1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) D.B.Civil Special Appeal (Writ) No.470/2010 State of Rajasthan vs. Badur Ram Khilerai & ors. (2) D.B.Civil Special Appeal (Writ) No.481/2010 State of Rajasthan vs. Smt. Kaushalya Devi & ors. (3) D.B.Civil Special Appeal (Writ) No.482/2010 State of Rajasthan vs. Durga Kumawat & ors. (4) D.B.Civil Special Appeal (Writ) No.483/2010 State of Rajasthan vs. Rajesh Kumar Setia & ors. (5) D.B.Civil Special Appeal (Writ) No.484/2010 State of Rajasthan vs. Meena Sharma & ors. (6) D.B.Civil Special Appeal(Writ) No.485/2010 State of Rajasthan vs. Devpal Singh Khinchi & ors. (7) D.B.Civil Special Appeal (Writ) No.486/2010 State of Rajasthan vs. Mahendra Singh & ors. (8) D.B.Civil Special Appeal (Writ) No.487/2010 State of Rajasthan vs. Monika Khatri & ors. (9) D.B.Civil Special Appeal (Writ) No.488/2010 State of Rajasthan vs. Saroj Verma & ors. (10) D.B.Civil Special Appeal(Writ) No.489/2010 State of Rajasthan vs. Santosh & ors. (11) D.B.Civil Special Appeal (Writ) No.490/2010 State of Rajasthan vs. Smt. Anju Agarwal & ors. (12) D.B.Civil Special Appeal (Writ) No.491/2010 State of Rajasthan vs. Manju Lata Vaishnav & ors. (13 ) D.B.Civil Special Appeal (Writ) No.496/2010 State of Rajasthan vs. Meera & ors. 2 (14) D.B.Civil Special Appeal (Writ) No.497/2010 State of Rajasthan vs. Ram, Ratan Goyal & ors. (15) D.B.Civil Special Appeal (Writ) No.498/2010 State of Rajasthan vs. Vasu Dev Choudhary & ors. (16) D.B.Civil Special Appeal (Writ) No.499/2010 State of Rajasthan vs. Ram Dhan Kaswan & ors. (17) D.B.Civil Special Appeal (Writ) No.500/2010 State of Rajasthan vs. Smt. Indu Mathur & ors. (18) D.B.Civil Special Appeal (Writ) No.506/2010 State of Rajasthan vs. Paramjeet Kaur & ors. (19) D.B.Civil Special Appeal (Writ) No.509/2010 State of Rajasthan vs. Urmila Gaur (20) D.B.Civil Special Appeal (Writ) No.513/2010 State of Rajasthan vs. Jugal Kishore Sharma & ors. (21) D.B.Civil Special Appeal (Writ) No.514/2010 State of Rajasthan vs. Jaanki Aaswani (22) D.B.Civil Special Appeal (Writ) No.515/2010 State of Rajasthan vs. Smt. Manju Sharma & ors. (23) D.B.Civil Special Appeal (Writ) No.516/2010 State of Rajasthan vs. Chandra Rekha Sharma & ors. (24) D.B.Civil Special Appeal (Writ) No.517/2010 State of Rajasthan vs. Anju Makkar (25) D.B.Civil Special Appeal (Writ) No.518/2010 State of Rajasthan vs. Rajni Jain & ors. (26) D.B.Civil Special Appeal (Writ) No.519/2010 State of Rajasthan vs. Kshama Shrimali & ors. (27) D.B.Civil Special Appeal (Writ) No.520/2010 State of Rajasthan vs. Smt. Santosh Kumari & ors. (28) D.B.Civil Special Appeal (Writ) No.521/2010 State of Rajasthan vs. Vinod Kumar Poonia & ors. 3 (29) D.B.Civil Special Appeal (Writ) No.525/2010 State of Rajasthan vs. Smt. Shalini Mehta & ors. (30) D.B.Civil Special Appeal (Writ) No.526/2010 State of Rajasthan vs. Rajendra Prasad & ors. (31) D.B.Civil Special Appeal (Writ) No.527/2010 State of Rajasthan vs. Smt. Gyarsi Maru & ors. (32) D.B.Civil Special Appeal (Writ) No.528/2010 State of Rajasthan vs. Hari Jagtani & ors. (33) D.B.Civil Special Appeal (Writ) No.529/2010 State of Rajasthan vs. Shiv Dan Ram & ors. (34) D.B.Civil Special Appeal (Writ) No.531/2010 State of Rajasthan vs. Mithlesh Bohra & ors. (35) D.B.Civil Special Appeal (Writ) No.04579/2010 State of Rajasthan vs. Asha Devi & ors. (36) D.B.Civil Special Appeal (Writ) No.04634/2010 State of Rajasthan vs. Smt. Seema Tripathi & ors. (37) D.B.Civil Special Appeal (Writ) No.04635/2010 State of Rajasthan vs. Pakka Ram (38) D.B.Civil Special Appeal (Writ) No.04787/2010 State of Rajasthan vs. Prem Lata Arora & ors. (39) D.B.Civil Special Appeal (Writ) No.04796/2010 State of Rajasthan vs. Mahendra Kumar Sharma & ors. Date of order : 25.08.2010 HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.R.L.Jangid, Additional Advocate General. ***** 4 Heard learned Additional Advocate General Shri R.L.Jangid. These appeals are against the common judgment dated 13.07.2010 by which bunch of writ petitions were allowed by learned Single Judge. Issue before the Single Bench of this Court was about the power, authority and jurisdiction of the State Government in transferring the teachers from one place to another place within the same Panchayat Samiti. The Single Bench on the basis