1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> :: O R D E R :: (1) S.B. CIVIL WRIT PETITION NO.6108/2007. (Ram Singh Vs. State of Rajasthan & Ors.) .. (2) S.B. CIVIL WRIT PETITION NO.6109/2007. (Khet Singh Vs. State of Rajasthan & Anr.) .. (3) S.B. CIVIL WRIT PETITION NO.6111/2007. (Hardan Janni Vs. State of Rajasthan & Anr.) .. (4) S.B. CIVIL WRIT PETITION NO.6112/2007. (Bhagirath Ram Vs. State of Rajasthan & Anr.) .. (5) S.B. CIVIL WRIT PETITION NO.6115/2007. (Kanhaiya Lal Vs. State of Rajasthan & Ors.) .. (6) S.B. CIVIL WRIT PETITION NO.6129/2007. (Ram Deo Vs. State of Rajasthan & Ors.) .. (7) S.B. CIVIL WRIT PETITION NO.6130/2007. (Hari Ram Vs. State of Rajasthan & Ors.) .. (8) S.B. CIVIL WRIT PETITION NO.6133/2007. (Bhura Ram Vs. State of Rajasthan & Ors.) .. (9) S.B. CIVIL WRIT PETITION NO.6135/2007. (Bharat Singh Vs. State of Rajasthan) .. (10) S.B. CIVIL WRIT PETITION NO.6138/2007. (Rameshwar Lal Jyani Vs. State of Rajasthan & Ors.) .. (11) S.B. CIVIL WRIT PETITION NO.6200/2007. (Rehman Khan Vs. State of Rajasthan & Ors.) .. (12) S.B. CIVIL WRIT PETITION NO.6201/2007. (Israram Vs. State of Rajasthan & Ors.) .. (13) S.B. CIVIL WRIT PETITION NO.6219/2007. (Om Prakash Kalwa Vs. State of Rajasthan & Ors.) .. (14) S.B. CIVIL WRIT PETITION NO.6853/2007. (Rampal Vs. State of Rajasthan & Ors.) 2 .. (15) S.B. CIVIL WRIT PETITION NO.6888/2007. (Smt. Nathia Devi Vs. State of Rajasthan & Ors.) .. (16) S.B. CIVIL WRIT PETITION NO.6895/2007. (Ram Pal Singh Vs. State of Rajasthan & Ors.) .. (17) S.B. CIVIL WRIT PETITION NO.6908/2007. (Bhanwar Singh Bhati Vs. State of Rajasthan & Ors.) .. (18) S.B. CIVIL WRIT PETITION NO.6909/2007. (Babu Lal Chouhan Vs. State of Rajasthan & Ors.) .. (19) S.B. CIVIL WRIT PETITION NO.6910/2007. (Deva Ram Vs. State of Rajasthan & Ors.) .. (20) S.B. CIVIL WRIT PETITION NO.6933/2007. (Bhagwana Ram Vs. State of Rajasthan & Ors.) .. (21) S.B. CIVIL WRIT PETITION NO.6937/2007. (Najir Hussain Vs. State of Rajasthan & Ors.) .. (22) S.B. CIVIL WRIT PETITION NO.6988/2007. (Dharmendra Kumar Gehlot Vs. State of Rajasthan & Ors.) .. (23) S.B. CIVIL WRIT PETITION NO.7007/2007. (Praveen Kumar Jain Vs. State of Rajasthan & Ors.) .. (24) S.B. CIVIL WRIT PETITION NO.7087/2007. (Kishan Singh Vs. State of Rajasthan & Ors.) .. (25) S.B. CIVIL WRIT PETITION NO.7312/2007. (Mukhtayar Ali Vs. State of Rajasthan & Ors.) .. (26) S.B. CIVIL WRIT PETITION NO.7494/2007. (Urmila Pareek Vs. State of Rajasthan & Ors.) .. (27) S.B. CIVIL WRIT PETITION NO.7497/2007. (Radha Vijayvargiya Vs. State of Rajasthan & Ors.) .. (28) S.B. CIVIL WRIT PETITION NO.7566/2007. (Mana Ram Vishnoi Vs. State of Rajasthan & Ors.) .. (29) S.B. CIVIL WRIT PETITION NO.7690/2007. (Roop Lal Khatik Vs. State of Rajasthan & Ors.) .. 3 (30) S.B. CIVIL WRIT PETITION NO.7691/2007. (Mangi Lal Khatik Vs. State of Rajasthan & Ors.) .. (31) S.B. CIVIL WRIT PETITION NO.7692/2007. (Smt. Veer Pal Kaur Vs. State of Rajasthan & Ors.) .. (32) S.B. CIVIL WRIT PETITION NO.7745/2007. (Kishan Choudhary Vs. State of Rajasthan & Ors.) .. (33) S.B. CIVIL WRIT PETITION NO.7749/2007. (Hamir Singh Labana Vs. State of Rajasthan & Ors.) .. (34) S.B. CIVIL WRIT PETITION NO.7802/2007. (Smt. Tara Sharma Vs. State of Rajasthan & Ors.) .. (35) S.B. CIVIL WRIT PETITION NO.7846/2007. (Sagar Ram Vs. State of Rajasthan & Ors.) .. (36) S.B. CIVIL WRIT PETITION NO.6997/2007. (Liyakat Ali Vs. State of Rajasthan & Ors.) .. (37) S.B. CIVIL WRIT PETITION NO.7781/2007. (Asha Rani Bhargava Vs. State of Rajasthan & Ors.) .. REPORTABLE Date of Order :: 18th February 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Anil Kaushik ] Mr. Arjun Purohit with Mr. D.S. Gaur ] Mr. M.A. Siddiqui ] Mr. G.R. Punia with Mr. Y.P. Khileree and Mr. R.S. Choudhary ] Mr. Awardan Charan ] Mr. Mukesh Rajpurohit ] Mr. C.P.Trivedi with Mr. Deepak Nehra ] Mr. Tapan Vaishnav ] Mr. Bharat Devasi ] Mr. S.K. Sankhla ] Mr. J.S. Bhaleria for Mr. Imran Khan ] 4 Mr. Tribhuvan Gupta ] Mr. A.K. Choudhary ] Mr. H.S. Sidhu with Mr. Rajesh Grewal ] Mr. R.S. Saluja ] Mr. Sabir Khan for Mr. Pradeep Shah ], for the petitioner/s. Mr. Rameshwar Dave, Dy.G.A., for the respondents. .. BY THE COURT: These writ petitions involving similar facts and an identical issue questioning the authority of the State Government to issue transfer order in relation to the petitioners from one place of posting to another within the same Panchayat Samiti, have been heard together and are taken up for disposal by this common order. The factual aspects are not much in dispute and