JUDGMENT 1. - These thirty writ petitions have been filed by the Primary School Teachers, working in the various Panchayat Samitis of Rajasthan against the orders of their transfer by respondent No. 1, State of Rajasthan. 2. It is not necessary to mention the facts about the experience and the academic career of each of the petitioners because nothing turns upon them in these cases- The undisputed fact is that they are all Assistant Teachers in the Primary Schools, which are functioning under the various Panchayat Samitis in Rajasthan. The Rajasthan Panchayat' Law contemplates a three tier system where the basic unit is a Gram Panchayat. A Panchayat Samiti has been constituted which includes the area of number of Gram Panchayats. The apex body is the Zila Parishad which governs and supervises the functions of a number of Panchayat Samitis under it and the Gram Panchavats. This three tier system is regulated by the two Acts which are known as the Rajasthan Panchayat Act. 1953 (hereinafter referred to as the Act of 1953 and the Rajasthan Panchayat Samitis and Zila Ptriihads Act, 1959 (hereinafter called the Act of 1959). 3. The employees of these Panchayat Samities and Zila Parishads are governed by the Rajasthan Panchayat Samitis and Zila Parisheds Rules, 1959 (hereinafter referred to as 'the Rules'). 4. According to rule 29, transfer of an employee is to be regulated by a procedure which involves consultation of the various Panchayat Samitis, Zila Parishads and the Commission. Rule 29 is as under:- "29. Transfer outside the District:- The name of the employee desiring transfer or desired to be transferred from one district to another shall be communicated to the Commission by the Panchayat Samitis or the Zila Parishads, as the case may be. The Commission shall thereupon enter these names in a district wise list. (2) Appointment by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the Commission which shall consult the Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control they are proposed to be transferred. (3) .... (4) .... ...... ..... (2) Appointment by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the Commission which shall consult the Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control they are proposed to be transferred. (3) .... (4) .... ...... ..... It would be seen that the Commission is required to maintain a list in consultation of the Panchayat Samiti or the Zila Parishad as the case may be under whose administrative control the employee sought to be transferred is working and also under whose administrative control he is sought lo be transferred, and further both are required to be consulted for transfer in spite of the above detailed procedure contained in Rule 29, the State Government has retained to itself the powers of transfer of any member of the service or one Panchayat Samiti to another Panchayat Samiti where within the same State or outside it, by enactment of section 86 (9A). Ibis sub-section further gives powers to the State Government to stay the operation or cancel any order of transfer made under this sub-section or the rules made thereunder. 5. The petitioners have challenged the transfer orders on a number of grounds. It was argued that the orders are not speaking orders and as such, they are liable to be quashed. The transfers were further challenged on tho ground that they have not been made on the ground of administrative exigencies it hut the same have been done arbitrarily There was no material before the State Government to form any opinion to make an order of transfer. Since no reasons have been given in the order of transfer, the impugned orders are liable to be quashed on this simple ground. 6. It was also argued that the primary school teachers in the Primary Schools are lowerest in the ladder and as they are low paid employees, they should not be transferred unless they are compelling reasons Since the transfer orders have been passed arbitrarily, it has undermined the rule of law. Lastly, it was submitted that section 86 (9 A) is ultra vires because it gives unbridled, unrestricted, un-regulated, arbitrary powers to the State Government. 7. The respondents have contested the writ petition and have sought to justify their orders of transfer. Lastly, it was submitted that section 86 (9 A) is ultra vires because it gives unbridled, unrestricted, un-regulated, arbitrary powers to the State Government. 7. The respondents have contested the writ petition and have sought to justify their orders of transfer. It was submitted that the ultimate responsibility of development work in all areas administered by the Panchayat Samitis and Zila Parishads is of State Government. It was, therefore, just and proper and necessary that the administrative control of transfer of the employees should vest in the State, otherwise, it would not be possible to implement the development works and plans. According to respondents, the power of transfer has been conferred on the State Government and since it is a high ranking authority, that itself is a sufficient defence to the attack of discrimination and naked, unbridled powers alleged to have been given to the State Government violating Art 14 of the Constitution. Discretionary power need not be discriminatory, argued Mr. Shishodia. The mere possibility of abuse of power is not sufficient to invalidate a law. It was contended that the Court should not judge the propriety or sufficiency of the opinion formed by the Government regarding administrative exigencies unless mala fides are proved but the formation of opinion should be left to the subjective satisfaction of the Government and the Court should not insist on the objective scrutiny of the same. 8. Learned counsel for the parties referred to a number of authorities whish shall be dealt with at the appropriate stage. 9. I would deal with the legal debate regarding the validity of Sec 86 (9 A) a little later. The first question to be considered is as to whether the impugned order can be quashed on the ground that it is non-speaking order and no reasons have been recorded in it. 10. 9. I would deal with the legal debate regarding the validity of Sec 86 (9 A) a little later. The first question to be considered is as to whether the impugned order can be quashed on the ground that it is non-speaking order and no reasons have been recorded in it. 10. Mr Singhvi in order to substantiate his statement that a transfer order is liable to be struck down unless it is speaking order based on reasons, referred to the judgment of the Hon'ble Supreme Court on Ramanna Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 in which the Court observed as under:- "Every action of the executive Government must be informed with reason and should be free from arbitrariness...And to the application of this principle it makes no difference whether exercise of the power involves affectation of some right or denial of some privilege". Reliance was also placed on Union of India v. Mohanlal Capoor, 1973 (2) S.L.R. 824 wherein it was observed as under:- "In the context of the effect upon the rights of aggrieved persons, as member of a public service who are entitled to just and reasonable treatment by reason of protections conferred upon them by Arts 14 and 16 of the Constitution, which ire available to them throughout their service, it was incumbent on the selection committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible in justice and arbitrariness in making selections. If that had been done, facts on service record of officers considered by the selection committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and applied to the subject matter for a decision whether it is purely administrative or quasi judicial They should reveal a rational nexus between the facts considered and the conclusions reached Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable". It was pointed out that the Hon'ble Supreme Court has emphasised this requirement as analogous to the principles of audi alteram partem and observed as follows in Simons Engg. & Mfg. Co. It was pointed out that the Hon'ble Supreme Court has emphasised this requirement as analogous to the principles of audi alteram partem and observed as follows in Simons Engg. & Mfg. Co. v. Union of India, AIR 1976 S.C. 1785 . "The rule requiring reasons to be given in supports of an order, is like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law". Mr. Singhvi also placed reliance on M/s Ajantha Industries v. C. Board Direct Taxes, AIR 1976 S.C. 437 wherein the Hon'ble Supreme Court held that when the law requires reasons to be recorded, the order ceases to be an administrative order. The Court observed as under:- "When law requires reasons to be recorded in a particular order affecting pre-judicially the interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice or violation of principles of natural justice on account of omission to communicate the reasons is not expiated". 