JUDGMENT 1. These four writ petitions have been filed by the four petitioners, in practically identical circumstances, and aggrieved of the same orders, and raising practically same contentions.Likewise, the stand taken by the respondents in all these four petitions is also identical, so much so, that they have been transferred on the basis of one common complaint, containing the names of all these four petitioners. In this view of the matter, these four petitions are being decided by this common order.These petitions came up before me on 19.3.2002, on which date they were admitted, and interim stay order was granted. However, after service, applications under Article 226(3) have been filed. Thereafter, rejoinder has also been filed.Since various matters involving, more or less, identical controversy, come to be listed subsequently, wherein the stay were not granted, or matters were not admitted, and all these matters were also listed today, at the request of the learned counsel for both the parties, these writ petitions are being decided finally at this stage itself.By these writ petitions, the petitioners seek to challenge the impugned order of transfer being Annex. 1 dated 7.12.2001, and the subsequent follow up order being Annex. 2 dated 8.12.2001, whereby these petitioners have been transferred inter-district under the order of the Divisional Commissioner, purportedly exercising powers conferred on him vide circular dated 2.7.99 and 10.7.2001.The petitioners have also challenged the order of the State Government dated 2.7.99 Annex. 8 as thereby the powers are conferred on the Divisional Commissioner, and exercised by him, the petitioners have also challenged subsequent orders passed by the state Government in its sequence.Apart from some distinguishing and special facts in respect of two of the petitioners, being Gopi and Arti, the broad facts of the cases are, that the petitioners were working as Primary School Teachers in Government Primary School, Danthal. The petitioners, however, have been transferred to primary school at Danaliawas, vide order Annex. 4 dated 3.10.2001. All these petitioners have been transferred vide Annexs. The petitioners, however, have been transferred to primary school at Danaliawas, vide order Annex. 4 dated 3.10.2001. All these petitioners have been transferred vide Annexs. 1 and 2 as noticed above.According to the petition, she learnt that transfer has been effected on the ground of a complaint, and thereupon the petitioner immediately rushed to the Committee, and enquired about any complaint against her, then the committee issued a certificate that she has a good behaviour, and all other qualities and about living in the village itself, she requested for cancelling of transfer, she was not supplied of the copy of the complaint, nor was she ever informed as to when she was not present at Head Qtr. It was also alleged that the representation made by the petitioner has not been responded to. 2. The transfer order has also been assailed on the ground of being violative of principle of natural justice, as it has been made without making any sort of inquiry. 3. The order Annex. 8 is also sought to be challenged being violative of Article 309 and 311 of the Constitution by contending, inter alia that the employees are low paid employees. When seniority is maintained district wise, in the event of transfer, the seniority is disturbed, and it adversely affected* the opportunities of promotion. It is also contended that the power given vide Annex. 8 is power to punish by ordering transfer out side district, and since it is the punishment, the punishment is given without giving opportunity of hearing, it is bad. 4. Another ground taken is that in the Panchayati Raj Act and the Rules framed thereunder, there is no power vested in the Divisional Commissioner to transfer an employee and the State Government could not by an executive fiat confer such a power. 5. In the reply, various preliminary objections have been taken, namely the petitioner being guilty of coming with un-clean hands, concealing important facts from the court. Another ground taken is that the Sarpanch filed a complaint on 6.11.2001 against the petitioner complaining that the petitioner leaves the Head Quarters without permission, despite the fact that she is taking house rent allowance to remain at Head Quarters, she is not discharging her duties sincerely and the complaint was moved to District Collector along with the resolution passed in meeting of the Vigilance Committee held on 5.11.2001. All these three documents have been produced as Annex. R/1 to R/3. 6. Another contention has been raised that the petitioner has concealed material facts from the Court regarding memorandum dated 3.2.2001, served on the petitioner alongwith the charge sheet under Rule 17 of the CCA Rules. This charge sheet is served on 3.7.2001, and inquiry has been conducted, wherein it was found that students are very poor in arithmetic and education standard is very low. The low standard of the students proves that petitioner .is negligent in discharging her duties properly. During course of arguments, it is informed that the inquiry initiated is pending. It is then pleaded that the petitioners have already been relieved and have joined at the transferred posts. 