the issue involved is also a short one; hence, a brief narration of the background facts and grounds of challenge from the representative case would suffice. The petitioner in CWP No.6108/2007, working as physical training instructor Gr.III and posted at Government Upper Primary School No.1, Pokran within Panchayat Samiti Sakra, District Jaisalmer has been ordered to be transferred on administrative grounds by an order issued by the Deputy Secretary to the Government in its Panchayati Raj (Elementary Education) Department on 27.08.2007 (Annex.1) to Government Upper Primary School, Nodardi, Panchayat Samiti Sakra, District Jaisalmer. The petitioner has questioned the said 5 transfer order essentially on the ground that the State Government has no authority under the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') and the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996') to transfer him on administrative basis within the same Panchayat Samiti. It is contended with reference to a decision of this Court in the case of Nawab Beg Vs. State of Rajasthan : (1999)1 RLW 186 that power to transfer the petitioner on administrative basis within the Panchayat Samiti lies only with the Chief Executive Officer of Zila Parishad as per sub-rule (26) of Rule 336 of the Rules of 1996. It is submitted with reference to the decision of this Court in the case of Inder Singh & Anr. Vs. State of Rajasthan: (2007) 1 RLW 737, as affirmed on 24.01.2007 in D.B. Civil Special Appeal No.871/2006: Kishan Singh & Ors. Vs. State of Rajasthan, that when the statutory provisions envisage the transfer of a Patwari to be ordered only by the Collector concerned, this Court has quashed such transfer order made at the instructions of the State Government and has disapproved abduction of powers of the Collector by the State Government. It is contended that the same principles do apply to the present case too; and the impugned transfer order being beyond the power and authority of the State Government deserves to be quashed. Before proceeding further, it may be pointed out that the other writ petitions in this batch carry similar facts wherein the 6 particular incumbent holding the post of teacher Gr.III or physical training instructor Gr.III has been transferred from one place of posting to another within the same Panchayat Samiti by similar nature order issued by the said Deputy Secretary to the Government in its Panchayati Raj (Elementary Education) Department; and the petitions are founded essentially on the same ground questioning the very competence of the State Government to issue such transfer order, transferring the employee within the same Panchayat Samiti. For an eye-view of the facts, the relevant particulars in relation to the each of the petitioners from the impugned transfer orders have been delineated in the Schedule appended to this order. It may also be pointed out that most of the petitions have directly been filed to this Court under Article 226 of the Constitution of India, as referred in Part-I of the said Schedule. However, a few of the similarly circumstanced petitioners, having been transferred within the same Panchayat Samiti, approached the Rajasthan Civil Services Appellate Tribunal (‘the Tribunal’) challenging such kind of transfer orders and the Tribunal has proceeded to reject their appeals and thereafter they have approached this Court by way of the writ petition under Article 226/227 of the Constitution of India. The relevant particulars in relation to such petitioners have been delineated in Part-II of the said Schedule appended to this order. The petitioner of CWP No.7802/2007 has preferred 7 the writ petition with the submissions that she had filed an appeal with the Tribunal but the same was not taken up for consideration for non-sitting of the Bench of the Tribunal. It may also be pointed out that in some of these petitions, the writ petitioners have also suggested some other grounds with reference to their personal difficulties; however, in relation to such grounds suffice is to point out that interference in a transfer order is considered by the courts only when the same is challenged on the ground of mala fide or violation of any statutory requirement and the present petitions have been entertained essentially because the transfer orders have been challenged on the ground of violation of the requirements of the the Act of 1994 and the Rules of 1996. Consideration in this order is, therefore, confined to such aspects of statutory requirements