of the earlier Co-ordinate Bench decision of this Court delivered in the case of Ram Singh vs. State of Rajasthan and Ors. 2008 (2) RLW 1750, reached to the same conclusion that in view of the clear language under Section 89 (8A) of the Rajasthan Panchayati Raj Act, 1994 the State has no power to transfer the teachers within Panchayat Samiti. Learned counsel for the appellant submitted that though following the decision of the Single Bench, the State Government has cancelled all the transfer orders but yet State has preferred these appeals so that the legal position may be examined by the Division Bench in the light of the subsequent amendments which were not brought to the notice of the Single Bench when the Ram Singh's case and Badur Ram Khileri case (supra) were decided by the two Benches of this Court alongwith several connected writ petition. According to the learned counsel for the petitioner, in the State of Rajasthan the Panchayats are constituted by the State Government by exercising the powers given under Section 9 of the Panchayati Raj 5 Act 1994 and in the same way by Section 10, the State Government can establish Panchayat Samities. The State Government under Sub- section (1) of Section 9 may declare any local area comprising a village or group of villages not included in a municipality or a Cantonment Board constituted under any law for time being in force to be a Panchayat Circle and for every local area declared as such there shall be a Panchayat. As per Sub-section (1) of Section 10 the State Government may, by notification in the Official Gazette, declare any local area, within the same District to be a Block and for every Block declared as such there shall be Panchayat Samiti having jurisdiction, save as otherwise provided in the Panchayati Raj Act 1994 over the entire Block excluding such portions of the Block as are included in a municipality or a Cantonment Board constituted under any law for the time being inforce. A “Block” has been defined under Sub-clause 2 of Section 2 of the Act which says “Block” and “Panchayat Circle” shall respectively mean the local area over which a Panchayat Samiti or, as the case may be, a Panchayat exercises its jurisdiction. Learned Additional Advocate General with the help of these provisions submitted that the unit is a village or group of villages which can be included for forming a Panchayat with condition that none of the area of village or group of village should be in municipality or a Cantonment Board. That unit consisting of various Panchayats falls under Panchayat Samiti in view of Sub-section (1) and in view of the definition of “Block” referred above. Then Section 89 6 of the Act of 1994 deals with the Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service. As per Sub-clause (iii) of Sub-section (2) of Section 89 Primary and Upper Primary School teachers are the category of services in the Panchayat Samiti and Zila Parishad. Sub-section (6) of the Section 89 provides that appointment by direct recruitment shall be made by a Panchayat 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 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. The Section 90 of the Act of 1994 provides for constitution and function of the District Establishment Committee and it requires establishment of a District Establishment Committee consisting of the authorities named under Sub-section (1) of Section 90 of the Act of 1994. The Sub-clause (a) of Sub-section (2) of Section 90 provides selection for the posts in different grades and categories existing in the service in the Panchayat Samiti and Zila Parishad in the district in accordance with the rules made by the State Government in this behalf. Learned counsel for the State submitted that on 28.02.2004 the Rajasthan Panchayati Raj (Amendment) Ordinance, 2004 (Ordinance No. 3 of 2004) was promulgated and thereby amendments were made in the Rajasthan Panchayati Raj Act 1994. According to the learned counsel for the State, by above ordinance a proviso has been inserted under Sub-section (1) of Section 89 and provision has been made that 7 selection for the posts specified in clause (iii) of sub-section (2) (of Primary and Upper Primary teachers ) shall be made at the state level. Sub-section (6A) has been inserted