1 S.B.CIVIL WRIT PETITION NO.4014/2008 Suresh Kumar Jusot v. State of Rajasthan & Ors. Date of Order :: 3rd December, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Mukesh Rajpurohit, for the petitioner. Mr. O.P.Boob, Additional Govt. Advocate. Mr. M.Mridul, Sr.Advocate assisted by Shri Ashok Choudhary, for the respondents. .... The Collector (Land Records), Udaipur, by an order dated 28.6.2008, transferred the petitioner, a Patwari, from Patwar Circle Titardi (Girwa) to Sagwada (Rishabhdev) vice respondent Shri Shankarlal. Challenge to the same is given by alleging violation of Rule 9 read with Rule 412 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (hereinafter referred to as “the Rules of 1957”). The contention of counsel for the petitioner is that the order dated 28.6.2008 was passed by the Collector under the instructions of the Government of Rajasthan and also the Commissioner, Udaipur Division, Udaipur, without arriving and recording his own satisfaction which is necessary to transfer a Patwari as per Rule 9 of the Rules of 1957. 2 A reply to the writ petition has been filed on behalf of the respondents stating therein that no specific instructions to transfer any individual were given by the Government of Rajasthan and whatever instructions given are general in nature and as such there was no role of the State Government or the Divisional Commissioner, Udaipur in transferring the petitioner under the order dated 28.6.2008. This Court by order dated 30.7.2008 directed the Collector (Land Records), Udaipur to make available the original notings and the entire record giving rise to the transfers of the Patwaris under the order impugned dated 28.6.2008, accordingly, the same is shown to the Court by learned Additional Government Advocate Shri O.P.Boob. The bulky record contains number of desires made by few members of the Rajasthan Legislative Assembly (MLAs) regarding transfers and postings of the Patwaris, however, without entering into the desirability of such desires, I am examining validity of the order impugned on basis of statutory requirements prescribed under Rules 9 and 412 of the Rules of 1957. Rules 9 and 412 of the Rules of 1957 read as follows:- ““9.Transfers.-(i)The Collector may transfer a Patwari from one circle or tehsil to another in his own district: but no transfer of a Patwari from one district to another 3 shall be made without the sanction of the Member, Land Records, Board of Revenue. Transfers from one division to another will be sanctioned by the Board of Revenue. The Sub-divisional Officers are also empowered to transfer a Patwari from one circle to another in the same tehsil or to another tehsil in their sub-division on sufficient grounds. Provided that if a Patwari is transferred out of the district on his own request he shall rank junior to existing Patwaris of that district. (ii)Transfers of patwaris should not be made unless the officer has satisfied himself that such transfer are necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of a Patwari. The Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charge to his successor. The Tehsildar may, with the approval of the Sub-Divisional Officer, get the incomplete record completed by employing extra staff and paying such staff by deducting the required amount from the salary of the negligent Patwari. Then unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action. 412.Administrative matters pertaining to Patwaris.-The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are ordinarily undesirable and should on no 4 count be made to suit the convenience of individuals. They can only be made under the conditions given in paragraph 9 and these conditions should be strictly observed. In order to avoid unnecessary transfers, Patwaris picked out for transfer, should, so far as possible be exchanged with one another rather than with other Patwaris. Transfers by way of punishment are not contemplated by law. Moreover, a transfer is hardly a substitute for punishment.” As per Rules 9 and 412 of the Rules of 1957 the Collector can transfer a Patwari only on being satisfied that the same is necessary in interest of work or to fill up vacancies created due to various reasons. In normal course a Patwari should not be subjected to transfer just for unsatisfactory work or for his conduct or to accommodate some individual. This Court in Inder Singh & Anr. v. State of Rajasthan & Ors., reported in 2007(1) RLW 737, while examining effect of non-compliance of the Rules 9 and 412 of the Rules of 1957, while making transfer of a Patwari, held as follows:- “(23)According to Rule 9 of the Rules of 1957 a Patwari from one Tehsil to another Tehsil in the same district can be transferred by the Collector on being satisfied that such transfer is necessary in interest of efficiency of work or to fill up the vacancies created by long leave, 5 resignation, dismissal, suspension or transfer of a Patwari. Sub-rule(ii) of Rule 9 of the Rules of 1957 further provides that the Patwari on going transfer before getting relieved shall have to complete all his record and clear all his work in arrear. The arrears of work may further be completed by employing extra staff in the event of transfer of a Patwari. The requirements of Rule 9 of the Rules of 1957 to transfer a Patwari are further asserted and reiterated by Rule 412 of the Rules of 1957 to the extent that a transfer of Patwari is ordinarily undesirable and should not be made to suit convenience of individuals. The provisions of Rule 9 read with Rule 412 of the Rules of 1957 make it clear that the transfer of a Patwari is not a normal incidence of service but is an exception. The legislature chose to prescribe statutory guidelines for transfers of Patwaris looking to their special status in land