11. Mr. Shishodia, vehemently opposed the above contentions of Mr. Singhvi and argued that it would be going too far to assert that in each and every transfer order of a Government employee, the State should state the reasons of transfer and must be a speaking order. Reliance was placed on E.P. Royappa v. State of Tamil Nadu, AIR 1974 S.C. 555 wherein the Supreme Court observed as under:- "When in exercise of this choice the Government transfers an officer from one post to another, the officer my feel unhappy became the new post does not give him same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of exigencies of administration and is not from a higher post to a lower post with discriminatory preference of junior for the higher post, it would be valid and not open to attack under Articles 14 and 16". But that does not make the transfer arbitrary. So long as the transfer is made on account of exigencies of administration and is not from a higher post to a lower post with discriminatory preference of junior for the higher post, it would be valid and not open to attack under Articles 14 and 16". The decision of K B. Shukla v. Union of India, 1979 (2) S.L.R. 58 was also relied upon by Mr Shisodia to substantiate his submission that formation of opinion in such cases is subjective satisfaction of the Government. It was observed as under:- "The responsibility of good administration is that of Government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore the Government alone is best suited to Judge as to the existence of exigencies of term exigency being understood in its widest and pragmatic sense as a rule the court would not judge the propriety or sufficiency of such opinion by objective standards. Save where subjective process of forming it is vitiated by mala fides, dishonesty, extraneous purpose or transgression of limits circumscribed by legislation". A reference was also made to a judgment of the Supreme Court reported in Paresh Chandra Nandi v. Controller of Store, AIR 1971 S.C. 359 where in it was observed as under:- "Transfer of permanent employee and consequent transfer of his lien cannot be challenged when transfer is 10 a permanent post in the same cadre not carrying less pay even if such transfer materially effects chances of promotion". The relevant sub-section (9-A) of section 86 of the Act is as under:- "(9-A) Notwithstanding anything contained in sub-section (9), 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 and may also stay the operation of, or cancel, any order of transfer made under subsection (9-A) of the rules made thereunder". This sub-section (9-A) was inserted by sec. 5 of the Rajasthan Panchayat Laws (Amendment) Act, 1966. Earlier to it and even now, sub-section (9A) governs the transfers and promotions of incumbents holding the post encadered in the service. This sub-section (9-A) was inserted by sec. 5 of the Rajasthan Panchayat Laws (Amendment) Act, 1966. Earlier to it and even now, sub-section (9A) governs the transfers and promotions of incumbents holding the post encadered in the service. This sub-section (9) is as under:- "(9) Appointments by promotion or transfer of incumbents holding posts encadred in the service shall be governed by rules made in this behalf and may be ordered by the Panchayat Samiti or the Zila Parishad, as the case may be, from amongst persons entered in district-wise lists prepared in the prescribed manner - (a) in the case o' promotions or transfers within the same district by the District Establishment Committee constituted under sub-section 88, and (b) in the case of other transfers, by the Selection Commission constituted under sub-section (6), on the recommendation of the Panchayat Sam ti or the Zila Parishad under whose administrative control they are for the time being after consulting the Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control they are proposed to be transferred". It would be pertinent to note that sub-section (9-A) lays down no conditions, circumstances or criteria for transfers. There are no words like 'if in the opinion of the Government or if the Government thinks fit'. A reading of sub-section (9-A) would amply show that the power under sub-sec. (9-A) is not dependent on any peculiar facts and circumstances or reasons or conditions. It is, therefore, to be considered whether, when the Legislature has not put any fetters nor laid down any conditions or principles on the basis of which the Government is required to transfer an employee, can it be said that still the order should be a speaking order and should contain the reasons ? 12. The various decisions relied upon by Mr. Singhvi and important portions of which have been extracted above, would show that in none of them it has been held that the authority concerned is required to state the reasons while transferring an employee and or that the order of transfer should be a speaking order. It is true that in Ramanna Dayaram Shetty's case (supra) it was held that it makes no difference whether the exercise of the power involed affecting of some right or denying some privilege. The Court insisted that the action of the executive Government should be free from arbitrariness. It is true that in Ramanna Dayaram Shetty's case (supra) it was held that it makes no difference whether the exercise of the power involed affecting of some right or denying some privilege. The Court insisted that the action of the executive Government should be free from arbitrariness. Even then, absence of arbitrariness or insistence on fairness or reasonableness cannot be equated as an insistence for speaking order. The case was of Selection Committee's functioning. The Court was of the view that the record should be able to show that a particular officer was superseded. It was held that in such matters, reasons should reveal a rational nexus between the fact considered and the conclusions reached. 13. It must be noted that anxiety for fairness and reasonableness has been exhibited by the Courts off and on Supersession of an employee without any reason or rhyme would always violate Articles 14 and 16 of the Constitution and, therefore, it stands of high padestal. It would be going too far to equate it with an order of transfer simpliciter of an employee. 14. Similarly, the decision of Siemens Engineering (supra) and Ajantha Industries (supra) also cannot provide guidelines for deciding whether a transfer order should contain the reasons of transfer. 15. The Hon'ble Supreme Court in K. B. Shukla's case (supra) emphasised that the court would not judge the propriety or sufficiency of opinion of the State Government by objective standards. It was pointed out that the maintenance of an efficient honest and expedient administrative services is a must for the due discharge of their responsibilities and Government alone is best suited to judge the exigencies. Only four well known exceptions were carved out where the court should interfere in such matters and they are, if an order is based on mala fides or dishonesty or extraneous purpose or is outside the limits and purview of law. 16. I am, therefore, convinced that a transfer order need not be a speaking order and the requirement for a speaking order cannot be insisted upon in the case of an order of transfer simpliciter, as contemplated by section 86 sub-section (9-A) of the Act. This would always be so unless the statute expressly lays down this requirement. 17. Closely connected with the above submission, the objection of Mr. This would always be so unless the statute expressly lays down this requirement. 17. Closely connected with the above submission, the objection of Mr. Singhvi that the transfer has not been made on administrative exigencies as so such material has been placed on record, needs to be examined now. 18. It was pointed out that the Government has not been able to place on record any material on the basis of which, the authority conferred by sec. 86(9-A) exercised the powers of transfer in the present cases. The petitioner therefore argued that it was a case of abuse of power. Placing reliance on S.G Jaisinghani v. Union of India, AIR 1967 S.C. 1427 , Mr. Singhvi pointed out that absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional system is based. The principles of rale of law were then mentioned and it was held that decisions should be made by application of known principles and rules in general and they must be practicable and citizens should know where they are. Placing reliance on Om Oil and Oil seeds v. Union of India, AIR 1977 Delhi 132 the learned counsel invited my attention to the following observations of Delhi High Court "The expression' Rule of Law" is used in contradistinction to the rule of man. In the system in which Rule of law prevails, it is the law that rules, even though through the instrumentality of man, and not man independently of or above the law. In such a system all executive action must be based on legal sanction and there is no place for executive action that springs from individual whom, malice or, caprice. Rule of law, therefore has a built in safeguard against arbitrary action. Arbitrary action is a complete antithesis of the rule of law. Justiciality of arbitrary executive action is therefore an essential part of the concept of Rule of law. Rule of law, however, is much wider in its scope and ambit than the fundamental rights " It is true that the court must be jealous to ensure that the administrative authorities follow the rule of law in contraposition to rule of Men or women. Rule of law, however, is much wider in its scope and ambit than the fundamental rights " It is true that the court must be jealous to ensure that the administrative authorities follow the rule of law in contraposition to rule of Men or women. However, as would be obvious from para 9 of Iiyas Ahmed v. The Station Director, 1979 (2) SLR 651 , a judicial review of an order of transfer is permissible only if the transfer is made in mala fide exercise of the power. 