SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 1/29 IN THE HIGH COURT OF JUDICATURE FOR RAJSTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.6691/2010 Shashikala Tripathi and anr. Versus The State of Rajasthan and ors. and 29 connected writ petitions (see Schedule) PRESENT HON’BLE DR. JUSTICE VINEET KOTHARI Dr.P.S.Bhati, Mr. C.S. Kotwani, } Mr.H.S. Sidhu, Mr. Vinod Chaudhary } Mr.Usma Ghani, Mr. P. Bohra, } for the petitioners. Mr.V.K.Bhadu, Mr. Rajesh Chaudhary,} Mr. J.P. Bhardwaj, Mr. H.R. Chawla } Mr.Kuldeep Mathur, } Mr.R.L. Jangid, AAG for the respondent – State. DATE OF JUDGMENT : 26.8.2010 REPORTABLE JUDGMENT 1. In the present set of writ petitions, the Teachers Grade III are before this Court in a batch of writ petitions and more than one joining in one writ petition also, who are working in various Government Schools in rural areas under the different Panchayati Samitis and who have been transferred from one place to another within the same Panchayati Samiti by a common order passed by the Dist. Education Officer (Elementary Education) of different Districts on 20.6.2010 and 22.7.2010. They have SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 2/29 challenged the jurisdiction of the said authority to pass the impugned transfer order from one Government School to another Government school within the same Panchayati Samiti and they claimed that the same is contrary to the provisions of Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) and the Rules made thereunder. 2. It would be appropriate to give a brief history of this litigation before the controversy raised in the present set of writ petitions is dealt with by this Court. 3. While dealing with a batch of writ petitions in which similar transfer orders within same Panchayat Samiti passed by the Dy. Secretary of Government of Rajsthan, Jaipur transferring the teachers- members of service of Rajasthan Panchayati Raj Institution (schools) was challenged by the said teachers before this Court and by the decision of coordinate Bench of of this Court in the case of Ram Singh V/s State of Rajasthan reported in 2008(2) RLW 1750 decided on 18.2.2008, the learned Single Judge of this Court held that the State Government acting through its Dy. Secretary does not have such power to transfer teachers – members of service from one school to another within the same Panchayat Samiti since non-obstante provisions of Section 89(8A) of the Act of 1994 while overriding S.89(8), specifically omits such power of the State Government while giving power to the State Government to transfer such members of service from one Panchayati Samiti to another Panchayat Samiti or from one SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 3/29 Zila Parishad to another Zila Parishad. Following the said decision, another decision was rendered by this Court recently in a batch of writ petitions on 13.7.2010, namely Badur Ram Khileree V/s State of Rajasthan and reiterating the aforesaid decision this Court again held that the State Government specifically does not have this power to transfer the teachers within the same Panchayat Samiti and it is only the competent authority defined and included within the ambit and scope of the Act of 1994 who can pass such orders. Consequent to the decision of this Court, the Elementary Education Department of Government of Rajasthan appears to have issued an order dtd.22.7.2010 taking a decision following the dictum of this Court in the case of Badur Ram Khileree (supra) – SBCWP No.5784/2010 decided on 13.7.2010 and in the same order, the Dy. Secretary, Government of Rajsathanm declared that for effecting transfer of such teachers within the same Panchayat Samiti under the Equalisation and Rationalisation Policy, appropriate orders may be issued by the competent Dist. Education Officer (Elementary Education). 4. In pursuance of this order, on the same date, the concerned Dist. Education Officer (Elementary Education) appears to have passed the impugned orders which are now challenged before this Court in the present set of writ petitions. In some of the Panchayat Samities, even prior to 22.7.2010, on 20.6.2010 some transfer orders were made by the competent Dist. Education Officer (Elementary Education)-cum-Additional Chief SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 4/29 Executive Officer, transferring such teachers from one school to another within the same Panchayat Samiti and those orders are also under challenge. 5. Since the academic session has already started in the State of Rajasthan on 1.7.2010 and on account of Equalization and Rationalization policy, mass transfer of teachers in the Government schools as well as those teachers attached with the schools in the rural areas of Panchayat Samitis have been effected and it has resulted also in mass litigation in the form of teachers challenging such orders by filing a host of writ petitions before this Court both at the Principal Seat at Jodhpur and Bench at Jaipur challenging such transfer orders on one ground or the other. 