which provides that appointment by direct recruitment on the posts specified in clause (iii) of sub-Section (2) (of primary and upper-primary schools teachers) shall be made by Panchayat 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. Learned counsel for the State also pointed out amendment made in Section 90 whereby the words “except the post specified in Clause (iii)of Sub-section (2) of Section 89” have been inserted. According to learned counsel for the appellant firstly since the State Government has been given power to transfer any member of service by Sub-section (8A) of Section 89, therefore, it empowers the State Government to transfer the employees within the Panchayat Samiti also because of the reason that power to transfer one of the members of service outside Panchayat Samiti includes transfer of such member within Panchayat also because a Panchayat Samiti itself is constituted by Panchayats. We considered the submission of learned counsel for the appellant and perused the judgment cited by learned counsel for the 8 appellant referred above as well as one more judgment delivered in the case of Smt. Vimlesh Chouhan Vs. State & Ors. reported in RLW 2003 (4) Rajasthan page 2111. We found from the judgment of Ram Singh's case (supra) that the learned Single Judge very carefully examined the power of State Government as given by Sub-section (8A) of Section 89 and learned Single Judge also carefully considered the Rule 336(26) and Rule 289 (3) of the Rajasthan Panchayati Raj Rules. We would like to quote paras 12 and 13 of the Ram Singh's judgment which are as under :- “12- 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 9 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. 13-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 instituions, 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) 10 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 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.” The Ram Singh's case was followed by the Co-ordinate Bench in impugned judgment dated 13.07.2010 passed in bunch of writ petitions. As stated above the State Government itself has already accepted the ratio of the judgment referred above and has withdrawn all the transfer orders which were under challenge before the learned Single Judge in various writ petitions, but since contention of State is that some amendments in law were not noticed therefore issue may be re-examined. 11 Even after examining relevant provisions and amendment referred above, we are of the view that only power has been given to the State Government to transfer a member of service in Panchayati Raj Act of 1994 is under Sub-section (8A) of Section 89 which is specific and for under mentioned service and to the undermentioned extent :- (I)from one Panchayat Samiti to another Panchayat Samiti, whether within the same District or outside it, (II)from one Zila Parishad to another Zila Parishad, or (III) from a Panchayat Samiti to Zila Parishad or (IV)from a Zila Parishad to a Panchayat Samiti.” In addition to above Rules 289 and 290 of the Rajasthan Panchayati Raj Rules 1996 also deals with matters of transfers of the employees but these rules cannot enlarge the scope of substantive section and that is Section 89(8A) and this issue has been discussed in detail in earlier judgments of this Court which we have already mentioned and we agree with the view expressed in those judgments on this point. In the scheme of decentralisation of power, the units are constituted so that those units are controlled by the authority constituted to control the work of the unit. Several units can be clubbed to make a bigger body and for discharge of function of that bigger body, a bigger body or authority can be constituted and above that unit and body, there may be power of governance vesting in the State to the 12 extent as provided by law. In this hierarchy, the distribution of power is made by statutory provision. The unit, body or the authority can exercise its power within permissible limit of law giving it the power. Simply because a village is a unit within Panchayat and several Panchayats may constitute a Panchayat Samiti and Zila Parishad does not mean that what exclusive powers have been given to the Panchayat and those powers have