19. In Smt. Pushpika v. State of West Bengal , the Court held that if an officer is transferred to retain other officers, the order cannot be deemed :o be an order in public interest. The relevant observations are as under:- "The petitioner was transferred with the object of accommodation 'A' at a particular station for undisclosed reasons. The order was not for public interest nor it was administrative purposes. The order therefore, was for collateral purpose and was mala tide and could not be sustained. It was a fit case where the order of transfer should be interfered " In N.N. Singh v. General Manager , the Calcutta High Court refused to oust its own jurisdiction on the plea that the respondent pleaded that the order is administrative only. 20. A perusal of the reply would show that although details and the reasons or circumstances leading to transfer not given in each case but he respondents have consistently said that the transfers were made on administrative reasons and there was no malice against the petitioners. It would, therefore, be unnecessary to examine each case and find out what were the reasons for transferring him. The transfers are made on administrative reasons and unless mala fides are proved or it is shown that any extraneous considerations were responsible for the same, the normal presumption were of administrative exigency and bona tides would hold the field. 21. The last limb of submission of Mr. Singhvi which has got a vary important bearing in this case relates to the validity of section 86 sub-section (9-A) of the Act. 22. The institution of Panchayat and the concept of Panchayat Samitii and Zila Parishads were introduced in Rajasthan states for democratic decentralisation. 21. The last limb of submission of Mr. Singhvi which has got a vary important bearing in this case relates to the validity of section 86 sub-section (9-A) of the Act. 22. The institution of Panchayat and the concept of Panchayat Samitii and Zila Parishads were introduced in Rajasthan states for democratic decentralisation. Article 40 of the Constitution reads as under "The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The preamble of the Panchayat Act reads as under:- "Whereas it is expedient to establish and develop Local Self-Government in the rural area of Rajasthan and to make better provision for village administration and development." The Statement of objects and reasons, contained in Rajasthan Gazette Part 111 dated, 13-5-52 reads as under:- "Different Covenanting States of Rajasthan have different laws dealing with village Panchayats and considerable difficulty is being experienced in the administration thereof in the territories to which they extend. It is desireable to follow a uniform policy and to have a uniform law on the subject. Hence the Bill which is designed to develop Local Self-Government in rural areas of Rajasthan." Article 40 of the Constitution of India is contained in the directive principles. The directives contemplated by the Founding Fathers is that the State Government should make appropriate law for the development of the Panchayat Raj in the villages of rural India based on the lines of democratic set up and also to provide for Self-Government to manage their own village affairs. Justice Bhagwati in Kasturilal Lakshmi Reddy v. State of Jammu and Kashmir, 1980 (4) S.C.C. 1 . observed that the directive principles concertise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 Articles enumerating the fundamental rights, and that they any action taken by the Government with a view to giving effect to any one or more of the directive principles would ordinarily, subject to any constitutional or legal inhibitions or other overriding considerations, qualify lot being regarded as reasonable, while an action which is inconsistent with or runs coulter to a directive principles would prima facie incur the reproach of bring unreasonable. 23. 23. Again, while considering the import of the phrase 'Public interest' Hon'ble Justice Bhagwati observed : "What according to founding fathers constitutes the planest requirement of public interest is set out in the directive principles and they embody par excellence the constitutional concept of public interest. If therefore, any governmental action it calculated to implement or give effect to a directive principle, it would ordinarily subject to any other overriding considerations, be informed with public interest." It would thus be clear that the State is undoubtedly expected, in view of the directive principles contained in Article 40, to take steps to organise village Panchayats and endow' them with such powers and authority M if necessary to enable them to function as units of self-government. 24. In this background, it would be now necessary to examine that by the original section 86(9) of the Rajasthan Panchayat Samitis and Zila Parishads Act, the transfers were governed by the rules made in this behalf. The statute provided that Panchayat Samittis and Zila Parishads would be competent and authorised to transfer the employees. This was to be done on the recommendation of the transferred. Further, a list was to be kept by District Establishment Committee constituted under were to be done district-wise within the same district otherwise it was to be done by the list which was kept by Selection Commission constituted under sub-section (6). 25. Under sub-section (9), rules were framed and a perusal of rules 28, 29 and 30 and sub-section (9) of section 86 would show that the powers of transfer were given to Panchayat Samitis and Zila Parishads and they were to be consulted for the purposes of preparing the lists which were kept by the District Administrative Committee for the Panchayat Selection Commission. The Panchayat Institutions were thus given autonomy in the matter of their staff so far as their transfers were concerned. This power stands substantially curtailed by the State Government by Insertion of sub-section (9-A) of Section 86. Undoubtedly, under sub-lection (9-A), neither any principles have been laid down nor any consultation is required. There is no criteria and unbridled powers have been given to the State Government to transfer or stay the transfer or re-transfer of an employee working in the Panchayat Simitis and Zila Parishad area. the Pradhan or the Paramukh of the Panchayat Samiti or Zila Parisbad have no say in the matter. There is no criteria and unbridled powers have been given to the State Government to transfer or stay the transfer or re-transfer of an employee working in the Panchayat Simitis and Zila Parishad area. the Pradhan or the Paramukh of the Panchayat Samiti or Zila Parisbad have no say in the matter. Any transfer made by him can be stayed by the State Government and can be cancelled. Anyone who wants to be retained by the Pramukh or the Pradhan can be transferred. Thus, the State Government has been given right of having a final word in the matter of transfers and that too, without 'consulting anyone from the Panchayat Institutions and can be in utter disregard and clear violation of not only the desire or decision of the Pramukh or the Pradhan but even the unanimous resolution of the Zila Parishad or the Panchayat Samiti. Such a power can be, safely termed as a veto power to the State Government as the transfer made by the Panchayat Samiti of the Parishad under sub-section 9 read with rules 28, 29 and 30 can be staved or cancelled without any reason or rhyme. Article 40 certainly intends the enjoying of the powers of self-government to the Panchayat Samiti and there cannot be any doubt that giving of such arbitrary powers to the State Government would he negation of It and undoing the very object and spirit which the founding fathers of the Constitution enacted Article 40. 26. With the above legal and logical significance of enacting sub-section (9-A), it has now to be examined whether challenge to it based on Article 14 of he Constitution can be sustained 27. It is beyond dispute that so far as sub-section (9-A) in itself is concerned, it gives arbitrary powers to the State Government which are unfettered unbridled. If a search is to be made for any principles or criteria, basis or formula on which transfers are to be made, the entire reading of the Panchayat Samitis and Zila Parishad Act would be an exercise in futility because it nowhere, directly or indirectly, lays down the guidelines nor it can be read in between the lines anywhere. 28. Mr. 28. Mr. Shisodia, in order to save sub-section (9-A) from the attack of Article 40 and precisely the submission that by giving such unbridled, arbitrary powers and without laying down any principles, criteria, formula or basis, the Legislature has defaced itself, submitted that the scheme of the Act as a whole can be looked into and that would provide ample guidelines and guidance. In order to substantiate this submission , Mr. Shishodia, relied upon another generalisation that whenever a power is given lo a high ranking authority in the Government, that itself is a sufficient answer against attack on the statute on the ground of giving unbridled unguided, un-canalised powers and suffering from the vice of discrimination under Article 14 Reliance was placed on Chinta Lingam v. Government of India, AIR 1971 S.C. 474 . "At any rate it has been pointed out in more than one decision of this court that when the power had to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment " There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law." Reference was also made to Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 S.C. 2042 . "It is true that this court has firmly ruled that the procedural inequality, if real and substantial is also within the vice of Article 14. But then, before a power can be held to be bad the same should be an unguided and unregulated one. But if a power is given to an authority to have recourse to different procedure under different circumstance that power cannot be considered as an arbitrary power. It must also be remembered that power under Section 5(1) is given to the State Government and not to any petty official. The State Government trusted to exercise that power to further the purposes of the Act. It is not