed by the terms mentioned in the said clause and it was to be exercised judiciously, In the case on hand the Managing Director of the Corporation has failed to act reasonably and fairly. He abdicated his duty by not exercising discretion at all in the light of the facts and circumstances of the case stated above in sufficient detail.
5. Learned Counsel for the petitioner also placed reliance on another Judgment delivered in case of Union of India and Anr. v. Wing Commander T. Parthasarathy, reported in (2001) 1 SC 158, wherein Hon'ble Apex Court in mid of para 9 has held that when the legal position is that much clear it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of a substantive right of a person can be denied except on the basis of any statutory provision or rule or regulation. There being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands.
6. I have heard learned Counsel for the parties and carefully gone through the entire material placed before me including the Judgments cited by learned Counsel for the petitioner.
7. A bare perusal of the facts of the aforesaid case reveals that the services of one Mr. Ram Pratap Choudhary, who was working as A.En. (E & M) had been absorbed and transferred to Jaipur Discom from Jodhpur Discom but the present petitioner has been deprived from the aforesaid benefit. In the scheme framed by the Government, nowhere puts a restriction for recorisideration of the cases of employees, if they wanted to change from one company to another company. In absence of any specific power to give second option or rethinking on the part of the employee, cannot deprive the petitioner for change of company. The fact clearly reveal that the petitioner has requested vide his application dated 11.11.2000 that he did not want to go to RRVVNL, Jaipur and he wanted to continue in Jodhpur Discom. In spite of request being made by the petitioner before issuance of order dated 21.11.2001 and 2 7.11.2001, the respondent did not consider request of the petitioner without any basis. The petitioner reiterated his request by writing letters/representations dated 4.1.2000 and 6.1.2001, yet the respondents did not pass order as was required under the Scheme. In this case it seems that the respondents have adopted pick and choose policy and they have given discriminatory treatment to the petitioner without considering his request for cancellation of the option given at initial stage. The other employees namely; Ram Pratap Choudhary has been shown favourable treatment and he has been allowed to continue at Jodhpur discom and his order of posting in Jodhpur Discom has been canceled but petitioner has been deprived of the same. It clearly goes to show that the petitioner has suffered on account of non-acceptance of his option to join in Jodhpur Discom. The chances of the promotion of the petitioner are better and bright in Jodhpur as is juniors have been promoted from the post of Assistant Engineers to Executive Engineers. In view of above, the writ petition is allowed accordingly. The respondent No. 2 is directed to transfer the services of the petitioner from Rajasthan Rajya Vidyut Prasaran Nigam Limited, Jaipur to Jodhpur Vidyut Vitaran Nigam Limited, Jodhpur, within a period of one month from the date of receipt a certified copy of this order. There shall be no order as to costs.