Ram Kishore Sharma v. Zila Parishad, Jodhpur — 1993 DIGILAW 41 (RAJ)

Honble CHOPRA, J.— These six writ petitions raise common questions of law and are based on identical facts and therefore, they were heard together and are being decided by a common order/Judgment. (2) The facts necessary to be noticed for the disposal of these six writ petitions briefly stated are : (1) FACTS OF RAMKISHORE SHARMAS CASE : The case of the petitioner is that he was initially appointed as Gram Sewak-cum-Secretary with effect from 30.7.1977 in Panchayat Samiti, Simbalwada District Doongarpur. Thereafter, he was transferred to Panchayat Samiti, Shahpura (District Jaipur) and from there, he has been transferred to Panchayat Samiti, Bhopalgarh on the same post with effect from 30.11.1983. It is alleged that now he has been transferred to Panchayat Samiti, Osian vide order Annexure P.l dated 30.7.1992 and has already been relieved to join his new place of posting. It is this order, which is under challenge in this writ petition. (2) FACTS OF CHHOTU SINGHS CASE : Petitioner Chhotusingh was initially appointed as Gram Sewak-cum-Secretary with effect from 30.8.1962 in Panchayat Samiti, Balesar, District Jodhpur. Thereafter, in the year 1965, he was transferred to Panchayat Samiti, Luni. He was then transferred to Panchayat Samiti, Shergarh in the year 1977 and he remained there for about 9 months. He was again transferred to Panchayat Samiti, Luni in the year 1978 and is continuously working there on the post of Gram Sewak cum-Secretary. It is alleged that by order Annexure-P.1 dated 30.7.1992, he has now been transferred to Panchayat Samiti, Mandore. He has challenged the order Annexure-P.1 dated 30.7.1992, whereby he has been transferred to Panchayat Samiti, Mandore. (3) FACTS OF BABU LAL PAREEKS CASE: It is alleged that the petitioner was initially appointed as Lower Division Clerk with effect from 2.4.1968 in Panchayat Samiti, Balesar and he was, thereafter, transferred to various Panchayat Samities but ultimately, he came to be posted in Panchayat Samiti, Luni with effect from 22.10.1985 and is working there on the same post since then. He also stands transferred to Panchayat Samiti, Mandore vide order Annexure-P.1 dated 30.7.1992 and has been relieved to join his new place of posting. He also stands transferred to Panchayat Samiti, Mandore vide order Annexure-P.1 dated 30.7.1992 and has been relieved to join his new place of posting. (4) FACTS OF GANGA SINGHS CASE: Petitioner Ganga Singh was initially appointed on the post of Gram Sewak with effect from 23.12.1988 and was posted in Panchayat Samiti, Shergarh, from there, he has been transferred to Panchayat Samiti, Luni vide order Annexure P.l dated 30.7.1992. He has been relieved to- join his new place of posting. (5) FACTS OF SURENDRANATH ARORAS CASE: The case of the petitioner is that he was initially appointed as Teacher IIIrd Grade with effect from 8.7.1992 in Panchayat Samiti, Bap and is working since then. It is alleged that by order Annexure-P.1 dated 30.7.1992, he has been transferred to Panchayat Samiti, Mandore and has been relieved to join his new place of posting. (6) GULAB SINGHS CASE: It is alleged that the petitioner was initially appointed as Lower Division Clerk with effect from 9.1.1968 in Panchayat Samiti, Bilara. It is alleged that while he was working as L.D.C. in Panchayat Samiti, Bilara, he has been confirmed on the pot of L.D.C. It is further alleged that thereafter, the petitioner was transferred to Panchayat Samiti, Bap with effect from 25.9.1971, and from there, he was transferred to Panchayat Samiti, Rohat in the month of March 1971 on the post of Gram Sewak. However, he was again transferred on the post of Lower Division Clerk in the month of June 1979 in Panchayat Samiti, Bap and is working there since then. It is alleged that by order Annexure-P.1 dated 30.7.1992, he has been now transferred to Panchayat Samiti Phalodi and has been relieved to join his new place of posting. (3) According to the petitioners, the Secretary, District Establishment Committee has no powers to transfer them from one Panchayat Samiti to another Panchayat Samiti because it is a case of routine transfer but not a case of transfer by appointment and it results in the change of employer, which is not permissible by the Rules. It was further contended that the Panchayat Samities, where they have been transferred, have not determined any vacancies as per Rule 8 of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 (for short the Rules herein) and therefore, it is a case of routine transfer and not a transfer by appointment. It was further contended that the Panchayat Samities, where they have been transferred, have not determined any vacancies as per Rule 8 of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 (for short the Rules herein) and therefore, it is a case of routine transfer and not a transfer by appointment. The contention of the petitioners is that the Panchayat Samiti being an autonomous body, its prior consultation was essential and since before their transfers, their respective Panchayat Samities were not consulted, these transfers are violative of R. 28 of the Rules as also the provisions of s. 86 (9) of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959 (hereinafter to be referred as the Act). They have further submitted that before their transfers, they were also not consulted and these transfers are also violative of the provisions of R. 6 of the Rules and S. 86 (5) of the Act. (4) They have submitted that the provisions of R. 28 of the Rules cannot override the provisions of ss.86 and 89 of the Act. According to them, transferring them from one Panchayat Samiti to another Panchayat Samiti by the Secretary, District Establishment Committee is a fraud on the provisions of the Act and the Rules and it is also malicious in character and, therefore, they have filed these writ petitions to quash these transfer orders, although they have been relieved to join their new places of postings. (5) A reply to the writ petition has been filed on behalf of the respondents in the writ petition filed by Shri Surendranath Arora, wherein it has been contended that before issuing these transfer orders, the concerned Panchayat Samities were consulted. According to the respondents, before making transfer of an employee, it is not necessary to take his consent. It was further submitted that the powers of the State Govt. to transfer any member of the Service from one Panchayat Samiti to another Panchayat Samiti in the same District under Sec. 86 (9A) of the Act have been delegated by the State Govt. to the Secretary, District Establishment Committee under s. 84 (2) of the Act vide Notification No. F. 2 (5) Gramin/P.Raj/C.E.0/89/48 dated 19.1.1990 issued by the Director-cum-Special Secretary to the Govt., Gramin Vikas and Panchayati Raj. Department, Govt. of Rajasthan, Jaipur and, therefore, these transfers are absolutely valid and the petitioners are entitled to no relief. to the Secretary, District