the law that the guidance for the exercise of a power should be gatherable from one of the provisions in the Act. The State Government trusted to exercise that power to further the purposes of the Act. It is not the law that the guidance for the exercise of a power should be gatherable from one of the provisions in the Act. It can be gathered from the circumstances that led to the enactment of the law in question, i. e, the mischief that was intended to be remedied, the preamble to the Act or even from the scheme of the Act." My attention was also invited to Virendra v. The State of Punjab, AIR 1957 S.C. 896 . "The two sections before us lay down the principle that the State Government or the delegated authority can exercise the power only if it is satisfied that its exercise is necessary for the purposes mentioned in the sections. It cannot be exercised for any other purposes In this view of the matter neither of these sections can be questioned on the ground that they give unfettered and uncontrolled discretion to the State Government or one executive officer in the exercise of discretionary powers given by the section " "...No assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse of power, what will be struck down is not the statute but the abuse of power.". My attention was further drawn to M/s Pannalal Binjral v. Union of India, A.I.R. 1957 S.C. 397 in which the following observations were made:- "This power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. There is however, a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. "There may be cases where improper execution of power will result f in injustice to the parties. However, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is "an abuse of such power, the parties aggrieved are not without ample remedies under the law." Referring to the principles laid down in Gurbachan Singh v. State, 1952 S.C.R. 737 , Mr. However, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is "an abuse of such power, the parties aggrieved are not without ample remedies under the law." Referring to the principles laid down in Gurbachan Singh v. State, 1952 S.C.R. 737 , Mr. Shishodia submitted that the power to initiate proceedings under the Act, having been vested in a very high and responsible officer, he is expected to act with caution and impartiality while discharging his duties. Referring to N.B. Khare v. State of Delhi, AIR 1950 S.C. 211 wherein it was observed as under:- "Moreover, this whole argument is based on the assumption that the provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis Abuse of power given by a law sometimes occurs, but the validity of the law cannot be contested because of such an apprehension..." and to further strengthen submission, my, attention was drawn to Hari Shankar Bagla v. M.P. State, AIR 1954 S.C. 465 in which it was laid down that the conferment of such a discretion cannot be called invalid and if there is an abuse of the power, there is ample power in the Court to undo the mischief. 29. It was argued that since the discretion is vested in the State Government and not a petty official, abuse of power should not be assumed and, therefore, it cannot be held to be discriminatory. Reliance was placed on Matajog Dobey v. H. C. Bhari, AIR 1936 S.C. 44. Seemingly, one gets the impression that emphasis on the democratic decentralisation and Local Self Government has been given by enactment of Article 40 only, but a research scholar would trace its origin of Lord Ripin who in 1882 recognised and emphasised the same. In fact the resolution of Lord Ripin has been treated as Magna Carta of Local Self Government in India. The Royal Commission of 1906 recommended the outside control of the State Government should take more the shape of lithe and encouragement rather than dictation and fobidding. In fact the resolution of Lord Ripin has been treated as Magna Carta of Local Self Government in India. The Royal Commission of 1906 recommended the outside control of the State Government should take more the shape of lithe and encouragement rather than dictation and fobidding. The Britishers Introduced reforms based on Mentague Chansford report which lays down the following principles:- "Local Self Government is the sphere where the first step towards responsibility of Government should be taken, and accordingly there should be as far as possible completely popular control in local bodies and the largest possible independence for them of outside control." The principle in respect of Government Control may be summarised to be that the Government control over local bodies should be exercised there without rather than from within. The Government control should normally take the form of friendly advice add remonstrance only.The independence of India which wag the maximum expansion of the basic concept of Local Self Government and the home rule, or responsible Government gave new dimensions to the concept of Local Self Government, which also became a part of democratic decentralisation of power. The evolution of Local Self Government in India thus passed through several phases of Municipalities, District Boards, Zila Parishads Panchayat Samitis and the Basic atomic unit being the Gram Panchayat. The last being the age old unaltered Cheste and Pious celebrated institution of "Panch paremeshwar." 30. Rajasthan was the poineer in Panchayat Raj. The basic atomic unit of Panchayat which was nothing but modern concept of the ancient institution of panch parmeshwar, found its existence in the Rajasthan in the year 1953 when the President of India, on 10th October, 1953 gave assent to the Rajasthan Panchayat Act for establishment and development of Local Self Government, in the rural areas of Rajasthan State Later the then Prime Minister, Pandit Jawaharlal Nehru one of the principle architects of modern India, lit the fire of democratic decentralisation, Community Development by Panchayat Raj, in an historical epic function in Nagaur of Rajasthan. 31. Then came its expansion at sub-division and district levels by formation of Panchayat Samitis and Zila Pariah ad a under the Rajasthan Panchayat Samitis and Zila Parishad Act, 1959. While doing so District Boards which were in existence were abolished by section 70. 32. 31. Then came its expansion at sub-division and district levels by formation of Panchayat Samitis and Zila Pariah ad a under the Rajasthan Panchayat Samitis and Zila Parishad Act, 1959. While doing so District Boards which were in existence were abolished by section 70. 32. It was here on this juncture that several development activities in the field of education, agriculture, Animal husbandry etc. were placed in the subject of the Panchayat Samitis and Zila Parishads. Section 16 of the Act was enacted to deal with the services and primary school teachers came in category of section 86. It provides a separate service commission which is different from the Rajasthan Public Service Commission. This section provides for constitution of District Establishment Committee. As already discussed above sub-section 9 and 9 A provides for transfers and appointments by promotion. 33. Before I deal with the alleged vice of excessive delegation or objection regarding legislature effacing itself by enactment of sub-section 9-A of section 86 which empowers the State Government to transfer employees and gives blanket power, where even consultation of Pramukh or Pradhan is not necessary : I would consider what importance, the State is required to give to Article 40 of the Constitution. In order to appreciate it must be kept in mind that Article 37 of the Constitution certainly provides a mandate to the State which is as under:- "37. The provisions contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." There has been a long standing debate and a judicial divergence on the question whether directive principles of State policy can be treated alkin to Fundamental Rights. The latest and the best discussion where again divergence has been noted between the majority of judges led by the Chief Justice Chandra Chud and single judge majority of an equally eminent judge, justice Bhagwati find place in the Minerva Mills Ltd.v. Union of India an epic making judgment in the history of Constitutional law of India. The majority did not undermine the directive principles but defined their limits in the following manner : "The significance of the perception . The majority did not undermine the directive principles but defined their limits in the following manner : "The significance of the perception . that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deem understanding of the scheme of the Indian Constitution. Granville Austin's observation bring out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primary to one over the other is a disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. This is not mere semantics. The edifice of our Constitution is built upon the concept crystallised in the preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice - Social economic and political - We therefore, put Part IV into oui Constitution containing directive principles of State Policy which specify the specialists goal to be achieved. We promised to our people a democratic policy which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people. Those rights are not an end in the themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Part III are subject to reason ab-restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances be suspended. Those rights are not an end in the themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Part III are subject to reason ab-restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedom. One of the faith