revenue and land record operations. (24)A Patwari is a basic administrative unit in administrative hierarchy of government that is dealing with the land revenue, land records and settlement of land. A Patwari is required to discharge quite important statutory duties as prescribed under Chapter- III of the Rules of 1957. A Patwari is a living link between the government and the land holders. The State of Rajasthan, as other parts of the country, is also dominated by farmers and the largest part of the population is involved in profession of agriculture. A Patwari is required to keep living relations with the agriculturists and 6 also required to keep absolute vigilance with revenue records to protect rights of the State and also to maintain harmony and peace among land holders and to avoid unwanted land disputes in his patwar circle. Looking to important statutory duties of a Patwari the law framers provide a special procedure for effecting their transfers. The administrative officers must follow the statutory requirements prescribed to transfer a Patwari. The compliance of the provisions of Rule 9 read with Rule 412 of the Rules of 1957, while transferring a Patwari is mandatory. The Division Bench while affirming the law laid down in the case of Inder Singh (supra) in DBCivil Special Appeal (Writs) No.871/2006, Kishan Singh v. State of Rajasthan & Ors., decided on 24.1.2007, held as follows:- “It is well settled that ordinarily, the Court does not exercise power of judicial review in the matter of transfer, which ordinarily does not affect the civil servants prejudicially in legal sense. One well known exception to this rule is where the transfer is contrary to statute. In the present case, the transfer of patwaries are shown to be governed by statutory provision. The rules framed in exercise of powers conferred under Land Revenue Act are piece of subordinate legislation and are part of statute itself. Under the rules, power to transfer patwaries have been conferred specifically on Collector 7 of District, where transfers are to be made from one Patwar Circle to another within the District. The circumstances and manner in which a patwari is to be transferred have also been prescribed by the rules. The importance of continuity of patwari at the place in the interest of maintenance of land records is too obviously reflected in provision that even when he is transferred to other circle, the transfer orders does not become effective until the concerned patwari has completed the record in hand. Where a statute provides the authority who has to act on conditions under which he has to act, such action can be taken only by such authority and on fulfilment of conditions under which he has been authorised to act, is a principle so well ingrained in system that it needs hardly any elaboration. We are, therefore, of the opinion that it is not a case of merely allowing the restoration of illegality but allowing the illegal action taken by the Collector at the behest of Ministry of Revenue which had no business to act in derogation of law. If the rule of law prevails in respect of citizen, it also governs the action of the Government authorities and the persons in power. No one is above law howsoever high he may be. The law does not permits any other authority than prescribed under the rules to usurp that power and subject the statutory authority to act under their dictates.” In view of legal position discussed in the cases referred above, it is settled that the 8 provisions of Rule 9 read with Rule 412 of the Rules of 1957 are mandatory in nature and their non- compliance make an order of transfer relating to Patwari bad. As per Rule 9(2) of the Rules of 1957 the competent officer i.e. the Collector is required to satisfy himself regarding necessity of the transfer of a Patwari. Before effecting transfer of a Patwari the Collector should satisfy himself that such transfer is necessary in the interest of efficiency of work or to fill up vacancies created by long leave, resignation, dismissal, suspension or transfer of a Patwari. In the present case, on minute examination of the entire record, I do not find any noting made by the Collector regarding his satisfaction that warranted transfer of the petitioner. It is true that certain general instructions are given by the Government relating to transfers of Patwaris and those may be quite relevant to assess and maintain efficiency of the administration, but while adhering the administrative guidelines given by the Government the Collector is under an obligation to adhere the statutory requirements for transfer of a Patwari. The Collector (Land Records) nowhere recorded his satisfaction to arrive at the conclusion regarding necessity of the transfers. Recording of such satisfaction is all the more necessary in view of the provisions of Rule 412 of the Rules of 1957. As per the rule aforesaid the transfer of a Patwari is an 9 exception and can be made only under the conditions given in Rule 9 of the Rules. The conditions and checks given in Rules 9 and 412 of the Rules of 1957 as a matter of fact reflects an effort to secure efficiency of administration in Land Revenue system. In the instant matter, it appears that the Collector has either simply acted upon the administrative instructions given by the State Government or just tried to accommodate the Patwaris as per the desires made by the MLAs. The non-compliance of the Rules 9 and 412 of the Rules of 1957 is apparent and, thus, the order impugned is bad. Accordingly, this petition for writ is allowed. The order impugned dated 28.6.2008, passed by the Collector (Land Records), Udaipur to the extent it relates to transfer of the petitioner and the respondent No.3 stands quashed. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.