Establishment Committee under s. 84 (2) of the Act vide Notification No. F. 2 (5) Gramin/P.Raj/C.E.0/89/48 dated 19.1.1990 issued by the Director-cum-Special Secretary to the Govt., Gramin Vikas and Panchayati Raj. Department, Govt. of Rajasthan, Jaipur and, therefore, these transfers are absolutely valid and the petitioners are entitled to no relief. (6) It was submitted that a member of Zila Parishad and Panchayat Service can be transferred from one Panchayat Samiti to another Panchayat Samiti for administrative reasons and this question came up for consideration before a Division Bench of this Court in State of Rajasthan vs. Ram Pratap & 29 Others (1), wherein it has been held that the conferment of powers on Govt. to make intra-District and inter- District transfers is not bad and s. 86 (9-A) of the Act is valid and constitutional. (7) According to the respondents, ever since his selection, the petitioner Surendra Nath Arora remained posted at Bap. It was further submitted that there were some complaints against him and therefore, he has been transferred. (8) I have heard Mr. P.P. Choudhary, the learned counsel appearing for the petitioners and Mr. Vijay Bishnoi, the learned counsel appearing for the respondents and have carefully gone through the record of the case. (9) Mr. P.P. Choudhary, the learned counsel appearing for the petitioners has contended that Panchayat Samities are autonomous bodies and the petitioners are the employees of the Panchayat Samities as per the provisions of S. 86 read with Ss. 31 and 60, of the Act. According to Mr. Choudhary, the learned counsel appearing for the petitioners, there are only three modes of appointments, which have been provided in s. 86 (5) of the Act, which are : (a) appointment by direct recruitment; or (b) appointment by promotion, or (c) appointment by transfer. According to him, it is not a case of appointment by transfer but it is a case of routine transfer and therefore, it is not covered by the provisions of S. 86 (5) of the Act. (10) It was further contended by Mr. According to him, it is not a case of appointment by transfer but it is a case of routine transfer and therefore, it is not covered by the provisions of S. 86 (5) of the Act. (10) It was further contended by Mr. P.P. Choudhary, the learned counsel appearing for the petitioners that as per s. 86 (9) (ii) of the Act, appointments by transfer can be made after consultation with the Pradhans or the Pramukhs, as the case may be, of the Panchayat Samities or Zila Parishads, from and to which such transfers are proposed to be made. He has submitted that in these cases before transferring the petitioners, no such consultation with the Pradhans or Pramukhs, as the case may be, of the Panchayat Samities or Zila Parishads, from and to which such transfers were made, has been made and therefore, these transfers cannot be sustained because they violate not only the autonomy of the Panchayat Samities but they are violative of the provisions of the Act and the Rules. (11) Mr. P.P. Choudhary, the learned counsel appearing for the petitioners has drawn my attention to a Division Bench decision of this Court rendered in Chhaganlal vs. State of Rajasthan & Ors. (2), wherein while relying on a decision of their lordships of the Supreme Court in General Officer Commanding-in-Chief & Anr. vs. Dr. Subhash Chandra Yadav & Anr. (3) and Jawaharlal Nehru University vs. K.S. Jawatkar (4), it was held that the Municipalities are autonomous bodies and, therefore, transfer of the employees of the Municipalities from one Municipality to another Municipality or from one Municipal Council to another Municipal Council affects their autonomy and therefore, such transfers are bad. It was further held that there are three kinks of services under the Rajasthan Municipalities Act, 1959 and they are : (i) Rajasthan Municipal Service; (ii) Rajasthan Municipal Subordinate and Ministerial Service; and (iii) Rajasthan Municipalities Class IV Service. It was further held that so far as the State Service is concerned, it is governed by the Rajasthan Municipal Service Rules, 1963 as aforesaid and likewise, the service conditions of subordinate and ministerial staff is governed by the Rajasthan Municipal Subordinate & Ministerial Service Rules, 1963 and the service conditions of Class IV staff is concerned, they are governed by the Rajasthan Municipalities (Class IV) Service Rules, 1964. The appointing authority for the State Service is the Government and the appointing authority in the case of subordinate, ministerial and Class IV services is the Municipal Boards/Councils, as the case may be, and therefore, r. 38 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 as also r. 20 of the Rajasthan Municipalities (Class IV) Service Rules, 1964 are violative of the provisions of S. 304 (3) of the Rajasthan Municipalities Act, 1959 because the Rajasthan Municipalities Act itself confers no powers on the State Govt. to make transfers of the members of the Ministerial and Class IV Service. It was further held as under: "It is also true that the subordinate, ministerial and Class IV employees under the various service Rules framed by the State Govt. as aforesaid are recruited and appointed by the Municipal Boards. It is such Municipal Board or Council, as the case may be, which is the appointing authority for ministerial, subordinate and Class IV staff. Therefore, an employee be a member of the subordinate or ministerial or Class IV cannot be transferred from one Municipal Board to another Municipal Boards as each Municipal Board is the appointing authority and when the incumbent is transferred from one Municipal Board to another Municipal Board that will amount to change of master without the consent of the employee. Incidentally, it will also amount to termination of his services from one Municipal Board and appointment in another Municipal Board." In para 21 of the judgment in Chhaganlals case, it was mentioned by the learned Judges of the Division Bench that their attention was invited to a Division Bench decision of this Court in State of Rajasthan v. Ram Pratap & 9 Ors. (supra) and in para 22 of the Judgment in Chhaganlals case (supra), it was held that in view of the decision of their Lordships of the Supreme Court in GOC-in Chief (supra), all earlier judgments of this Court cannot hold good any more. It was, therefore, contended by Mr. P.P. Choudhary, the learned counsel appearing for the petitioners that the earlier Division Bench decision in State of Rajasthans case (supra) does not lay down the correct law and, therefore, that decision, which empowers the State Govt. to make inter-Panchayat Samities, inter-Zila Parishads and inter-district transfers does not lay down the correct law. (12) It was next contended by Mr. P.P. Choudhary, the learned counsel appearing for the petitioners that the earlier Division Bench decision in State of Rajasthans case (supra) does not lay down the correct law and, therefore, that decision, which empowers the State Govt. to make inter-Panchayat