of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death in the exercise of right of self-defence After he has made good his escape. So great is the insistence of civilised laws on the purity of means The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part II. It is in this sense that Parts III ana IV together constitute the core of our Constitution and combine to form its conscience Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution." The lonely descent of justice Bhagwati is classic. He observed as under: "I may also point out that simply because the directive principles do not create rights enforceable in a court of law, it does sot follow that they do not create any obligations on the State. We are so much obsessed by the Hohfeldian Classification that we are so tend to think of rights, liberties, powers and privileges as being invariably linked with the corresponding concept of duty no right, liability and immunity. We find it difficult to conceive of obligations or duties which do not create corresponding rights in others. But he Hofeldian concept does not provide a satisfactory, analysis in all kinds of jural relationships and breaks down in some cases where it is not possible to say that the duty in one creates an enforceable right in another. We find it difficult to conceive of obligations or duties which do not create corresponding rights in others. But he Hofeldian concept does not provide a satisfactory, analysis in all kinds of jural relationships and breaks down in some cases where it is not possible to say that the duty in one creates an enforceable right in another. There may be a rule which imposes an obligation on an individual or authority and yet it may 'not be enforceable in a court of law and therefore not give rise to a corresponding enforceable right in another person. But it would still be legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command, Such a rule would exist despite of any problem relating to its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the constitution and even rules of international law would no longer be liable to be regarded as rules of law. This view is clearly supported by the opinion of Prot. A. A. Goedhart who, while commenting upon this point says : I have always argued that if a principle is recognised ai binding on legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it. Thus most of Diceys' book on the British Constitution is esteemed with certain general principles which Parliament recognises as binding on it. It is therefore, to my mind, clear beyond doubt that merely because the directive principles are not enforceable in a court of law, it does not mean that they cannot create obligations or duties binding on the State. Thus most of Diceys' book on the British Constitution is esteemed with certain general principles which Parliament recognises as binding on it. It is therefore, to my mind, clear beyond doubt that merely because the directive principles are not enforceable in a court of law, it does not mean that they cannot create obligations or duties binding on the State. The crucial test which has to be applied is whether the directive principles impose any obligations or duties on the State; if they do, the State would be bound by a constitutional mandate to carry out such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law." He would not be satisfied with the above emphasis and therefore, further put them at much high padestal by making explicit in para 11 which read: as under : "Now on this question Article 37 is emphatic and makes the point on no uncertain terms. It says t hat the directive principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. "There could not have been more explicit language used by the Constitution makers to make the directive principles binding on the State and there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37. In fact, non-compliance with the directive principles would be unconstitutional on the part of the state and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile. Now it is significant to note that for the purpose of the directive principles, the "State" has the same meaning as given to it under Article 13 for the purpose of the fundamental rights This would mean that the same State which is injucted from taking any action in infringement of the fundamental rights is told in no uncertain terms that it must regard the directive principles as fundamental in the governance of the country and is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are far-reaching. This gives rise to a paradoxical situation and its implications are far-reaching. The State is on one hand, prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any fundamental right and at the same time it is directed by the constitutional mandate in Article 37 to apply the directive principles in the governance of the country and to make laws for giving effect to the directive principles. Both are constitutional obligations of the State and the question is, as to which must prevail when there is a conflict between the two. When the State makes a law for giving effect to a directive principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into inflict with a fundamental right, it can only be on the basis that fundamental rights stand on a higher pedestal and have precedence over directive principles. But, as we have pointed out above, it is not correct to say that under our constitutional scheme, fundamental rights are superior to directive principles or that directive principles must yield to fundamental rights. Both are in fact equally fundamental and the courts have therefore in recent times tried to harmonise them by importing the directive principles in the construction of the fundamental rights. It has been laid down in recent decisions of this Court that for the purpose of determining the reasonableness of the restrictions imposed on fundamental rights, the court may legitimately take into account the directive principles and where executive action is taken or legislation enacted for the purpose of giving effect to a directive principle, the restriction imposed by it on a fundamental right may be presumed to be reasonable. I do not propose to burden this opinion with reference to all the decided cases where this principle has been followed by the court, but I may refer only to one decision which, I believe, is the latest on the point, namely, Pathumma v. State of Kerala where Fazal Ali J. summarised the law in the following words : (SCC p. 10, para 8). "One of the tests laid down by (his court is then, in judging the reasonableness of the restrictions imposed by clause (5) of the Article 19, the court has to bear in mind the directive principles of State policy". So also in the State of Bihar v. Kameshwar Singh , this court relied upon the directive principles contained in Article 39 in arriving at its decisions that the purpose for which the Bihar Zamindari Abolition legislation had been passed was a public purpose. The principle accepted by this Court was that if a purpose is one falling within the directive principles, it would definitely be a public purpose. It may also be pointed out that in a recent decision given by this Court in Kasturi Lal Lakshmi Reddy v. State of J.&K. (1980) 4 S.C. 116 it has been held that every executive action of the government, whether in pursuance of law or otherwise, must be reasonable and informed with public interest and the yardstick for determining both reasonableness and public interest is to be found in the directive principles and therefore, if any executive action is taken by the Government for giving effect to directive principle, it would prima facie be reasonable and in public interest. It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a directive principle and it imposes a restriction on a fundamental right, it would be difficult to condemn such restriction as unreasonable or not in public interest. It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a directive principle and it imposes a restriction on a fundamental right, it would be difficult to condemn such restriction as unreasonable or not in public interest. So also where a law is enacted for giving effect to a directive principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice The dynamic principle of egalitarianism fertilises the concept of social and economic justice ; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a directive principle with a view to promoting social and economic justice. It would be difficult to say that such law violates the principles oi egalitarianism and is not in accord with the principle of equality before the Jaw as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude In the circumstances the court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a directive principle in furtherance of the case of special and economic justice, would not infringe any fundamental right under Article 14 or Article 19. Mr. C. H. Alexandmwick, and eminent jurist, in fact, says : : Legislation implementing part IV must be regarded as permitted restrictions on part III, Mr. Mr. C. H. Alexandmwick, and eminent jurist, in fact, says : : Legislation implementing part IV must be regarded as permitted restrictions on part III, Mr. Ambedkar, one of the chief architects of the Constitution also made it clear while intervening during the discussion on the Constitution (First Amendment) Bill in the Lok Sabba on May 18, 1951, that in his view, so far as the doctrine of implied powers is concerned, there is amply authority in the Constitution itself, namely, in the directive principles "To permit Parliament to make legislation, although it will not be specifically covered by the provisions contained in the part on fundamental rights " If this be the correct interpretation of the Constitutional provisions, as I think it is, the amended Art 31-C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a directive principle, so that needlessly futile and time consuming controversy whether such law contravenes Article 14 or Article 19 is eliminated. The amended Article 31-C cannot in the circumstances be regarded as violative oi the basic structure of the Constitution." In substance he observed that fundamental rights and directive principles both are fundamental and it would be in correct to say that the fundamental rights are superior to directive principles. 