6. In the present set of writ petitions, the challenge by the petitioners is restricted to the ground of lack of jurisdiction of such Dist Education Officer (Elementary Education) (for short the DEEO) for effecting such transfer of teachers within the same Panchayat Samiti and these writ petitions are being disposed of by this common order. 7. The learned counsel for the petitioner as well as the respondents drew the attention of the Court towards the following provisions of the Act of 1994 as amended by Act No.8/2004 known as Rajasthan Panchayati Raj (Amendment) Act, 2004 by which certain important amendments were made in Section 89 of the Act and therefore, SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 5/29 these provisions of the Act and the Rules as now amended are reproduced hereunder for ready reference. 8. Firstly, the statement of object and reasons for the said Rajsathan Panchayati Raj (Amendment) Act, 2004 (Act No.8 of 2004) are reproduced below: “STATEMENT OF OBJECTS AND REASONS Section 89 of the Rajasthan Panchayati Raj Act, 1994 provided that selection for appointment on the posts of primary and upper primary teachers shall be made at district level by the District Establishment Committees. These Committees adopted different procedures/yardsticks for selection by interpreting rules and departmental instructions in different ways. This resulted in heavy litigation. Situation had arisen in which it had become practically impossible to hold selections for appointment of teachers in primary schools. To avoid uncalled for litigation and discrepancy in selection process, it was considered necessary to make selections through a single agency and single procedure. As a result it was decided that the task of selection for appointment on the posts of primary teachers should be entrusted to the Rajasthan Public Service Commission. Therefore, it was necessary to amend Secs.89 and 90 of the aforesaid Act suitably. SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 6/29 Since the Rajasthan Legislative Assembly was not in session and circumstances existed which rendered it necessary for the Governor of Rajasthan to take immediate action, he, therefore, promulgated the Rajasthan Panchayati Raj (Amendment) Ordinance, 2004 (Ordinance No.3 of 2004) on 28.2.2004, which was published in Rajasthan Gazette, Part IV (B), Extraordinary, dated 28.2.2004. The bill seeks to replace the aforesaid Ordinance.” 9. The relevant provisions of Rajasthan Panchayati Raj Act, 1994 as amended by Act No.8 of 2004 are reproduced below: “81A. Powers & Functions of the Block Elementary Education Officer- The Block Elementary Education Officer shall- (a) act as officer incharge of elementary education for the Panchayati Samiti, and (b) exercise such powers and perform such other functions as are conferred upon, or assigned to, him by the State Government.” “82. Chief Executive Officer and other Officers.-(l) An Officer of the Indian Administrative Service or the Rajasthan Administrative Service or a Project Director specially selected by the Rural Development Department] SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 7/29 shall be the Chief Executive officer of the Zila Parishad who shall be appointed by the Government. Likewise, the Government may appoint an Additional Chief Executive Officer for a Zila Parishad on such terms and conditions as may be prescribed. '[Explanation.-The Chief Executive Officer shall include an Additional Chief Executive Officer.] (2) The Government shall also appoint a Chief Accounts Officer, a District Elementary Education Officer and a Chief Planning Officer for each Zila Parishad. (3) The Government shall post from time to time in every Zila Parishad such number of its officers as the Government considers necessary. (4) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any other officer or other authority authorised by it in this behalf shall have power to effect transfer of the officers and officials so posted from one district to another.” “84. Powers and functions of the Chief Executive Officer and other Officers.- (1)………. (2)…. Sub-Section (10) inserted by Section 50 of Rajasthan Act No.9 of 2000:. (10) The District Elementary Education Officer shall act as officer incharge of elementary education for Zila Parishad and exercise such other powers and perform SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 8/29 such other functions as are conferred upon or assigned to him, by the State Government.” “89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service.