Samities, inter-Zila Parishads and inter-district transfers does not lay down the correct law. (12) It was next contended by Mr. P.P. Choudhary, the learned counsel appearing for the petitioners that s. 86 (5) of the Act permits only such transfers, which result in appointment. It does not confer any powers on the Panchayat Samities or Zila Parishads or District Establishment Committees or the State Govt. to make routine transfers. In support of this argument, Mr. Choudhary, the learned counsel appearing for the petitioners has drawn my attention to a decision of this Court in Rameshwar Prasad Dixit & Anr. vs. State of Rajasthan & Ors. (5), which has been followed in a subsequent decision of this Court in Mohan Prasad & Ors. vs. Zila Parishad, Jodhpur & Ors. (6), decided on August 25, 1992. (13) In Rameshwar Pd. Dixits case (supra), a learned single Judge of this Court had an occasion to consider the scope of r. 28 of the Rules. In that case, the petitioners were Gram Sevaks and ex- officio-Secretaries of the Gram Panchayats in substantive capacity. They were transferred from one Panchayat Samiti to another Panchayat Samiti vide order dated 30.8.1989. The question that arose for consideration was whether such transfers on administrative grounds were permissible. The learned single Judge held that such transfers are not permissible because such transfers are not only violative of s. 86 of the Act but they are also violative of r. 28 of the Rules and therefore, those transfers were quashed. In that case, a technical view was taken that such transfers are only permissible for making appointment to the Service against vacancies but no routine transfer powers are conferred on the Panchayat Samities or Zila Parishads or District Establishment Committees. In that case, a technical view was taken that such transfers are only permissible for making appointment to the Service against vacancies but no routine transfer powers are conferred on the Panchayat Samities or Zila Parishads or District Establishment Committees. It was also held that sub-s. (9) of s. 86 deals with appointments by promotion or transfer of incumbents holding posts encadred in the Service, which shall be governed by the Rules made in this behalf and may be ordered by the Panchayat Samiti or Zila Parishad, as the case may be, from amongst persons entered in district-wise lists in prescribed manner (a) in the case of promotions or transfers within the same district by the District Establishment Committee constituted under s. 88; and (b) in the case of other transfers, by the Selection Commission constituted under sub-s. (6) on the recommendation of the Panchayat Samiti or the Zila Parishad, under whose administrative control they are for the time being and 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 was thus held that s. 86 of the Act also permits appointments by promotion or transfers and not transfer simplicitor. (14) Rameshwar Pd. Dixits case (supra) was followed in Mohan Pd.s case (supra), wherein it was also held that Zila Parishad has no power to make transfer in a routine manner unless that results in appointment. (15) It was also contended by Mr. P.P. Choudhary, the learned counsel appearing for the petitioners that the transfer orders are non-speaking orders and it has been stated in these transfer orders that these transfers are ordered on account of administrative reasons. According to Mr. Choudhary, the contention of the respondents that these transfers have been made in exercise of the powers of the State Govt. conferred on the Secretary, District Establishment Committee or the Secretary, Zila Parishad cannot be sustained because no such mention has been made in the transfer orders. In this respect, Mr. According to Mr. Choudhary, the contention of the respondents that these transfers have been made in exercise of the powers of the State Govt. conferred on the Secretary, District Establishment Committee or the Secretary, Zila Parishad cannot be sustained because no such mention has been made in the transfer orders. In this respect, Mr. Choudhary has placed reliance on a decision of their lordships of the Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner (7), wherein it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It was observed as under: — "Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanjis case ( AIR 1952 SC 16 ): "Public orders, publicly made, in exercise of the statutory authority cannot be construed in the light of explanations subsequently given by the Officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public Orders made by Public authorities are meant to have public effect and are intended to affect the actings are conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." (16) Mr. Vijay Bishnoi, the learned counsel appearing for the respondents has vehemently opposed these submissions. He has contended that the learned single Judge, who has decided Rameshwar Pd. Dixits case(supra) has not taken into consideration the earlier two decisions of the Division Benches of this Court in Prem Singh vs. State of Rajasthan (8) and State vs. Ram Pratap (supra) as also a single Bench decision of this court in Makhanlal vs. State of Rajasthan (9), wherein the validity of the provisions of Ss. 86 (9) and 86 (9-A) of the Act has been upheld and it has been categorically held that the State Govt. as also the Zila Parishads or Panchayat Samities have general power of transfers. These decisions have not been noticed by the learned single Judge in Rameshwar Pd. 86 (9) and 86 (9-A) of the Act has been upheld and it has been categorically held that the State Govt. as also the Zila Parishads or Panchayat Samities have general power of transfers. These decisions have not been noticed by the learned single Judge in Rameshwar Pd. Dixits case (supra) and, therefore, the decision in Rameshwar Pd. Dixits case is per in curium and it does not lay down the correct law. (17) It was further contended by Mr. Bishnoi that Mohan Pd.s case (supra) has also been decided on the ratio of the decision in Rameshwar Pd. Dixits case (supra) and therefore, the decision in Mohan Pd.s case (supra) has also to be ignored because these decisions do not lay down the correct law and they are against the Division Bench decisions of this Court in Premsinghs case (supra) and State of Rajasthans case (supra). (18) The contention of Mr. Vijay Bishnoi, the learned counsel appearing for the respondents is that the observations made by the Division Bench in para 22 of its judgment in Chhanganlals case (supra) are obiter dicta because the Division Bench was dealing with the cases of Municipal Boards/Councils and it has held that Municipal Boards/ Councils are autonomous bodies and that r. 38 of the Rajasthan Subordinate and Ministerial Service Rules, 1963 and r. 29 of the Rajasthan Municipalities Class IV Service Rules, 1964 are violative of the provisions of s. 304 (3) of the Rajasthan Municipalities Act, 1959 and therefore, no such rules can be framed against the provisions of the