34. Even before the celebrated judgment of Minerva Mill Justice Krishna Aiyer in a aeries of cases emphasised the importance of directive principles and placed them at a very high pedestal and observed as under : "Now we may deduce from these like articles, unaided by authority, certain clear conclusions of great relevance to the present case (1) The Constitution itself demarcates harijans from others. (2) This is based on the strink backwardness of this bottom layer of the community. (3) The differentiation has been made to cover specifically the area of appointments to posts under the State. (4) The twin objects, blended into one, are the claims of harijans to be considered in posts and maintenance of administrative efficiency. (5) The State has been obliged to promote the economic interests of harijans and like backward classes, Article 46 and 335 being a testament and Article 14 to 16 being the took-kit. If one may put it that way. (5) The State has been obliged to promote the economic interests of harijans and like backward classes, Article 46 and 335 being a testament and Article 14 to 16 being the took-kit. If one may put it that way. To blink at this panchasheel is to be unjust to the Constitution." In P.N. Kaushal v. Union of India it was observed as under : "We have no hesitation, in our hearts and our heads, to hold that every systematic, profit oriented activity however sinister, suppressive or socially diabolic, cannot ipso facto, exalt itself into a trade. Incorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice - social, economic and political shall inform all the institutions of the national life, is not idle print but command to action. We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women are not abused, that exploitation, moral and material, shall be extradited. In short, State action defending the weaker sections from social injustices and all forms of exploitation and raising the standard of living of the people necessarily imply that economic activities arrived as trade or business or commerce can be de-recognised as trade or business. At this point, the legal culture and the public morals of nation may merge, economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon dark and deadly dealings. At this point, the legal culture and the public morals of nation may merge, economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon dark and deadly dealings. The Constitutional refusal to consecrate exploitation as 'trade' in a Socialist Republic like ours argues itself." Justice Chennappa Reddy with equal vehemence emphasised importance of directive principles when he made following observations : "Before examining the rival contentions, we remained ourselves that the Constitution has expressed a deep concerned for the welfare of workers and has provided in Article 42 that the State shall make provision for securing just and human conditions of work and in Article 43 that the State shall endeavour to secure, by suitable legislation of economic organisation or in any other way, to all workers agriculture, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. They are among the "Directive Principles of State Policy.' The mandate of Article 37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertheless fundamental in the governance of the country', and it shall be the duty of the State to apply these principles in making laws. Addressed to Courts, what the injunction means is that while Courts are not free to direct to making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be over present in the minds of judges when interpreting status which concern themselves directly or indirectly with matters set out in the Directive Principles of the State Policy". The above brief resume and survey of researches of the important pronouncement of eminent judges In important and celebrated judgments would amply show that Directive Principles have been put at a very high pedestal. The earlier view that they are lofty ideals, luadable objects to be worshiped and admired only have undergone a radical change. The recent interpretation have unequivocally recognised them as command of the Constitution, command to action, casting a high duty of state to strive, never to forget them except at our own peril. 35. The earlier view that they are lofty ideals, luadable objects to be worshiped and admired only have undergone a radical change. The recent interpretation have unequivocally recognised them as command of the Constitution, command to action, casting a high duty of state to strive, never to forget them except at our own peril. 35. From rosy ideals they have become living and they are not utopian as used to be thought of in 50's and 60's 36. It is under the above latest realisation and objective assessment of Article 40, that this Court is required to test the validity of Section 9-A. In Kastoorilal v. State of J.&.K. , the Hon'ble Supreme Court has farther pointed out that directive principle? define the national aims and set forth the constitutional goals, standards or norms of reasonableness which must guide Government action. The Court observed that any action by the Government with a view to giving effect to any one or I more of the directive principles would ordinarily subject to any constitution or legal inhibitions or other supporting considerations, qualified for being regarded as reasonable, while an action which is inconsistent with or runs counter to a directive principle, would, prima facie incur the reproach of being unreasonable. 37. The court further emphasised that even the concept of public Interest must receive its orientation from the directive principles, and if any governmental action is calculated to implement or give effect to a principle, it would ordinarily subject to directive overriding considerations, be informed with public interest. 38. The court further held that whether any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. 39. A hare perusal of sub-section (9-A) after reading sub-section (9) and the relevant rules, would show that though elaborate provisions were therein the form of sub-section (9-A) and the relevant rule for transfer of the employees in the service of the Panchayat Samitis, it was on the basis of recognising the right of the Panchayat Samitis and Zila Parishads to govern their institution without interference from outside. In other words it was a sort of real democratised centralisation of power granting Independence and autonomy to the said institution, to govern themselves Most outside Interference. The authority to transfer was given to the Panchayat Samiti or Zila Parishad. The district-wise lists were to be prepared in the prescribed manner by District Establishment Committees constituted under sec. 88 and Selection Commissions. The recommendations of the Panchayat Samitis or Zila Parishads under whose administrative control they are for the time being and consultation with Panchayat Samitis or Zila Parishads under whose administrative control they are proposed to be transferred was also 'a condition precedent. In substance, sub-section (9) of sec. 86 truly implemented the object of Article 40 of the Constitution. 40. By introducing amendment of sec. (9-A) which is non-ostensible clause, the State Government assumed super-powers and also veto powers both to order transfers or to stay or cancel transfers against the express desire and directions of the elected representatives functioning in Panchayat Samiti and Zila Parishads. It was thus a case where instead of taking guidance for Art 40 for the limitations or guidelines of functioning of Panchayatrai sub-section (9-A) tries to undo whatever has been aimed at and enunciated by Article 40 of the Constitution. 41. Similarly, in respect of the wide, detailed and comprehensive search and research in the scheme of this Act and the various sections contained in it. this Court has failed to find out any guidelines or principles, formula or criteria, grounds or reasons, on the basis of which, the Government can exercise the' powers of transfers or cancelling transfers within the same district and outside their districts. 42. Since it is against Article 40 of the Constitution, and since no guidelines, principles or criteria can be spelt out from the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 and its provisions, there is no escape but to hold that the power of transfer given to the Government under sub-section (9-A) is unbridled. arbitrary, un-canalised, naked, unfettered and unlimited and by that, the Legislature has defaced itself and abdicated its function to the Government, which is not permissible under the Indian Constitution and more specially, Art 14 of the Constitution. 43. arbitrary, un-canalised, naked, unfettered and unlimited and by that, the Legislature has defaced itself and abdicated its function to the Government, which is not permissible under the Indian Constitution and more specially, Art 14 of the Constitution. 