not been given to the Panchayat Samiti can be exercised by Panchayat Samiti ifsofacto simply because that the Panchayat Samiti has been given some power over the Panchayat even of issuing some direction or Panchayat Samiti can hear appeals against the order/resolution of Panchayat falling under its territorial jurisdiction. The higher body, if is not vested with the power specifically by statute, cannot be vested with the power of the the body lower in hierarchy simply because of its position of being higher body. Therefore Sub-section (8A) cannot be interpreted to mean that since the State has power to transfer a category of the members of service from one Panchayat Samiti to another Panchayat Samiti within the same District or out of the State, the State got the power of transfer the employees (the teachers referred above) within Panchayat Samiti which power has not been given to the State. By the amendment made in 2004 by the Ordinance 2004, the proviso has been added under Sub-section 1 of Section 89 which says only that the selection for the post specified in Clause (iii) of Sub- 13 section 2 shall be made at the state level. The posts specified in Clause (iii) of Sub-section 2 are the posts of Primary and Upper Primary School teachers. The proviso only says that selection shall be made at State level obviously, for the reason, that the selection in the opinion of the legislation for the post of teachers for appointment under the Act of 1994 should be on the basis of State level competition. This amendment has nothing to do with the matter of transfer of such employees nor it changes the appointing authority. By Ordinance 2004 Sub-section 6 (A) has been inserted which is as under:- “(6A) Appointment by direct recruitment on the posts specified in clause (iii) of sub- section (2) shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out to 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.” Newly inserted Sub-section (6A) after Sub-section (6) in Section 89 was necessary in the light of making selection of such teachers for appointment under Panchayati Raj Act 1994 of State level selection therefore, it has been provided that persons for the post of Primary and 14 Upper Primary teachers will be given upon selection by RPSC. However, in spite of such State level selection the appointing authority was kept Panchayat Samiti or Zila Parishad as the case may be in newly inserted Sub-section (6A) in Section 89 and State has not been made appointing authority. The amendment in section 90 also has not given the power to the State Government to transfer the employees within the Panchayat Samiti and Zila Parishad. The amendment in Section 90 was necessary in view of fact that otherwise power of selection was vesting with the Establishment Committee as per unamended Sub-section (2) of Section 90 read with Sub-section (6) of Section 89 and that power of selection of persons for appointing on the post of such teachers has been taken away from District Establishment Committee and by amendment it has been given to RPSC. All above amendments made change in process of selection of persons and to improve the standards in selection of the teachers to be appointed on the post of Primary and Upper Primary School teachers. But these amendments not gave the State Government power to transfer employees beyond what is provided in Sub-section (8A) of 89. At the cost of repetition, we may state that in Ram Singh's case Law has been correctly interpreted and we are also of the view that if the State Government legislature itself has not given power to the State Government to transfer teachers within Panchayat Samiti then that may have been done purposefully and omission is conscious with 15 intention to give power of this transfer to achieve the object under Article 243 G of the Constitution of India which says:- “243 G Powers, authority and responsibilities of Panchayat- Subject to the provisions of the Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as instituions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to- (a)the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.” In view of the above reasons, we don't find any merit in these appeals, hence are dismissed. (KAILASH CHANDRA JOSHI ), J. (PRAKASH TATIA), J. Bharti