Act. Mr. Mr. Bishnoi has submitted that while making these observations, neither the provisions of the Rajasthan Panchayat Samities and Zila Parishads Act nor the provisions of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 were considered and even the decision rendered in State of Rajasthans case (supra), in which the challenge to the validity of sub-s. (9A) of s. 86 of the Act was not specifically dealt with and the reasons stated therein on the basis of which the validity of s. 86 (9-A) of the Act has been upheld were neither discussed nor dealt with and, therefore, these observations made by the Division Bench in Chhagan Lals case (supra) cannot hold good for total non-application of mind as regards the reasons which prevailed with the learned Judges of the Division Bench in State of Rajasthans case(supra) which is a direct authority on the subject. These observations are at best obiter dicta and they simply cannot overrule the decisions of the two Division Benches of this court wherein the validity of s. 86 (9-A) of the Act has been upheld and a general power of transfer vested in different organizations of the Panchayati Raj has been recognised. (19) I have bestowed my most earnest consideration to the rival submissions made at the bar and I am firmly of the view that the submissions made by Mr. Vijay Bishnoi, the learned counsel appearing for the respondents deserve to be sustained and the contentions raised by Mr. P.P. Choudhary, the learned counsel for the petitioners cannot be accepted. (20) In the matter of Ramprataps case, when the matter was considered by the learned single Judge, the learned single Judge held that the provisions of s. 86 (9-A) of the Act are ultra-vires. The State of Rajasthan, therefore, came up in appeal before a Division Bench of this Court and the learned Division Bench after dealing with the provisions of the Act and the Rules came to a definite finding that the observations of the learned single Judge that the Panchayat Samities and Zila Parishads enjoy absolute autonomy and any intervention of the State Govt. in their affairs is unwarranted, is wholly misplaced. in their affairs is unwarranted, is wholly misplaced. After surveying the provisions of the Act and the Rules, it was held by the learned Judges of the Division Bench presided over by Honble the then Chief Justice Shri J.S. Verma that neither these bodies enjoy full autonomy nor the State Govt. is an alien. The very object of the Act was to establish the hierarchy of administration, the basic unit being the Gram Panchayat, over it the Panchayat Samiti, still higher the Zila Parishad and at the apex, the State Govt. Thus, the powers conferred on the State Govt. by sub- s. (9A) is not something unusual out of proportions or de-hors the scheme of the Act. The right to transfer member of the service is an important attribute of the Executive power and is considered essential to maintain efficiency and cleanliness in administration. These provisions are neither against the Constitution nor it is a case of an excessive delegation of legislative power. Thus, the right of general transfer of a member of the Service was treated to be an important attribute of the executive power, which was held to be essential to maintain efficiency and cleanliness of the administration. It appears that the Division Bench decision of this Court in State of Rajasthan vs. Ram Pratap (Supra) was not brought to the notice of the learned single Judge, who decided Rameshwar Pd. Dixits case as also Mohan Pd.s case (supra). (21) Similarly, a Division Bench of this Court in Premsinghs case (supra) took the view that the Panchayat Samities and Zila Parishads have general powers of transfers. The District Establishment Committee, of course, is a recommending body. In Premsinghs case (supra), the Division Bench was considering the earlier provision of s. 86 (9) of the Act, which has now been substituted by new provisions. Be that as it may, in para 10 of the judgment, the Division Bench has held that r. 28 of the Rules cannot stretch to prohibit the consideration of the transfers by the District Establishment Committee. Final authority vests in the Panchayat Samiti and the District Establishment Committee can make a request to the Panchayat Samiti and the Panchayat Samiti may after taking into consideration, the suggestion made by any authority, effect the transfer. Final authority vests in the Panchayat Samiti and the District Establishment Committee can make a request to the Panchayat Samiti and the Panchayat Samiti may after taking into consideration, the suggestion made by any authority, effect the transfer. In para 11 of the judgment, the Division Bench has further held that it is well settled that while exercising the discretionary power under Art. 226 of the Constitution, every illegality or irregularity is not to be corrected unless there is a substantial failure of justice. The mere transfer of a person from one Panchayat Samiti to other Panchayat Samiti cannot be said to be the substantial failure of justice. (22) Be that as it may, I may state here that the provisions of the Rajasthan Municipalities Act, 1959 are not analogous to the provisions of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959 and the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959. While dealing with the provisions of the Act and the Rules, it has been held by the Division Bench in State of Rajasthan vs. Ram Prataps case (supra) as under : — "Under Sec. 23, every Panchayat Samiti is enjoined to perform the functions specified in the schedule and the State Govt. is empowered to entrust such other powers and functions to the Panchayat Samiti as are needed for carrying out the purposes of the Act. For each Panchayat Samiti, a Vikas Adhikari and Extension Officer are to be appointed and s. 26 gives the power to appoint such officers to the State Govt. S. 31 lays down that the strength of posts for a Panchayat Samiti shall be fixed by the State Govt. and the scales of pay; allowances and other conditions of service of the persons appointed to such posts shall also be prescribed by the State Govt. If a Panchayat Samiti thinks it necessary to create additional post, it can be done only with the prior approval of the State Govt. Under s. 33, a Panchayat Samiti has been given the power to impose the levy, certain taxes but if such a tax is on trades, callings , professions and industries, the same can be levied only subject to any general or special order of the State Govt. Ss. 34 to 38 deals with financial matters and the Panchayat Samiti Act under strict control of the State Govt. Ss. 34 to 38 deals with financial matters and the Panchayat Samiti Act under strict control of the State Govt. S. 40 confers on the State Govt. the power to spend and remove the Pradhan, Up-Pradhan and any member of the Panchayat Samiti, if they omit or refuse to carry out the orders of the State Govt. for the proper working of the Panchayat Samiti or abuse the powers vested in them or found guilty of misconduct