7. Other pleadings have been taken regarding that duties of the State to provide basic education, to provide qualified, trained and competent teachers, as these teachers prepare the children of the country, who in due course of time, lead the nation, and there is need for maintaining very high standards of education, sports, administration, and maintenance of the teachers. The teachers shoulder the responsibility of molding the nation. The teachers are meant to teach children of impressionable' age, and we cannot let loose the innocent and unwary children. It was also contended that the teacher play pivotal role in molding the career, character, moral fibers and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest techniques to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. It is sought to be contended that slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education, in order to get meaningful and purposeful results. Reliance has been placed on a judgment of Hon'ble the Supreme Court in L. Muthukumar and another v. The State of Tamil Nadu and others reported in AIR 2000 SC 3084 . 8. In para 13, the order Annex. 1 is sought to be supported on the authority of the Notification dated 16.2.2002, whereby the State Government has conferred the required competence on the Divisional Commissioner under Section 98 of the Panchayati Raj Act, 1994. 8. In para 13, the order Annex. 1 is sought to be supported on the authority of the Notification dated 16.2.2002, whereby the State Government has conferred the required competence on the Divisional Commissioner under Section 98 of the Panchayati Raj Act, 1994. 9. Then alternative argument has been raised that even if the Divisional Commissioner has no competence to entertain the matter, it does not require any interference on the technical ground. Reliance has been placed on Mohammed Swaleh and ors. v. Third Additional District Judge, Meerut and another, reported in AIR 1988 SC 94 . Then at page 10, it is pleaded that the petitioner is guilty of concealment of material facts of having been relieved on 20.2.2002, and having obtained the interim stay order from this Court, and is thereby guilty of fraud. With these facts, the non-maintainability of writ petition has been pleaded on the ground of petitioner being guilty of fraud, and numerous judgments of this Court as well as Hon'ble Supreme Court have been relied upon. 10. Then in para 14, it has been pleaded that as per Rules, the State Government may issue orders regarding transfer, which are to be carried out by the concerned committee, and therefore the transfer is not punishment. It is also contended that the petitioner has moved to Sub-committee and the decision whereof is still awaited. 11. The contention of seniority has been controverted on the ground that the seniority shall be fixed on the basis of continuous length of substantive service on analogous post. A plea has been raised in para 17 which is reproduced as under : "to transfer outside the District does not harm the petitioner. It is not a punishment but to teach a lesson to such teachers.......... Therefore, the State has conferred the rights upon the Divisional Commissioner to issue such transfer orders." 12. Thus in substance the transfer order Is sought to be supported to have been made on the authority to the Notification dated 16.2.2002. Though in para 11 of parawise reply, it is contended that the transfers orders have been issued in pursuance to the order dated 2.7.99, 14.7.99, 15.3.2000 and notification dated 16.2.2002. 13. In rejoinder, it has been contended that to transfer the petitioner with a view" to teach a lesson" is nothing less. than imposing punishment. The other allegations about suppression of material facts etc. 13. In rejoinder, it has been contended that to transfer the petitioner with a view" to teach a lesson" is nothing less. than imposing punishment. The other allegations about suppression of material facts etc. have all been controverted. It is also pleaded that the order dated 2.7.99 had already been held to be not enforceable and cannot be held to have any sanctity of law, vide two judgments of this Court dated 17.10.2000 passed in S.B.C.W. No. 3664/2000 Atma Prasad v. State and in S.B.C.W. No. 1296/2001 Smt. Bali v. State passed on 23.8.2001 . Regarding Notification dated 16.2.2002, it is contended that this Notification is only prospective, and cannot support the orders already made. Various other pleas have also been taken. 14. During arguments, it is contended on behalf of the petitioners that since the order dated 2.7.99 has already held by this Court to be not enforceable, and not to be having any sanctity to law, all subsequent orders based on the said order Annex. 8, are of the no help to the respondent No. 2 in passing the transfer orders of the petitioners. 