only. The contesting respondents have filed reply in a few of the petitions. Objections have been taken in relation to the petition directly filed to this Court that the petitioner has alternative remedy of filing appeal before the Tribunal and for availability of such alternative remedy, the petition is not competent. It has also been contended that the scope of interference in the transfer order remains limited and unless there be a case of mala fide exercise of powers or violation of statutory rules, the order of transfer made in administrative exigency, being of an incident of 8 service, calls for no interference. While justifying issuance of the impugned transfer order by the State Government, it has been contended with reference to 73rd Amendment to the Constitution of India that the elementary education has been placed under the control of Panchayati Raj Department with a view to strengthen the Panchayati Raj institutions and, therefore, according to the respondents, the transfer of the teachers working in elementary schools has rightly been effected by the Deputy Secretary in Panchayati Raj (Elementary Education) Department. It is further the stand of the respondents that the State Government is clothed with powers to make transfers in administrative exigencies; that the powers of the State Government under Section 89 (8-A) of the Act of 1994 are of wide range and amplitude and the State Government is very much authorized to effect such transfers. It has also been contended that the provisions of sub-section (8-A) of Section 89 of the Act of 1994 starting with a non-obstante clause have to be harmoniously construed; and the powers of the State Government to issue transfer orders over and above the powers of other functionaries is required to be given full effect; and likewise, even under Rule 289 (3) of the Rules of 1996, the State Government has ample competence to effect transfers within Panchayati Samiti/District. It is contended that the petitioners hold transferable posts and cannot insist on sticking to the same 9 place of posting. The learned Government Counsel, while opposing the writ petitions, has referred to and relied upon a decision of this Court in the case of Mahendra Kumar Yadav Vs. State of Rajasthan : (2001) 1 WLC 328. Before embarking on the core question involved in the matter, it appears appropriate to dispose of the preliminary objection regarding availability of alternative remedy. Availability of an alternative remedy is not of absolute bar on exercise of writ jurisdiction by this Court; and then, in the matters of the present nature questioning the transfer orders specifically on the ground of violation of statute, there appears no reason to relegate the petitioners to the alternative remedy of appeal before the Tribunal. Noteworthy it is that at least two petitions in this batch have been filed after the concerned petitioner had approached the Tribunal and the appeal has been dismissed. In the overall view, the objection regarding alternative remedy in these matters deserves to be, and is, overruled. The short question calling for determination is as to whether the impugned transfer orders suffer from violation of any statutory requirement; or, more appropriately, as to whether the impugned transfer orders issued by the State Government transferring the petitioners from one place to another within the same Panchayat Samiti remain unauthorized and beyond the powers conferred by the statute? The answer, in the opinion of 10 this Court, remains in the affirmative. The impugned transfer orders suffer fundamentally from want of authority. It is the stand of the respondents that the State Government is clothed with powers to make transfers in administrative exigencies; that the powers under Section 89 (8-A) of the Act of 1994 are of wide amplitude and thereby the State Government is authorized to effect such transfers. It has also been contended that sub-section (8-A) of Section 89 of the Act of 1994 starting with a non-obstante clause provides for the powers of the State Government to issue transfer orders over and above the powers of other functionaries; and that under Rule 289 (3) of the Rules of 1996, the State Government has competence to effect transfers within Panchayati Samiti too. A bare look at the relevant statutory provisions is sufficient to find that such contentions remain hollow and spineless; and that the impugned transfer orders of the employees like the petitioners within the same Panchayat Samiti