in the discharge of their duties. Similar is the position in the Act as regards the Zila Parishads. S. 42 empowers the State Govt. to constitute a Zila Parishad for District. S. 46 prescribes the terms of the Zila Parishad as five years but the State Govt. is competent to extend the term from time to time by a period not exceeding 4 years in the aggregate. S. 53 entitles the District Development Officer to attend the meetings of the Sub-Committees of the Zila Parishad. S. 57 prescribes the power and functions of the Zila Parishad. Sub-s. (v) authorises the State Govt. to confer or entrust such other powers or functions on the Zila Parishad in relation to any development programme. Ss. 62 to 6.5 deal with the finances of the Zila Parishads and District controls vests in the State Govt. in these matters. S. 66 empowers the State Govt. to cancel any resolution or order passed by a Panchayat Samiti and S. 66-A authorises it to fix the performance of any duty imposed upon it by or under the Act. S. 67 empowers the State Govt. to supersede or dissolve a Panchayat Samiti or Zila Parishad. S. 74 enjoins a Panchayat Samiti to furnish its administrative report to the Zila Parishad and a Zila Parishad to the State Govt. S. 78 confers on the State Govt. the power to amend the schedule which contains the functions of the Panchayat Samiti. Under s. 79, the State Govt. is vested with the power to frame rules for carrying out the purposes of the Act. Under. 80 of the Panchayat Samiti and the Zila Parishads Act, the Panchayat Samities and Zila Parishads have been empowered to make its bye-laws but these bye-laws do not take effect unless sanctioned by the State Govt. S. 85 confers the power of the review and revision in the State Govt. Under. 80 of the Panchayat Samiti and the Zila Parishads Act, the Panchayat Samities and Zila Parishads have been empowered to make its bye-laws but these bye-laws do not take effect unless sanctioned by the State Govt. S. 85 confers the power of the review and revision in the State Govt. to call for and examine the record of a Panchayat Samiti or a Zila Parishad to satisfy as to the correctness, legality or propriety of any decision or order passed therein. Ss. 86 to 88 deal with the Panchayat Service and s. 89 prescribes the mode of disciplinary proceedings against the Officers and servants of the Panchayat. The ultimate appeal in such matters lies to the State Govt. S. 90 provides that if any dispute arises between two Panchayat Samities or between the two Zila Parishads, the same has to be referred to and decided by the State Govt. Under s. 91, the State Govt. is given the power to pass any order which may be necessary for removing the difficulty which arises in giving effect to the provisions of this Act. The aforesaid survey of the relevant provisions shows that while entrusting the Panchayat Samiti and Zila Parishads with certain powers and functions, the legislature has prescribed effective control by the State Govt. over these bodies." (23) In addition to this, the provisions of ss. 31 and 60 and several other provisions of the Act, which have been noticed by the Division Bench in State of Rajasthans case (supra), S. 86 (1) of the Act clearly provides that there shall be constituted for the State a Service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service. Thus, the Service has to be constituted for the State, which can be divided into different categories as per s. 86 (2) of the Act. Sub. s. (3) of s. 86 provides that the State Govt. may en-cadre in the Service any other category or grade of Officers and employees of Panchayat Samities and Zila Parishads not included in Class IV Services. S. 86 (5) of the Act further provides that except for first appointment to posts in the Service referred to in sub-s. (5) of s. 31, all appointments to posts in the Service shall be made in accordance with the provisions of ss. 31 and 60: (a) by direct recruitment, or (b) by promotion, or (c) by transfer. S. 86 (5) of the Act further provides that except for first appointment to posts in the Service referred to in sub-s. (5) of s. 31, all appointments to posts in the Service shall be made in accordance with the provisions of ss. 31 and 60: (a) by direct recruitment, or (b) by promotion, or (c) by transfer. Sub-s. (6) of s. 86 of the Act provides that appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Govt. from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub. s. (1) of s. 88. Thus, it is clear that recruitments are to be made district-wise and seniority also is to be maintained district-wise and not Panchayat Samiti-wise. In this respect, I may place reliance not only on the provisions of the Rules but I am strengthened by certain observations made by a learned single Judge of this Court in Makhanlals case (supra). (24) Rule 2(k) of the Rules provides that Service means the Rajasthan Panchayat Samities and Zila Parishads Service, which will be constituted for the entire State as per sub-s. (1) of s. 86 of the Act. R. 2 (i) of the Rules lays down that member of the Service means a person appointed substantively to a post in the Service under the provisions of these Rules. R. 4 provides categories of posts, which have been included in the Service and r. 6 relates to the sources of recruitment. It provides that vacancies after the commencement of these Rules shall be filled: (a) by direct recruitment in the lowest grade of each category, (b) by promotion from a lower to a higher grade in the same category, and (c) by transfer of persons holding corresponding posts under a Panchayat Samiti, Parishad or Government; provided that no government servant shall be transferred to the Service without his prior consent. R. 18 provides for recommendations of the Commission and it reads as under: — "R. 18. R. 18 provides for recommendations of the Commission and it reads as under: — "R. 18. Recommendations of the Commission - (1) The Commission shall prepare a district wise merit list of candidates considered suitable for appointment to each grade or category of posts in the District and forward the list to the District Establishment Committee of the District concerned. Provided: (i) that the number of candidates in the merit list prepared by the Commission shall not exceed one and a half times the number of vacancies actually available at the time such merit list is prepared. (ii) that the merit list of candidates prepared shall remain valid for a period of six months from the date of its preparation. After expiry of such period it will be deemed to have lapsed. (2) The District Establishment Committee, shall, on receipt of a requisition from the Panchayat Samities or Zila Parishads, allot candidates from the list in the order in which their names occur in the list. The Panchayat Samiti or the Zila Parishads shall take into consideration the requirements of r. 7 while sending their requisitions to the District Establishment Committee." (25) Thus, it is clear that selection shall be made district-wise and the merit list also