43. It would be pertinent that in the case of Hamdard Dawakhana v. Union of India, AIR 1960 S.C. 554 this vice of excessive delegation was artistically carved out by the Supreme Court when it observed as under:- "The question for decision then is, is the delegation constitutional in that the administrative authority has been supplied with proper guidance. In our view the words impugned are vague. Parliament has established no criteria no standards and has not prescribed any principle on which particular disease or condition is to be specified in the schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in S.3(d) must therefore is held to be going beyond permissible boundaries of valid delegation As a consequence the schedule in the rules must be struck down. But that would not affect such conditions and diseases which properly fall within the four causes of S. 3 excluding the portion of cl (d) which has been declared to be unconstitutional. We are of the opinion therefore that the words of any other disease or condition which may be specified on the rules and under this Act confer un-canalised and uncontrolled power to the executive and are therefore ultra vires." 44. While striking down section 5 of the Punjab General Sales Tax Act, 1948, as it f originally stood, the Supreme Court reiterated the same principle. The rate fixation was left to the sweet will of the Government and no guidance was provided. This was held to be legislature practically defacing itself by giving uncontrolled power to the Government It observed as under:- "The argument of the learned counsel that such a policy could be gathered from the constitutional provisions, cannot be accepted for if accepted, it would destroy the doctrine of excessive delegation It would also sanction conferment of power by legislature on the executive Government without laying down any guidelines in the Act. The minimum we expect of the legislature is to lay down in the Act conferring such a power of fixation of rates clear legislative policy or guidelines in that regard. As the Act did not prescribe any such policy, it must be held that sec. 5 of the Act, as it stood before the amendment was void." (M/s Devidas v. State of Punjab, AIR 1967 S.C. 1895 . Again in M/s Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 S.C. 691 , Hon'ble Supreme Court had occasion to consider sec. 37 wherein the Central Government was authorised to provide by order for removal of doubts or difficulties in giving effect to the provision-' of the Act. It was held that this was delegation of legislative authority itself and delegated authority cannot legislate. The Court observed:- "If in giving effect to the provisions of the Act any doubt or difficulty antes normally it is for the legislature to remove the doubt or difficulty. Power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that cannot be delegated to an executive authority...since by enacting that provision the Government is made the sole judge whether difficulty or doubt had arisen in giving effect to the provisions of the Act, whether it is necessary or expedient to remove the doubt or difficulty and whether the provisions enacted is not inconsistent with the purposes of the Act." 45. In case of grant of licenses Harakchand v. U.O.I., AIR 1970 S.C. 1453 the Hon'ble Supreme Court held that section 5(2)(b) is legislative in character and while holding it to be unconstitutional, gave the following reasons:- "It is manifest upon a review of all these provisions that the power conferred upon the administrator under sec. 5(2)(b) is legislative in character and extremely wide. A parallel power of subordinate legislation is conferred to the central Government under sec. 114(1) and (2) of the Act. But sec. 114(3) makes it incumbent upon the Central Government to place the rules before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions. 114(1) and (2) of the Act. But sec. 114(3) makes it incumbent upon the Central Government to place the rules before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions. In these circumstances, we are of the opinion that the power of regulation granted to the administrator under Sec. 5(2) (b) of the Act suffers from excessive delegation of legislative power and must be held to be constitutionally invalid." Section 2 of the East Punjab Movable Property (Requisitioning) Act came under challenge on similar objections as taken in the instant case that no guidelines have been laid down in the Act regarding the object or the purpose for which the State Government or the officers authorised by it may consider it necessary or expedient to requisition movable property. It was struck down and the Hon'ble Supreme Court observed as under:- "The Act confers uncontrolled power on the State Government or the officers authorised by it to requisition any movable property. No guidelines have been laid down regarding the object or the purpose for which it becomes necessary or expedient to requisition movable property. Even the authority requisitioning movable property is not required to specify the purpose for which it has become necessary or expedient to requisition that property. There is no provision in the Act that the power of requisitioning movable property can be exercised under the Act only for a public purpose nor is there any provision that powers under the Act can be exercised only in an emergency or in some special contingency. Hence the provisions of the Act violate Articles 14 and 19 of Constitution " Great emphasis has been laid by a series of recent judgments of the Supreme Court on necessity of enforcing rule of law by ensuring that arbitrary powers are not given to the Government or its officers. This has been emphasised as the very essence of rule of law. In this respect, the following weighty observations of the Hon'ble Supreme Court in R D. Shetty's case (supra) deserve special attention:- "It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interest of the individual. In this respect, the following weighty observations of the Hon'ble Supreme Court in R D. Shetty's case (supra) deserve special attention:- "It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interest of the individual. Every action of the Executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege." The plethora of precedents of the highest court of this country leaves one In no doubt that there has been judicial insistence consistently for restraining the executive from taking upon itself the legislative functioning under any grab or colour. Immediately after the founding fathers of the constitution provided equality and equal protection clause under Article 14 of the Constitution, the first celebrated judgment at the earliest opportunity was in Delhi Laws Case. Kania, C.J. as he then was with Saiyed Fazal Ali, Patanjali Sastri, Mahajan, D.K. Mukherjea, S. is. Das and Bose, JJ., constituted a special Constitutional Bench of the Supreme Court and principles of delegated legislation were exhaustively discussed. There has been a series of judgments of the Supreme Court interpreting the law laid down in this historical judgment which is a Magna Carta on delegated legislation. Kania, C.J. and Mahajan, J. held that section 7 of the Delhi Laws Act resulted in the legislatures virtual abdication of its legislative power in favour of the executive Giving of co-extensive legislative authorities to the executive was held to be abdication of legislative powers. Separate judgments wire given covering a vast constitutional debate and it is not necessary to enter into that for the purposes of the present case. Since I am not basing my judgment on Delhi Laws Case ( AIR 1951 S.C. 332 ) referred it only to emphasise that this controversy has been going on from fifties and the basic concept for determination whether the legislature has abdicated its functions by delegating its power which can be termed as legislative on account of giving unbridled discretion, is no more in doubt on account of a series of cases. I have referred to some of them above which are relevant or nearer to the provision of sub-section (9-A) of sec. 86 with which I am concerned. 46. Before I come to the deductions, it would be necessary to deal with the submissions of Mr. Shisodia in relation to this branch of the case. Mr. Shisodia came with a stock argument that since powers have been conferred on him ranking authority like the Government, it is sufficient answer to the challenge. He placed reliance upon decisions of A.I.R. 1950 S.C. 211, AIR. 1952 S. C. 737, A.I.R. 1956 S.C. 44 and A.I.R. 1971 S.C. 474. It is to be noted that in none of these eases, inspite of there being elaborate provisions for particular action sought to be taken like sub-section (9) and the relevant rules and the relevant rules in our ease, such a provision like (9-A) was in existence. It is also not without significance that sub-section (9) was in consonance with and carries out the manaate of Article 40 of the Constitution and in contraposition to it, sub-section (9) intends and aims at nullifying Article 40 and making it dead to that limited extent, of Panchayat Samiti's power as on institution of Local Self Government to manage, supervise and in that process, transfer its own employees. The decision cited by Mt. Shisodia, therefore, cannot be of any guidance and held for deciding the validity of sub-section (9-A) It is true that in a given case, one of the circumstances to weigh with cour: while declaring a section to be valid inspite of absence of guidance for exercising that power may be used to defend the challenge of excessive delegation but this cannot be viewed in isolation. One may ask what was the reason for introducing sub-section (9-A) by amendment inspite of sub-section (9) which provided autonomy to