1 S.B.CIVIL WRIT PETITION NO.7992/2007 Shriram Bhinchar v. State of Rajasthan & Anr. Date of Order :: 1st May, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Rajesh Choudhary, for the petitioner. Mr. Alkesh Agarwal, for the respondents. .... The Panchayat Samiti, Makrana resolved by majority to transfer certain teachers from one school to another in its meeting dated 30.6.2007, and in compliance thereto the order dated 30.6.2007 was passed by the Vikas Adhikari of the Panchayat Samiti. The Deputy Secretary to the Government of Rajasthan, Department of Panchayati Raj under an order dated 13.7.2007 cancelled the transfers made by the Panchayat Samiti, hence, this petition for writ is preferred. The petitioner is a Pradhan of the Panchayat Samiti, Makrana and the argument advanced on his behalf is that the cancellation of the order of transfer is not only bad in eye of law but is also against the spirit of the scheme of the 73rd amendment of the Constitution of India that confers constitutional status to the Panchayati Raj institutions with an emphasis to make them as effective units of self-governance. It is also urged that the State Government is having no 2 authority to interfere with the orders of transfer made within a Panchayat Samiti. To substantiate the contention, reliance is placed by counsel for the petitioner upon a Single Bench judgment of this Court in the case of Ram Singh v. State of Rajasthan & Ors. (SBCivil Writ Petition No.6108/2007), decided on 18.2.2008, holding therein as follows:- “The scheme of 73rd amendment to the Constitution, if of any indication, has been to confer constitutional status to the Panchayat Raj Institutions; and to make them effective units of self- governance. When the Panchayat Samiti concerned is to perform the functions and exercise powers specified in Second Schedule to the Act of 1994 [per Section 51], and running of the primary education is fundamentally the task to be undertaken by the Panchayt Samiti concerned. Of course subject to the conditions as may be specified by the State Government from time to time, the role of the Government is essentially that of general superintendence and cannot in any case be of thorough interference. The interference by the State Government even to the extent of ordering transfer of an employee within Panchayat Samiti would not be in conformity with the constitutional scheme, and would rather be an antithesis to the constitutional mandate. However, other aspects of the matter in this regard need no dilatation herein because the relevant statutory provision, of sub- section (8-A) of Section 89, itself makes it clear that the powers have been assigned to the State Government to effect transfers from one institution to 3 another but not within. The State Government has of course been given further powers to stay or cancel any order made under sub-section (8) but has yet not been extended such powers as to issue all kind of orders that could be made under sub-section (8) of Section 89 of the Act of 1994. For specific omission in sub-section (8-A), where the State Government has not been authorized to effect transfers within Panchayat Samiti, the impugned transfer orders made only for the purpose of transfers within the same Panchayat Samiti are required to be declared unauthorized and are, thus, required to be quashed.” While admitting the position that in view of the judgment of this Court in the case of Ram Singh (supra) the State Government was not having any power to cancel the orders of transfer made by the Panchayat Samiti, it is asserted by counsel for the respondents that the Pradhan of the Panchayat Samiti is having no locus standi to challenge the order passed by the Government of Rajasthan. Heard counsel for the parties. So far as the authority to pass the order impugned is concerned, the law has already been settled by this Court in the case of Ram Singh (supra). The only question survives is regarding locus of the present petitioner. The petitioner is Pradhan of the Panchayat Samiti, Makrana and as such he is having all rights and concern to protect and ensure the powers of a Panchayati Raj Institution. In the instant matter a conscious 4 decision was taken by the Panchayat Samiti by majority to effect transfers of its employees. The decision of the Panchayat Samiti was illegally interfered by the Government of Rajasthan and, therefore, the Pradhan of the Panchayat Samiti is having every right to challenge that. For the reasons mentioned above, this petition for writ preferred by the Pradhan of the Panchayat Samiti, Makrana is allowed. The order impugned dated 13.7.2007 passed by the Deputy Secretary to the Government of Rajasthan, Department of Panchayati Raj is quashed to the extent it relates to the employees of the Panchayat Samiti, Makrana. ( GOVIND MATHUR ),J. Kkm/ps.