shall be prepared district-wise and then the Commission shall forward that list to the District Establishment Committee of the district concerned and the concerned District Establishment Committee in its turn shall on receipt of requisition from the Panchayat Samities or Zila Parishads allot candidates from the list in the order in which their names occur in the list. (26) R. 18-A provides for allotment by the State Govt. and it reads as under: — "R.18-A, Allotment by the State Govt. - (1) (i) The State Govt. may allot candidates in order of merit, from the list of a district, where there are no vacancies; to another district where there may be vacancies for appointment : provided that the candidates are not available in the district-wise merit list of the latter district." (27) This clearly shows that the Service is for the entire State. The selection is to be made district-wise and the merit list also is to be prepared district wise and then it is to be forwarded to the District Establishment Committee of the District concerned. The selection is to be made district-wise and the merit list also is to be prepared district wise and then it is to be forwarded to the District Establishment Committee of the District concerned. The concerned District Establishment Committee shall on receipt of requisition from the Panchayat Samities or Zila Parishads, allot candidates from the list in the order in which their names occur in the list and the State Govt. may also allot candidates in order of merit, from that list of a district where there are no vacancies, to another district where there may be vacancies for appointment provided that the candidates are not available in the district-wise merit list of the latter district. (28) R. 20 deals with criteria for selection and it provides that for purposes of promotion, a selection on the basis of seniority-cum-merit shall be made from amongst the members of the Service serving in the District eligible for such promotion in accordance with the provisions of columns 5 and 6 of the Schedule. Thus, it is further clear that for the purposes of promotion, selection shall be made on the basis of seniority-cum-merit from amongst the members of the Service in the District eligible for such promotion, meaning thereby that the seniority is to be maintained district-wise and not Panchayat Samiti-wise. R. 21 provides procedure for selection . As per r. 21, whenever vacancies in various grades and categories of Service in the District are to be filled by promotion, the Committee shall invite recommendations from the Panchayat Samities or Zila Parishads and after taking into consideration the recommendations received and the annual confidential reports and other service records of persons recommended for promotion, and those proposed to be superseded, prepare district-wise list of persons suitable for promotion in the grade and category in order of seniority, giving reasons for supersession of person, if any. Thus, even for consideration of persons for giving promotions out of the persons in the service of each category, the recommendations have to be invited from the Panchayat Samities and Zila Parishads and a district-wise list of persons entitled to be promoted has to be prepared. Such list is not to be prepared Panchayat Samiti-wise or Zila Parishad wise. Thus, even for consideration of persons for giving promotions out of the persons in the service of each category, the recommendations have to be invited from the Panchayat Samities and Zila Parishads and a district-wise list of persons entitled to be promoted has to be prepared. Such list is not to be prepared Panchayat Samiti-wise or Zila Parishad wise. R. 22 lays down that on receipt of requisitions from the Panchayat Samities or Zila Parishads, the Committee shall allot persons from the district-wise list, in the same order in which their names occur in the list and the Panchayat Samities or Zila Parishads shall on receipt of the allotment from the Committee appoint the persons so allotted to the post for which they are selected in order of merit by the Committee. (29) R. 22-A of the Rules provides that upon receipt of a requisition from the Panchayat Samiti or Zila Parishad to the effect that no member of the Service is available for appointment to the post in the Service by promotion or transfer from other Panchayat Samities or Zila Parishads and the post is to be filled by transfer of a person holding a post in the State Services corresponding to a post in Service, the District Officer (Collector) shall, after obtaining the consent of such Government servant and approval of the Head of the Department concerned in this behalf send recommendation for transfer of such person to the District Establishment Committee and the Committee shall then allot such person to the Panchayat Samiti or Zila Parishad concerned and the Panchayat Samiti and Zila Parishad, as the case may be, shall then appoint the person so allotted to the post on terms and conditions laid down in the Rajasthan Panchayat Samiti( Terms and Conditions of Deputation of Vikas Adhikaris, Extension Officer and Other Officers) Rules, 1959. This is in peri materia with s. 86 (10) of the Act. R. 22-B provides that when a Govt. Servant is, or is likely to be rendered surplus due to reduction/abolition of posts under the Govt., he may with his consent be appointed by transfer to the Service in the manner hereinafter provided in this rule, on a post declared by the Govt. to be equivalent to the post held by such Govt. servant immediately before such transfer. Servant is, or is likely to be rendered surplus due to reduction/abolition of posts under the Govt., he may with his consent be appointed by transfer to the Service in the manner hereinafter provided in this rule, on a post declared by the Govt. to be equivalent to the post held by such Govt. servant immediately before such transfer. Likewise, r.22-C provides that on reduction/abolition of certain posts in the Service, a list of persons rendered surplus shall be communicated by the Panchayat Samiti/Zila Parishads to the Govt. with a copy of the District Officer (Collector) on the basis of which the Govt. shall prepare a district-wise list of persons thus rendered surplus in the service and a list of such of the surplus personnel which can be absorbed within the District will be forwarded by the Govt. to the District Establishment Committee in accordance with the number of vacancies then existing in the service, on similar posts or on posts declared by the Govt. to be equivalent to the posts in the service brought under reduction and thereafter, the Committee shall accordingly allot such persons to the Panchayat Samiti or Zila Parishads concerned which shall appoint persons so allotted to similar posts or to equated posts in the Service on terms and conditions as may be applicable to such equated posts. (30) Rule 28 pertains to transfer within the district and it provides that the name of the employee desiring transfer or desired to be transferred within the