suffer from want of authority with the State Government. The constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service is brought about under Section 89 of the Act of 1994; such service is divided into difference categories, and each category into different grades [per sub-section (2) of Section 89] that includes Primary and Upper Primary School teachers, like the present petitioners. Appointments to the posts 11 in service are made by direct recruitment, or by promotion, or by transfer [per sub-section (5) of Section 89]. Appointments by promotion and by transfer are governed by sub-section (8) of Section 89; but sub-section (8-A) of Section 89 authorizes the State Government to transfer any member of service from one Panchayati Raj institution to another. Sub-sections (8) and (8-A) of Section 89 of the Act of 1994, being directly relevant for the present purpose, are reproduced hereunder:- “(8) Appointments by- (i) promotion shall be made by the Panchayat Samiti or the Zila Parishad, as the case may be, in the prescribed manner from amongst the persons whose name have been entered in the list prepared by the District Establishment Committee; and (ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be, of the Panchayat Samitis or the Zila Parishads from and to which such transfer is proposed to be made. (8-A) Notwithstanding anything contained in Sub- sec. (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from Panchayat Samiti to Zila Parishad or from a Zila Parishad to a Panchayat Samiti and may also stay the operation of, or cancel, any order of transfer made under Sub-sec. (8), or the rules made thereunder:” Rules 289 and 290 of the Rules of 1996, dealing with the matters of transfer, read as under:- 12 “Rule 289. Transfer within the district.-(1) The name of the employee desiring transfer or desired to be transferred within the district shall be communicated to the district Establishment Committee by the Panchayat Samiti. (2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or Zila Parishad concerned on the recommendation of the district Establishment Committee. (3) State Government may issue orders regarding transfers from time to time. In case District Establishment Committee/Standing Committee of Panchayat Samiti does not agree, Chief Executive Officer/Vikas Adhikari as the case may be, shall carry out orders of the State Government. (4) On transfer of the employee, his confidential roll and service record will be transmitted, without avoidable delay, to the Panchayat Samiti/Zila Parishad to whom his services have been transferred. Rule 290. Transfer outside the district.- (1) The name of the employee desiring transfer or desired to be transferred from one district to another shall be communicated to the Director by the Panchayat Samiti or the Zila Parishad, as the case may be. (2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the State Government against the vacant posts existing at such time. The State Government may transfer any member of service from one Panchayat Samiti to another Panchayat Samiti within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from Panchayat Samiti to Zila Parishad or from a Zila Parishad to Panchayat Samiti and may also stay the operation of, or cancel, any order of transfer made under these rules. Chief Executive Officer or Vikas Adhikari concerned shall carry out such orders. 13 (3) On transfer of an employee, his confidential roll and service record will be transmitted without avoidable delay to the Panchayat Samiti/Zila Parishad to whom his services have been transferred.'' A comprehension of the provisions aforesaid makes it clear that even while clothing the State Government with powers to issue transfer orders in relation to the employees of Panchayati Raj institutions from one institution to another, and with further powers to stay the operation of, or cancel, any order of transfer made by other functionary, the legislature has consciously omitted to invest the State Government with any power to issue transfer order within the same Panchayat Samiti. The Government has, of course, been given powers, and rather over-riding powers, under sub-section (8-A) of Section 89, to transfer any member of service: (i) from one Panchayat Samiti to another Panchayat Samiti, within the same district or outside it; (ii) from one Zila Parishad to another Zila Parishad; (iii) from Panchayati Samiti to Zila Parishad; and (iv) from Zila Parishad to Panchayat Samiti; and further, the State Government has been given powers to stay operation of, or cancel, any order of transfer made under Sub-section (8) yet and however, the power to transfer a member of Panchayati Raj Service from one place to another within the same Panchayat Samiti is not available with the State Government under sub-section (8-A) of Section 89 of the Act of 1994. 