15. It is also contended that Annex. All is not a complaint filed by the Village Level Committee either to Collector or to the Divisional Commissioner, rather Annex. R/1 is only a plain piece of paper, not signed by anybody, and does not even include the name of any of the petitioners. Regarding Annex. R/2 and R/3, it is contended that Annex. R/2 is only a forwarding letter by Sarpanch to the Collector, and Annex. R/3 though purports to be resolution of the Village Level Committee, but it also does not appear to be resolution of the Village Level Committee, inasmuch as it is purportedly signed by only three persons being Sarpanch, Ward Panch and a retired employee. 16. As against this, the learned counsel for the respondents contends that the Division Bench of this Court in State v. Narpat Ram has clearly held that the order dated 2.7.99 does confer power on Divisional Commissioner to effect transfers, and therefore, the impugned order is perfectly valid. It is also contended that since the Division Bench has decided the validity of order dated 2.7.99, it cannot be set aside by this Court sitting singly. Other contentions are also raised in the reply, and they have been reiterated during the course of arguments. It is also contended that since the Division Bench has decided the validity of order dated 2.7.99, it cannot be set aside by this Court sitting singly. Other contentions are also raised in the reply, and they have been reiterated during the course of arguments. Regarding validity of the various orders Annex. 8 onwards, the provisions of Article 166 of the Constitution of India and the Rules of business have been pressed into service. Regarding Notification dated 16.2.2002, it has been contended to have been published in the Official Gazette on 7th March, 2002 and for its efficacy provisions of section 25 of the Rajasthan General Clauses Act have been pressed into service.I have considered the submissions.Coming first of all to the validity of the order dated 2.7.99, I may recapitulate what have been held by the Division Bench in Narpat Ram's case. All that has been said is that the writ petitioner therein did not choose to challenge the order of State dated 2.7.99 by which the power to transfer employee from one district to another district was given to the Divisional Commissioner of the respective division. Sub-rule (2) of Rule 290 specifically empowers the State Government to transfer any member of service from one Panchayat Samiti to another Panchayat Samiti within the same district or outside it. However, it was in view of the order dated 2.7.99 being not under challenge, it was taken to be conferring power on Divisional Commissioner to transfer employee from one district to another district, and therefore, the findings given by the learned Single Judge was not sustained. 17. A perusal of the aforesaid judgments of Single Bench of this Court in Atma Prasad and Smt. Bali Devi's cases, shows that therein the order dated 2.7.99 had already been held to be not enforceable and not to be having any sanctity of law. At this place. I may observe that it is not in dispute that the judgments of the learned Single Judge in Atma Prasad and Smt. Bali Devi's case have not been assailed before the Division Bench and those judgments being dated 17.10.2000 and 23.8.2001 have acquired finality. At this place. I may observe that it is not in dispute that the judgments of the learned Single Judge in Atma Prasad and Smt. Bali Devi's case have not been assailed before the Division Bench and those judgments being dated 17.10.2000 and 23.8.2001 have acquired finality. It is in this background, significant to note that by the time the writ petition in Narpat Ram's case were filed, the judgments of this Court in Bali Devi and Atma Prakash did hold good, with the result that the order dated 2.7.99 was not required to be challenged' in the writ petition. Not only this even before the Division Bench it was not pointed out that even before the Single Bench in Narpat Ram's case the order of transfer passed by the Divisional Commissioner was not sought to be supported on the basis of the order dated 2.7.99, and it was for the first time, that before Division Bench transfer order was sought to be supported on the basis of the order dated 2.7.99, having been produced before the Division Bench, as Annex. 1, and taking ground in para 4 of the special appeal.Significantly the same learned counsel, who appeared before the Single Bench in the cases of Atma Prakash, Bali Devi, so also in Narpat Ram's case, had filed the appeal before the Division Bench, and had argued appeal before the Division Bench. In that view of the matter it is clear that the order has been obtained from Divisional Bench by suppressing material facts by learned counsel, by not pointing out to the Division Bench, the judgments passed in Atma Prakash and Bali Devi's case, even by the same learned counsel who had appeared in those cases and those judgments were very much in his knowledge, and despite their having become final. In any case, in view of the above the learned counsel for the petitioner can not be said to be altogether wrong in contending the Division Bench Judgment to be per in curium having been passed without noticing the judgments in Atma Prakash and Bali Devi's cases which had become 4 final, and per force thereof, the order dated 2.7.99 was not required to be challenged, which omission to challenge is the basis of Division Bench judgment in Narpat Ram's case. 18. 