district shall be communicated to the Committee by the Panchayat Samiti or the Zila Parishad, as the case may be and the Committee shall thereupon enter these names in a district-wise list and appointment by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the Committee which shall consult the Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control, they are for the time being and also under whose administrative control they are proposed to be transferred. The word used is shall consult and not concurrence or consent. The word used is shall consult and not concurrence or consent. R. 29 provides that 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 Samiti or the Zila Parishad, as the case may be and the Commission shall thereupon enter names in a district-wise list and 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 for the time being and also under whose administrative control, they are proposed to be transferred. (31) A resume of all these provisions of the Act and the Rules clearly go to show that the provisions of the Act and the Rules not only provide for district-wise selection and maintenance of district-wise merit list and seniority list for appointments and promotion but they provide for inter-Panchayat Samiti, inter- Zila Parishads and Inter-district transfers and transfers of members of Service to State Services and vice-versa in certain circumstances and hence, it is not at all a case of grant of absolute autonomy to these institutions of Panchayat Raj. A transfer from one Institution to another Institution does not result in change of an Employer. It is at best a case of controlled-guided and if I may say so, a monitored procedure of democratic de-centralisation whereby certain powers of the State Govt. have been conferred or delegated to these Institutions of Panchayat Raj for their own governance at the grass-root level to be exercised by the representatives of the people but in doing so, care has been taken not to provide these Institutions with absolute autonomy but by incorporating these provisions in the Act and the Rules, the hierarchy of these Institutions starting from Panchayats and over it Panchayat Samities and above it the Zila Parishads and then the State Govt. has been created or carved out for better functioning of the Panchayat Raj Institutions and in doing so their working has been made inter-dependent and inter-twined with adequate checks and controls. has been created or carved out for better functioning of the Panchayat Raj Institutions and in doing so their working has been made inter-dependent and inter-twined with adequate checks and controls. Thus, when these Institutions have not been made autonomous in the sense, this word has been used in common and legal parlance then the ratio of the decisions of their lordships of the Supreme Court in General Officer Commanding-in-Chief & Anr. vs. Dr. Subhash Chandra Yadav & Anr. (supra) and Jawaharlal Nehru University vs. K.S. Jawatkar (supra) cannot be made applicable to these Institutions and, therefore, the observations made by the Division Bench of this Court in Chhanganlals case (supra) in paras 21 and 22 of its judgment as regards the Division Bench decision of this Court in State of Raj. vs. Ram Pratap & 9 Ors. (supra) is only an obiter-dicta. In Chhaganlals case (supra), the Division Bench had no occasion whatsoever to consider the provisions of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959 and the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959. In case of Municipal Boards/Councils, there is no such provision of district-wise selection and district-wise seniority. The selection is to be made Municipal Board or Council-wise and the seniority also is to be maintained Municipal Board/Council/Corporation-wise and, therefore, there cannot be any comparison between the provisions of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959 and the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 and the provisions of the Rajasthan Municipalities Act, 1959 and the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963. The learned Judges of the Division Bench in Chhaganlals case (supra) have observed that r. 38 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 as also r. 20 of the Rajasthan Municipalities (Class IV) Service Rules, 1964 are violative of the provisions of s. 304 (3) of the Rajasthan Municipalities Act whereas there is no such incompatibility in the provisions of the Act and the Rules so far as Rajasthan Panchayat Samities and Zila Parishads Act, 1959 and the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 are concerned. (32) I may state here that the learned single Judge while deciding Rameshwar Pd. (32) I may state here that the learned single Judge while deciding Rameshwar Pd. Dixits case (supra), which has been followed in Mohan Pd.s case (supra), has not taken into consideration the Division Bench decisions of this Court in Prem Singh vs. State of Raj. (supra) and State of Raj. vs. Ram Pratap (supra). He has also not taken into consideration a single Bench decision of this Court in Makhanlals case (supra). It appears that these decisions were not brought to the notice of the learned single Judge, who has decided Rameshwar Pd.s case (supra), which has been followed in Mohan Pds case (supra). Had these decisions been brought to the notice of the learned single Judges, they could not have overlooked them. Be that as it may, I am firmly of the view that a very narrow construction has been put by the learned single Judge in R.P. Dixits case (supra) on the use of the word appointment used in sub-ss. (5), (6) and (9) of s. 86 of the Act. Such a narrow construction was not possible in view of the aforesaid three decisions of this Court in Premsinghs case(supra), State of Raj. vs. Ram Pratap (supra) and Makhanlals case (supra). (33) Moreover, the word appointment does not mean the first appointment or an appointment by promotion. Transfer or posting also is a mode of appointment whereby a particular vacancy is filled up and therefore, to keep transfer or posting out of the purview of the word appointment is to my mind taking too technical and narrow view of the word appointment. (34) The word appoint has been defined in Venkatramaiyas Law Lexicon with Legal Maxims (1991 Re-print) (With Supp.) (Volume-1) as follows: — "Appoint: The plain meaning of the word appoint is to ordain or nominate to an Office. There is, therefore, no reason to import the idea of consent into the plain meaning of the word appoint." The learned Author while dealing with the word appointment has stated that appointment means an actual act of posting a person to a particular office and this construction has been approved in Basantlal Malhotra vs. State (10). There is, therefore, no reason to import the idea of consent into the plain meaning of the word appoint." The learned Author while dealing with the word appointment has stated that appointment means an actual act of posting a person to a particular office and this construction has been approved in Basantlal Malhotra vs. State (10). (35) The meaning of the word appointment has been given in the Legal Glossary, published by the Government of India, Ministry of Law (1970 Edition) as under : — "Appointment: The action of nominating to or placing in an office; the office itself. 