CW 13248/10 //1// (Transfer Within Zila Parishad) In the High Court of Judicature for Rajasthan Jaipur Bench ** 1- Civil Writ Petition No.13248/2009 Mohan Lal Gurjar Versus State & Ors 2- Civil Writ Petition No.13292/2009 Sanjay Jain Versus State & Ors 3-Civil Writ Petition No.13336/2009 Mool Chand Sharma Versus State & Ors 4- Civil Writ Petition No.13379/2009 Yadram Sharma Versus State & Ors 5- Civil Writ Petition No.13412/2009 Shiv Kr Sharma Versus State & Ors 6- Civil Writ Petition No.13431/2009 Ram Prakash Versus State & Ors 7- Civil Writ Petition No.13436/2009 Dinesh C.Sharma Versus State & Ors 8-Civil Writ Petition No.13438/2009 Sohan Singh Versus State & Ors Date of Order ::: 15/12/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Vijay Pathak, for petitioners Mr. Jinesh Jain, Govt. Counsel for respondents State A Bunch of these petitions has been filed by petitioners who while serving as Gram Sevak have been transferred vide common order dt.05/10/2009 from one Panchayat Samiti to the others within Zila Parishad, Karauli. Their basic grievance is that they have been transferred from one Panchayat Samiti to the other by Zila Parishad, Karauli without due compliance of S.89(8)(ii) of Rajasthjan Panchayati Raj Act, 1994 (“Act, 1994”) and the procedure to be followed as provided U/r 289 of Rajasthan Panchayati Raj Rules, 1996 (“Rules, 1996”) has not been carried out by respondents. All these CW 13248/10 //2// (Transfer Within Zila Parishad) petitioners were transferred under common order dt.05/10/2009 passed by Chief Executive Officer, Zila Parishad, Karauli, indisputably from one Panchayat Samiti to the other against which appeals were preferred but were dismissed by Rajasthan Civil Services Appellate Tribunal, vide common order dt.16/10/2009 (Ann.4-CWP-13248/09). Main thrust of Counsel for petitioners is that S.89(8)(ii) of the Act, 1994 casts obligation upon Zila Parishad to transfer an employee from Panchayat Samiti only after consultation with the Pradhans or 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; however, Zila Parishad Karauli in cases of transfer of present petitioners has passed orders impugned without consultation with Panchayat Samiti from and to which they have been transferred and taking assistance from the provisions (supra), Counsel submits that action of respondents is wholly arbitrary and in violation of S.89(8)(ii) of Act, 1994. Reply to writ petitions have been filed by respondents and certain proceedings of Zila Parishad Karauli, has been placed on record and taking note whereof, Government Counsel submits that Pradhan/Pramukhs of CW 13248/10 //3// (Transfer Within Zila Parishad) respective Panchayati Samitis had also participated in the meeting in which the decision was taken by District Establishment Committee of Zila Parishad, Karauli and pursuant to the decision taken in the meeting (supra), orders transferring the petitioners have been passed in compliance of provisions of the Act, 1994 & Rules, 1996 framed thereunder; and the action of the respondents is in confirmity of S.89(8)(ii) read with R.289 of Rules, 1996. Government Counsel further submits that R.289 of Rules, 1996 lays down procedure in regard to the transfer of employees within the district and the transfers can be made by Panchayat Samiti/Zila Parishad on the recommendation of the district establishment committee and since transfers impugned here have been made on the recommendation of district establishment committee, spirit of provisions contained in the Act, 1994 and Rules, 1996 framed thereunder have been complied with and followed in letter and spirit. That apart, Government Counsel submits that if at all petitioners are aggrieved by transfer orders passed by Zila Parishad, Karauli, a remedy of appeal is available to respective petitioners to invoke powers CW 13248/10 //4// (Transfer Within Zila Parishad) conferred upon State Government U/s 89(8A) of the Act, 1994; and in view of effective remedy of appeal available to the petitioners, instant petitions are not maintainable. This Court has considered rival contentions advanced at the bar and with their assistance, examined material on record. Before appreciating controversy raised herein, it is relevant to quote S.89(8) and 89(8A) of Act, 1994 and R.289 of Rules, 1996 being relevant ad infra: “89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service. - There shall be constituted for the State 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 selection for the posts specified in clause (iii) of sub-section (2) shall be made at the State Level.] “(8) Appointments by - (i) promotion shall be made by the Panchayat Samiti or the Zila Parisahd, as the case may be, in the prescribed manner from amongst 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.” “[8-A] Notwithstanding anything contained in CW 13248/10 //5// (Transfer Within Zila Parishad) 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 a Panchayat Samiti to a Zila Parishad or from 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.]” “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.” Under the Scheme of Rules, 1996, the controlling authority of employees appointed in Panchayat Samiti is Zila Parishad and in ordinary course, employee can be transferred within Zila Parishad from one Panchayat Samiti to the others, but after compliance of S.89(8) (ii), which clearly envisages and casts an obligation upon Panchayat Samiti/Zila Parishad, as the case may be, only after CW 13248/10 //6// (Transfer Within Zila Parishad) consultation with the Pradhans or the Pramukhs of the Pranchayat Samitis or Zila Parsiahds from and to which transfer is proposed to be made. In the instant case, transfers impugned herein have been made on the recommendation of Zila Parishad as is evident from the minutes of the meeting placed on record, but no material has been placed by which this Court could infer that both the Panchayat Samiti from and to which petitioners have been transferred, were duly consulted before their transfers impugned being made by Zila Parishad, Karauli. Taking note whereof and in the absence of consultation as required U/s 89(8)(ii) being made of both the panchayat samitis from & to which they have been transferred, in the opinion of this Court, the action of respondents authority is in violation of S.89(8)(ii) of Act, 1994. As regards submission about compliance of R.289 of Rules, 1996, suffice is to say that after the recommendations being made by Zila Parishad, further process in regard to transfer of the employees has to be carried out by the authority U/r 289 of Rules, 1996 but the respondents are under legal obligation to comply with requirement of law as provided in S.89(8)(ii) before the transfer is given CW 13248/10 //7// (Transfer Within Zila Parishad) effect to. Further submission made by Government Counsel that the petitioners could make a complaint by way of appeal to the State Government by invoking S.89(8A) of the Act is also without substance for the reason that S.89(8A) commences with non-obstante clause “Notwithstanding anything contained in sub- sec.(8)” and S.89(8A) confers powers upon State Government, obviously in the interest of administration or exigency, for transfer of any member of the service from one Panchayat Samiti to another one within same or outside the district, from one Zila Parishad to another Zila Parishad to a Panchayat Samiti and consultation as required U/s 89(8)(ii) is not required to be made for transfer while invoking S.89(8A) of Act, 1994. No doubt, S.89 (8A) confers power to stay the operation of or cancel any order of transfer made U/s 89(8) or the Rules made thereunder but does not provide any remedy to a person affecting his right upon being transferred made without compliance of S.89(8)(ii) or R.289 of Rules, 1996 of filing appeal to the State Government U/s 89 (8A) of the Act. Consequently, all the writ petitions succeed and are hereby allowed. Orders dt. 05/10/2009 of Zila Parishad, Karauli & dt. CW 13248/10 //8// (Transfer Within Zila Parishad) 16/10/2009 passed by Tribunal pertaining to transfers of petitioners impugned herein are hereby quashed and set aside. However, this order would not preclude respondents authority to pass fresh orders after due compliance of provisions under the law. No costs. (Ajay Rastogi),J K.Khatri/p8/ 13248CW2009Dec15TrnsWthnPnch(8).doc