-(1) There shall be constituted for the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district wise. Provided that selecdtion for the posts specified in clause (iii) of sub-section (2) shall be made at the State level. (2) The service may be divided into different categories, each category being divided into different grades, and shall consist of- (i) village level workers; (ii) Gramsevikas; (iii) Primary and Upper Primary School teachers; and (iv) ministerial establishment (except Accountants and Junior Accountants). (3) The State Government may encadre in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Parishads and not included in Class IV Services. (4) The State Government may prescribe the duties, functions and powers of each grade and each category of officers and employees encadred in the service. (5) All appointments to posts in the service shall be SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 9/29 made— (a) by direct recruitment; or (b) by promotion; or (c) by transfer. (6) Appointment by direct recruitment on the posts specified in clauses (i), (ii) and (iv) of sub-section (2) and on the posts encadred under sub-section (3) shall be made by a Panchayat Samiti or Zila Parishad, as the case maybe, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of section 90. (6A) Appointment by direct recruitment on the posts specified in clause (iii) of sub-section (2) shall be made by a Panchayati Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts by the Rajasthan Public Service Commission in accordance with the rules made by the State Government in this behalf. (7) The Appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee: SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 10/29 Provided that no appointment on temporary basis shall be made on the posts specified in clause (iii) of sub-section (2). (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 names 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. (8A) Notwithstanding anything contained in sub-section (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 a 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- section (8) or the rules made thereunder. (9) Persons holding posts encadred in the service shall also be eligible for appointment or promotion to posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 11/29 promoted shall count the period of their holding posts in the service constituted under this section for the purposes of seniority and pension. (10) Persons holding appointment in a state service shall also be eligible for appointment by transfer to a post encadred in the service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules. (11) Every person holding a post encadred in the service constituted under this section shall be entitled to the payment of a pension by the State Government out of the consolidated fund of the State in accordance with rules made by it in that behalf.” “90. Constitution and Function of the District Establishment Committee: (1) For each District, there shall be a District Establishment Committee consisting of the following- (i) Zila Pramukh, as the Chairman, (ii) Chief Executive Officer, and (iii) District Elementary Education Officer (where the matter before the said committee relates to the appointment of, or disciplinary proceedings against, a teacher of a primary school; and (iv) An officer nominated by the competent authority (2) The District Establishment Committee shall- SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 12/29 (a) make selection on the posts in different grades and categories, existing in the service except the posts specified in clause (iii) of sub- section (2) of Section 89 in the Panchayat Samiti and the Zila Parishad in the district in accordance with the rules made by the State Government in this behalf. (b) regulate the mode of temporary appointment and recommend the names of persons for extending such appointments beyond six months; (c) prepare lists of persons for promotion in the prescribed manner; and (d) advise the Panchayat Samitis of the district and the Zila Parishad all disciplinary matters affecting the officers and other employees thereof other than those referred to in Secs.79 and 82, which may arise under Sec.91.” 10. The relevant rules of Panchayati Raj Rules, 1996 are also reproduced hereunder for ready reference:. “Rule 277A. Procedure and method of direct recruitment for the post of Primary and Upper Primary School Teacher :(1) Notwithstanding anything contained in these rules, procedure for direct recruitment on the post of Primary and Upper Primary School Teacher shall be as specified in sub-rule (2) to sub-rule (13)- (2) The post of primary and upper primary school teachers shall be filled in by direct recruitment SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 13/29 through a competitive examination conducted by the Rajasthan Public Service Commission in accordance with these rules. (3) The syllabus for competitive examination for direct recruitment to the posts of primary and upper primary school teachers shall be as specified in Schedule II. (4) The application shall be invited by the Rajasthan Public Service Commission by advertising the posts in such manner they may deem fit and shall be made in such format as may be approved by it. The candidates shall be required to state in the application form, the names of all the 32 districts in order of their preference, in which they want to serve. (5) Subject to the provisions of these rules notice shall among other thing state:- (a) Number of posts to be filled in as the result of such examination indicating separately the number of posts reserved for candidates of the Scheduled Castes, Scheduled Tribes, other Backward Classes, Women