2. fixing." Thus, appointment is only a mode of nominating a person to a particular Office, which also includes transfer or posting. (36) In Websters New World Dictionary, 1962 Edition, the words appoint and appointment have been defined as under : — "Appoint: to ordain, prescribe and set." "Appointment: an appointing or being appointed; a naming or selecting for an office, position etc.; a person thus selected; a position thus filled; an arrangement to meet a person or be in a certain place at a set time." The word "Appointment has been defined in Shorter Oxford English Dictionary, THIRD EDITION, as follows: "Appointment: the action or ordaining what is to be done; the action of nominating to or placing in an Office; the Office itself." (37) Thus, such a narrow construction of the word appointment as has been given by the learned single Judge in R.P. Dixits case (supra), which has been followed in Mohan Pd. s case (supra) was not possible. Transfer is also a mode of appointment and widest connotation should be given to the word when law permits such a course. The power of general transfers is vested in Panchayat Samities and Zila Parishads or for that matter, the District Establishment Committee has been recognised by the aforesaid three decisions of this Court in Prem Singhs case (supra); State of Rajasthans case (supra) and Makhanlals case (supra). (38) It may be stated here that the validity of the provisions of s. 86 (9-A) of the Act has been upheld by this Court in State of Raj. vs. Ram Prataps case (supra) and the validity of the provisions of s. 86 (9) of the Act has also been upheld by this Court in Makhanlals case (supra). In these circumstances, I am firmly of the view that the State Govt. vs. Ram Prataps case (supra) and the validity of the provisions of s. 86 (9) of the Act has also been upheld by this Court in Makhanlals case (supra). In these circumstances, I am firmly of the view that the State Govt. is definitely invested with powers under s. 86 (9-A) of the Act to make transfers within the district i.e. from one Panchayat Samiti to another Panchayat Samiti in the same district or even inter-District transfers. This is only a case of transfer within the district and there fore, the Zila Parishad or for that matter, the District Establishment Committee are definitely competent to make such transfers within the District in the interest of administration. However, these transfers have not been made in exercise of the powers conferred under r. 28 of the Rules and, therefore, no question of consulting the concerned Panchayat Samities or Zila Parishads arose before ordering these transfers. Moreover, when these transfers were made by the Secretary, Zila Parishad, the concerned Panchayat Samities have relieved these petitioners and in some cases they have joined in the respective Panchayat Samities to which they have been transferred,which clearly shows that the concerned Panchayat Samities have consented to these transfers. The consent has more weightage than the mere consultation, which is made at the earlier stage, as has been held by this Court in Premsinghs case (supra). (39) Moreover, the State Govt. in exercise of its powers under s. 84 (2) of the Act has delegated its powers under s. 86 (9) of the Act read with r. 28 of the Rules of the Chief Executive Officer-cum-Secretary, Zila Parishad vide Notification dated 19.1.1990. In this view of the matter, I am firmly of the view that the impugned transfer orders are perfectly valid and they deserve to be sustained. (40) It was next contended by Mr. P. P. Choudhary, the learned counsel appearing for the petitioners that these orders are not speaking orders and do not furnish reasons for doing so and moreover, it has not been mentioned in the orders that these orders have been issued by the Secretary, Zila Parishad in exercise of the powers conferred on him by the State Govt. Such reasons cannot be allowed to be supplied now as per the decision of their lordships of the Supreme Court rendered in Mohindersingh Gill vs. Chief Election Officer (supra). Such reasons cannot be allowed to be supplied now as per the decision of their lordships of the Supreme Court rendered in Mohindersingh Gill vs. Chief Election Officer (supra). I may state here that transfer order need not be a speaking orders. Secondly, it is not necessary for a transferring authority to mention the provisions of law under which, he is exercising his powers. In this respect, I place reliance on a Division Bench decision of this Court in Dhannaram vs. State (11). (41) Moreover, even if the provisions of law under which transferring authority has exercised his powers have not been mentioned in the order or a wrong provision of law has been quoted in the order, that will not invalidate the order. If an order has been issued by a competent authority, it will be treated that it has been issued by a competent authority. Mention of wrong provisions of law or non-mention of the provisions of law under which such power has been exercised will not invalidate that order. In this respect, I may place reliance on certain observations made by their lordships of the Supreme Court in para 126 of the judgment in Dinesh Kumar vs. Motilal Nehru Medical College, Allahabad (12), wherein their lordships of the Supreme Court have observed : — "Even the mention of a wrong provision or omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists." (42) In this case, the impugned transfer orders have been issued on 30.7.1992 and the powers of transfers have been delegated to the Chief Executive Officer-cum-Secretary, Zila Parishads vide Notification dated 19.1.1990 by the State Govt. and, therefore, in my opinion, the impugned transfer orders are valid and they deserve to be sustained. (43) Moreover, the impugned transfer orders have already been complied with by the Panchayat Samities concerned as all the petitioners have been relieved by their respective Panchayat Samities. It may be interesting to note that these petitioners were not originally appointed by the Panchayat Samities from where they have been transferred except Shri Surendra Nath Arora. Thus, when transfers suited them, they did not raise any objection about them and when they found their transfers to particular places inconvenient, they have come to this Court. Blowing hot and cold in such a manner cannot be appreciated. Thus, when transfers suited them, they did not raise any objection about them and when they found their transfers to particular places inconvenient, they have come to this Court. Blowing hot and cold in such a manner cannot be appreciated. (44) In the result, I find no force in these writ petitions and therefore, they are hereby dismissed without any order as to costs.