SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 1/9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.10027/2009 Suresh Jain. Versus State of Rajasthan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Mukesh Rajpurohit, for the petitioner Mr.Hemant Chaudhary } Mr.Rakesh Sinha } for the respondents. DATE OF JUDGMENT : 20th July, 2010. JUDGMENT REPOTABLE 1. Heard the learned counsel. 2. By this writ petition, the petitioner – Land Revenue Inspector has challenged his transfer by the impugned order Annex.1 dtd.14.10.2009 from Kolayat No.1 (Bijeri) to Ramgarh-2 (Higolewala) vice Sh. Nand Ram. The said order was passed by the Commissioner, Colonization, Bikaner. SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 2/9 3. The case comes up today on an application filed by the respondent – Department under Article 226(3) of the Constitution of India for vacating the exparte stay order dated 23.10.2009 by which the operation of the impugned transfer order was stayed by the coordinate bench of this Court, but the arguments on writ petition itself was heard at length and the same is being disposed of by this order. 4. The learned counsel for the petitioner relying upon the decision of this Court in the case of Inder Singh V/s State of Rajasthan and ors. reported in 2007(1) WLC (Raj.) 728 submitted that the power of the Collector to transfer the Patwari from one Tehsil to another Tehsil in his district is required to be exercised by him only by satisfying himself that the transfer of employee is necessary in the interest of administration. Para 19 of the said judgment as relied upon by the learned counsel for the petitioner is reproduced hereunder: “19. In the instant matters the Collector, Jodhpur without satisfying himself as to whether the transfer of Patwaris under his orders dated 15.7.2006 and 11.10.2006 is for efficiency of the administration, effected the transfers of number of Patwaris by getting instructions from the Deputy Secretary to the SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 3/9 Government of Rajasthan, Department of Revenue Group-II. The order passed by the Deputy Secretary on behalf of Government is also shown to the Court and that is nothing but a list containing names of Patwaris who are to be transferred with the place where they are to be posted. By the statute a power is given to the Collector to transfer a Patwari from one Tehsil to another Tehsil in his district and such power is required to be exercised by him only by satisfying himself that the transfer of a Patwari is necessary in efficiency of the administration. The State Government by may prescribe policy to assess the efficiency of of the administration but in the present cases I found that the State Government by its orders directed the Collector, Jodhpur to transfer certain Patwaris. As a matter of fact the State Government in the instant matters has abducted the statutory powers of the Collector as prescribed under Rule 9 of the Rules of 1957.” 5. Drawing the attention of the Court towards Rule 412 of the Rajasthan Land Revenue (Land Records) Rules, 1957, the learned counsel for the petitioner urged that the Collectors are solely responsible for the appointment, transfer and discipline of Patwaris SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 4/9 and therefore, the Colonization Commissioner could not have passed the impugned order. 6. Per contra, the learned counsel for the Department Mr. Hemant Chaudhary drew the attention of the Court towards the notification dtd.29.6.1989 by which Rule 4 of the said Rules were amended and after the word “Collector” wherever occurring, the words “or Colonisation Commissioner” were to be inserted. The said notification is reproduced hereunder for ready reference: “Revenue (Gr.IV) Department NOTIFICATION Jaipur, June 29, 1989 G.S.R.98:- In exercise of the powers conferred by sub- section (2) of Section 261 of the Rajasthan Land Revenue Act, 1956 (Rajastha Act No.15 of 1956), the State Government hereby makes the following amendment in the Rajasthan Land Revenue (Land Records) Rules, 1957, namely,: AMENDMENTS In rule 4 of the said rules:- (i) After (iii) proviso to clause (b) the following new proviso (iv) shall be added, namely: (iv) a person selected for patwar training by the Colonisation Commissioner and obtained training in the Patwar Training School and declared successful by the Secretary (Land Records) board of Revenue shall be deemed to be a trained Patwari.” (ii) In clause (c) and (d) after the word “Collector” wherever occurring the words “or Colonisation Commissioner shall be inserted. SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 5/9 (No.F.2(1) Rev/Gr.IV/89/11) by Order of the Governor, Dy. Secretary to the Government” 7. The learned counsel for the Revenue Department further submitted that Rule 173 deals with the transfer of Land Revenue Inspector, a post higher than that of Patwari and the said Rule 173 which is quoted below permits the Collector (which included Colonisation Commissioner) to transfer the Inspector of Land Records in his district. Rule 173 of the Rules of 1957 is reproduced hereunder: “Rule 173. Transfers:- The Collector can transfer Inspector of Land Records, in his district. Transfer from one District to another in the same division and from one division to another will be made by the Member, Land Records, Board of Revenue and the Board of Revenue respectively.” 