the Panchayat Samitis and Zila Parishads to manage their own affairs. There were several checks contained in sub-section (9) which says that the power of transfer is to be exercised by Panchayat Samiti or Zila Parishads after consultations and on recommendations of the transferring and transferor Samitis and Parishads and from the list prepared by bodies like Panchayat Service Commission and District Establishment Committees. There were several checks contained in sub-section (9) which says that the power of transfer is to be exercised by Panchayat Samiti or Zila Parishads after consultations and on recommendations of the transferring and transferor Samitis and Parishads and from the list prepared by bodies like Panchayat Service Commission and District Establishment Committees. This shows that several checks and balances were kept by the legislature in order to ensure fairness to the employees on the one hand and also to provide guidance to the Samities and Parishads while exercising those powers. An elaborate set of rules was also made to make sure that arbitrariness is not found in the actions and orders in this respect. It is not difficult to find the reasons for amendment by introduction of sub-section (9-A). The obvious, extent reason appears to be that the Government wonted to usurp these powers and keep them with itself so that it can control and command, dictate and order the Local Self Government institutions in spite of the tall claim of decentralisation and giving autonomy to the Panchayat Kai institutions. 47. Mr. Shisodia's submission that development is primarily the work and responsibility of the Government fails to cut any ice because when the founding fathers contemplated democratic decentralisation and empowering or authorising the Local Self Government institutions to be autonomous and independent in their fields, the Government cannot claim as the only authority and source of development work. As pointed out above, not now but even in the times of Lord Rippen in 1882 and when Mentague Chamsford reforms were introduced and the report of the Royal Commission was obtained, even the foreign Government which was by and large interested in having central and channelised power to itself and not give any powers to the Indians, did respect the limited independence of the local Government institutions. It was expected that after independence and enactment of Art. - 40 of the Constitution the legislatures of India would be conscious not to undermine Article 40 by abdicating its legislative functions to the Government. 48. It was expected that after independence and enactment of Art. - 40 of the Constitution the legislatures of India would be conscious not to undermine Article 40 by abdicating its legislative functions to the Government. 48. If the stock argument of the State Government based on some stray observations of the Supreme Court is pressed in service out of context that whenever the delegation is to the Government since the Government and its officers are very high ranking authorities, therefore, even in the absence of guidelines or guidance, the law would not be unconstitutional, is accepted as an Allaudin's lamp, for defending an un-defendable excessive delegation where the legislature defaces itself by giving uncontrolled, unbridled, arbitrary, naked powers to the executive, then the distinction between the legislation and subordinate legislation and legislation and delegated legislation would be wiped off, a situation which the Constitution never contemplated and which this court, as a watchdog of the Constitution, would never permit to happen. 49. The fact that even for primary school teachers working in the Primary Schools of the Panchayat Samitis and Parishads power of transfer, given by the legislature under sec. 86 (9) by one hand, have been taken away by amendment of sub-section (9-A ) by the other, only shows what poor homage the Rajasthan State has paid to Article 40. It is not intelligible as to why for even Primary School Teachers who are lowest in the ladder, the mighty State Government is required to decide the place of their posting by transferring them from one district to other district and within the district from one Panchayat Samiti to another. How can the requirement of the educational needs and the posting and transfer of teachers in a particular school run by the Panchayat Samiti can be better appreciated by the Secretary sitting at Jaipur in the Capital at a far distant place; is a phenomenon difficult to understand and appreciate Why the Panchayat Samiti and Zila Parishads who act on the basis of list prepared by the Panchayat Commissions and District Establishment Committees have been though to be incompetent for managing their own affairs even at the level of Primary School Teachers is a question which has not been answered by the State Government either in its reply or during the arguments 50. True it is that this Court cannot go into the sufficiency or insufficiency of the reasons which promoted the legislature nor it can have a probe into the wisdom of the legislature as legislative and judicial fields are well defined and cannot overlap, nonetheless, when the stock argument of guidance being found from the scheme of the Act is made, or justification of the delegation is made on the ground of the authority being the Government, then these questions had assumed importance and cannot be ignored. After all, was it not the State Government which was required to decide the rate of tax in the Punjab State Tax Act ? and even then, the Supreme Court struck it down on the ground of vice of exessive delegation. Again, was it not the State Government and its important officers who were required to order requisition or acquisition in the East Punjab Movable Property (Requisition) Act, 1947 ? But even then, it was struck down by the Supreme Court as unconstitutional. Again, was it not the authority given to the important officers under the Gold Control Order ? But still the provision was struck down by the Hon'ble Supreme Court It is not necessary to multiply the cases as I have extracted some of them in the earlier part of my judgment and reproduction can be avoided Suffice it to say that I am not impressed by the stock argument of the State that because tine power of transfer has been given to the State Government, therefore, that alone should be sufficient to repel the challenge of excessive delegation of the legislature defacing itself by delegating legislative functions to the Government, as this stock argument in itself is neither sufficient nor legally tenable for repelling the voice of excessive delegation in the instant case. 51. I have also emphasised that in the instant case, there is another feature that two parallel sub-sections have been provided in section 86 in he form of sub-section (9) and sub-section (9-A). 51. I have also emphasised that in the instant case, there is another feature that two parallel sub-sections have been provided in section 86 in he form of sub-section (9) and sub-section (9-A). I have discussed in details the implications and import of these two sub-sections and I am convinced that on this ground also, because sub-section (9-A) provides a special category and clause permitting the Government to transfer, in contraposition to the safeguards in sub-section (9), where the Panchayat Samitis and Zila Parishads can make transfers from the list of the employees maintained by the Commission or District Establishment Committee, the provisions of sub-section (9-A) are further liable to be struck down on the ground that it is discriminatory under Article 14 of the Constitution and the classification so made is not based on any intelligible differentia and has got no nexus with the object of the law which is sought to be achieved. The object of Panchayat legislation is, I may hasten to say, on the one band in democratic decentralisation of the power and the development of the Local Self Government Institutions and on the other hand, development of the rural areas and administration in those areas by the Panchayats. Both the objectives cannot be achieved by this discrimination or classification or class legislation. Contrary to it, I am constrained to observe that it is antithesis of and undoing of not only the directive principles contained in Article 40 of the Constitution, which aims at democratic decentralisation and giving of independent powers to the Local Self Government Institutions but also to the object of the framing of the Rajasthan Panchayat Samitis and Zila Parishads Act by which, at the lower level of the rural areas, Panchayats were supposed to govern and manage their own affairs in the best interest of the village community. The fact is that the development at the hands of the village Panchayats would not get added strength by the super powers given to the Government and the veto powers inherent in it for either transfer or cancel the transfers of Primary Schools Teachers, lowest in the ladder, working in distant villages and 'Dhanis' of Rajasthan I have, therefore, got no hesitation in holding that sub-section (9-A) of section of the Act is ultra vires, being hit by the vice of excessive delegation and also being in violation of Article 14 of the Constitution. 52. The result is that all these writ petitions are accepted. Sub-lection (9-A) of sec. 86 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is declared ultra ires and is struck down for the same reason. The impugned orders of transfers having been passed under sub-section (9-A) which has been held to be ultra vires, are also quashed in their entirety. The petitioners would get their costs from the respondents in all these cases.Petitions accepted. *******