candidates, physically handicapped and sports persons, if any, (b) date of submission of applications for admission. (c) qualification required for admission at the examination and the steps to be taken by candidates to establish their ability. (6) In addition to the notice the Rajasthan Public Service Commission may issue, in such other manner, as the Rajasthan Public Service Commission may deem fit, such other instruction for the guidance of the candidates. SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 14/29 (7) A candidate for direct recruitment to the post in the service shall pay to the Rajasthan Public Service Commission such fee as is fixed by them, from time to time in such manner, as may be indicated by them. (8) No claim for the refund of the examination fees shall be entertained nor the fee shall be held in reserve for any other examination except when the advertisement is cancelled by the Rajasthan Public Service Commission because of withdrawal of requisition by the Director of Elementary Education order any other reason in which case the amount shall be refunded: Provided that no claim for the refund of fees shall be entertained after a period of one month from the date of issue of letter of refund by the Rajasthan Public Service Commission to the candidate. (9) The applications which are found to be incomplete or have not been filled in accordance with the instructions issued by the Rajasthan Public Service Commission shall be rejected by them at the initial stage. The Rajasthan Public Service Commission shall permit rest of those candidate to appear in the examination provisionally to whom they consider it proper to grant the certificate of admission. No candidate shall be admitted to the examination unless he holds the certificate of admission that examination granted by the Rajasthan Public Service Commission before appearing at the examination it should be ensured by the candidate himself/herself that he/she fulfills the conditions in regard to age, educational qualification experience if any, as provided in the rules. Being allowed to take the examination shall not entitle SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 15/29 the candidate to presumption for eligibility. The Rajasthan Public Service Commission shall scrutinize later on the application of such candidates only, as qualify in the written examination. (10) The decision of the Rajasthan Public Service Commission as to the admission of a candidate to an examination and eligibility shall be final. (11) The Rajasthan Public Service Commission shall prepare merit list of the candidates declared successful in the primary and upper primary school teachers examination. Provided that the Rajasthan Public Service Commission may, to the extent of 50% of the finally intimated vacancies, keep names of suitable candidates on the reserve list. The Commission may on requisition recommend the name of such candidate in the order of merit to the Director, Elementary Education within six months from the date on which original list was forwarded by the Commission. Provided further that the Rajasthan Public Service Commission shall prepare separate list of the candidates belonging to the Scheduled castes and Scheduled Tribes, Other Backward Classes women candidates etc. in accordance with the reservation prescribed by the Government from time to time. (12) The names of the candidates shall be arranged in the respective list in the order of aggregate marks obtained by them in the examination. (13) The Rajasthan Public Service Commission shall send these lists to Director of Elementary Education SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 16/29 who shall notify it for the information of concerned appointing authority. Out of these lists, Director of Elementary Education shall allot district the candidate according to the preference of candidate written by application form.” “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”. “29O. Transfer outside the District.- 1) The name of the employee desiring transfer or desired to be transferred from one district to another shall be SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 17/29 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. (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.” “Rule 291. Seniority on transfer: Seniority of an employee transferred outside the district, by the State Government under Sub-sec.(8-A) of Sec.89 shall be determined by the Committee of the District to which he is transferred- (i) if the transfer is made on the request of the employee, his seniority shall be fixed at the bottom of the seniority list of the cadre to which he belongs; and SBCWP NO.6691/2010 – SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 18/29 (ii) if the transfer is made on administrative or other reasons, his seniority shall be fixed on the basis of his continuous length of substantive service on an analogous post.” “336. Other powers and functions of the Chief Executive officer:- In addition to the powers and duties laid down in Section 84 of the Act, the Chief Executive Officer shall assist the Pramukh in