14 No such authority to issue the orders of the present nature being available with the State Government in the parent statute, the respondents have attempted to suggest that such authority exists by virtue of sub-rule (3) of Rule 289 of the Rules of 1996. The submission is not well founded. The Rules of 1996 could only be read as providing the methods to implement the provisions contained in the main statute; and cannot be read overriding the substantive provisions contained in the principal enactment i.e., the Act of 1994. When specific provision has been made in the statute for the purpose of investing the State Government with some powers to deal with the matters of transfer of the employees of the Panchayati Raj institutions, operation of the Rules would obviously remain confined to such provisions of the Act of 1994. When the power to transfer a member of Panchayati Raj Service from one place to another within the same Panchayat Samiti has specifically been omitted from mention in sub-section (8-A) of Section 89 of the Act of 1994, the State Government cannot be considered having separately been conferred such powers by Rule 289(3) of the Rule of 1996. There is no such indication in the scheme of the enactment that independent of the provisions contained in the Act of 1994, any power relating to the employees of Panchayat Raj service could be provided by the Rules. The orders envisaged by Rule 289(3) of the Rules of 1996 would obviously 15 be such as could be issued under Section 89(8-A) of the Act of 1994; and not beyond. Viewed from any angle, the State Government does not carry power or authority to transfer a member of Panchayati Raj Service from one place to another within the same Panchayat Samiti. The impugned orders purporting to transfer the petitioners within the same Panchayat Samiti, thus, cannot be sustained. This Court in the case of Inder Singh (supra) dealt with the case where the statutory provision required that the transfer of a Patwari could be ordered only by the Collector concerned; and this Court quashed the transfer order of Patwari when made at the instructions of the State Government while disapproving such abduction of powers of the Collector by the State Government. The decision in Inder Singh came to be affirmed by the Division Bench in Kishan Singh (supra); and the Hon’ble Division explained the position of law in no uncertain terms thus: “Under the Rules, power to transfer patwaries have been conferred specifically on Collector 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 16 has to act on conditions under which he has to act, such action can be taken only by such authority and on fulfillment 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”. It is true that the transfer is an ordinary incident of service but then, it could be brought about only by the authority competent to do so. The corollary of the principles as pointed out in Kishan Singh (supra) directly applies to the present case. When the statute has not conferred any power upon the State Government to transfer a member of Panchayati Raj service within the same Panchayat Samiti, the transfer order so made by the State Government remains wholly unauthorized and cannot be approved. It may be pointed out that this Court, after examining the scheme of the aforesaid provisions of the Act of 1994 and the Rules of 1996 has dismissed the writ petitions involving the cases where the incumbents were transferred by the State Government from one Panchayat Samiti to another; and this 17 Court pointed out in the case of Meena Sharma Vs. State of Rajasthan and others: 2007(3) CDR 2665 that,- “A look at the Rules aforesaid and the source of wide powers of the State Government that is, Sub-section (8-A) of Section 89 of the Act of 1994, makes it clear that it is within the competence of the State Government, inter alia, to transfer an employee like the petitioner from one Panchayat Samiti to another Panchayat Samiti within the same District or outside the District. The submissions as made by learned counsel for the petitioner that the State Government could only lay down a policy and else posting by transfer is envisaged to be made