8. The learned counsel for the respondents further submitted that the petitioner who is working in the Colonisation Department of the State Government has been transferred within the same district by the Colonization Commissioner, Bikaner, though the Revenue districts are different as shown in the impugned order SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 6/9 dtd.14.10.2009, there is no dispute on this issue that the said transfer order is within the same district under the Colonization Act. The learned counsel for the petitioner also fairly did not dispute this amendment in the definition of Collector to include the Colonization Commissioner. However, he reiterated his submission that the said transfer order could have been passed only after recording his own satisfaction about the said transfer and the impugned order shows that the said order has been passed at the behest and upon the direction of the Principal Secretary of the Revenue Department, Government of Rajasthan vide letter dtd.13.10.2009 referred to in the impugned order dtd.14.10.2009, therefore, it cannot be said to have been passed upon independent exercise of mind and upon satisfaction of the Collector/Colonization Commissioner and therefore, the impugned order is illegal and deserves to be quashed. 9. The learned counsel for the Department further relied upon the decision of the same Hon'ble Judge (Hon'ble Justice Govind Mathur, J.) Court who rendered the judgment in the case Inder Singh in subsequent judgment dtd.17.12.2009 in the case of Hanuman Singh V/s State of Rajasthan and ors. - SBCWP No.10025/2009 which was argued by the same counsel for the petitioner Mr. Mukesh Rajpurohit, in which the said learned Single Judge upheld the transfer order in such circumstances, where said transfer order is passed by the Commissioner, Colonization Bikaner, an authority competent to SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 7/9 transfer the Land Revenue Inspector, which the present petitioner also is. The relevant extract of the said judgment is reproduced hereunder for ready reference: “During the course of argument the only contention advanced by the learned counsel for the petitioner is that the order impugned dated 15.10.2009 is not passed by the authority competent i.e. Commissioner Colonization, Bikaner. From the perusal of the averments made in para 6 of the writ petition, it is admitted position by the petitioner that the order dated 15.10.2009 is passed by the Commissioner (respondent No.2). Learned counsel for the respondents has also shown me a copy of the order dated 15.10.2009 that clearly shows that the order impugned is passed by the Commissioner, Colonization. In view of it, I do not find any merit in the petition for writ. The same, therefore, is dismissed.” 10. To the same effect, there is another judgment of Coordinate bench of this Court dated 22.1.2010 in SBCWP No.9989/2009 – Jivan Ram V/s State and ors. in which relying upon the decision in the case of Hanuman Singh V/s State and ors., the SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 8/9 learned Single Judge of this Court upheld the transfer order on similar ground. 11. As far as contention of the learned counsel for the petitioner with regard to para 19 of the judgment in the case of Inder Singh (supra) is concerned, this Court respectfully does not agree with the said proposition that the authority competent to pass transfer order is required to record any such independent satisfaction about the said transfer of a subordinate from one place to another within his jurisdiction. This is neither a judicial nor quasi-judicial exercise or function of such competent authority and therefore, while passing the transfer order, no such satisfaction is required to be recorded by the said competent authority. No provision or Rule has been cited at Bar to this effect requiring the competent authority to record such satisfaction. 12. Even if the transfer order is passed at the direction of the higher authority, the same cannot be faulted. It is precisely the job of higher authority to over-see and supervise the administration of such Department and if their directions are not to be complied with by the lower authority, then the entire administrative system would fail, if the contention of the learned counsel for the petitioner was to be accepted. No such malafide can be inferred in such cases, unless they are specifically alleged and established with cogent material. SBCWP NO.10027/2009 – SURESH JAIN V/S STATE OF RAJASTHAN AND ORS. :JUDGMENT DTD.20.7.2010 9/9 Moreover, in view of the fact that the same learned Single Judge has taken a different view later on in the case of Hanuman Singh (supra), this proposition as canvassed by the learned counsel for the petitioner does not hold good in the opinion of this Court. Otherwise, no other ground is raised to challenge the impugned transfer order except the jurisdiction of the Colonization Commissioner to pass such order which has been demonstrably shown by amendment of definition of word “Collector” vide notification dtd.29.6.1989 quoted above to be within his jurisdiction. 12. Consequently, this Court finds no force in this writ petition and the same is accordingly. The IA No.5064/2010 for vacation of interim order is allowed and the interim order also stands vacated. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.2 Ss/-