18. It is then contended by the learned counsel for the petitioner that the impugned order of transfer, though transfer is taken to be exigency of 4 service, but in the peculiar circumstances of the case, it is punitive in nature, inasmuch as under the Rajasthan Panchayati Raj Act and the Rajasthan Panchayati Raj Rules, 1996, the seniority of the person is maintained at the local level, and in the event of employee being transferred outside district, seniority is to be computed on the basis of 5 length of service. However, in the event of transfer being sought by the employee, and such transfer being made, the employee is placed at bottom seniority. The order dated 2.7.99 or other subsequent orders, nowhere contemplate holding of any enquiry, regarding the allegations made in the recommendations of the Village Level Standing Committee, with the result that there is no machinery available with the employee to establish the allegations to be false, and in any case even if somehow, or by taking recourse to some system, the authority also comes to the conclusion that the complaint made was false, still nothing is provided in the order dated 2.7.99 that the action would be reversed, by setting the hands of clock back and reinstating the incumbent, to the original district. With the obvious result that in the event of the employees somehow coming to know of the authorities having come to the conclusion about falsity of complaint, and on that basis, the employee making request to transfer him to original district, and the Government purports to be compassionate, and grants retransfer, still the person shall be placed at bottom seniority, with the result that simply on account of the fact that a false complaint happened to be lodged in the form of recommendation by the Village Level Committee, and the Divisional Commissioner happens to pass the order of transfer, it results into imposition of penalty of forfeiture of seniority of the employee permanently, which is in the nature of major penalty, and is visited upon the employee without following any procedure which may be in accordance with the principles of natural justice and fair play, and therefore the order dated 2.7.99 is bad. 19. 19. Learned counsel for the respondent- could not effectively controvert the contention by pointing out any machinery or system which may be existing to take care of the eventuality projected by the learned counsel for the petitioner above. All that was submitted was that under the Panchayati Raj Act the employee can be transferred within district and outside district as well, and therefore, it only rests in the realm of exigencies of service. 20. I have considered the submissions and find force in the contention of the learned counsel for the petitioners. In the circumstances as illustrated above, in the event of the complaint being false, and on the State Government realising the falsity accepts the representation of the employee by retransferring him to the original district, the employee stands imposed a major penalty of forfeiture of the entire seniority, obviously not only for no fault or delinquency but also without any enquiry or opportunity of hearing. Likewise even in the event of complaint being right, the employee is being punished without any lawful procedure which may be in keeping with requirement of principles of natural justice. I may recapitulate the pleading taken in the reply of the respondents about the transfer being made with a view to 'teach a lesson' which obviously is nothing less than another form of reformative theory of punishment, but none the less is intended to be punishment. Thus on this ground also the order impugned being dated 2.7.99 is bad. Apart from this it is established law that such power of punishments could not be imposed, dehors the rules by an executive or administrative order without appropriately amending the rules, or without appropriately conferred the powers in accordance with the rules. In that view of the matter, also the impugned order Annex. 8 dated 2.7.99 is bad. 21. Perhaps realising the weaknesses in the order dated 2.7.99, a stand has been taken in para 13 at pages 7 and 8 to the effect that the respondent No. 2 (Divisional Commissioner) is competent authority to transfer the petitioners vide Annex. 8 as Section 98 empowers the Government to delegate the powers, and the Divisional Commissioner has been authorised to issue such orders vide Notification dated 16.2.2002. 22. Suffice it to say firstly that Section 98. has very many requirements. 8 as Section 98 empowers the Government to delegate the powers, and the Divisional Commissioner has been authorised to issue such orders vide Notification dated 16.2.2002. 22. Suffice it to say firstly that Section 98. has very many requirements. First and foremost, being that it has to be by Notification in Official Gazette, which even according to the respondents, has been published on 7th March, 2002 only. While the impugned order of transfer Annex. 1 is as early as dated 7.12.2001, and the Notification dated 16.2.2002 even does not purport to be retrospective. Likewise, a look at Annex. 1 shows that it purports to exercise powers conferred by order dated 2.7.99 only, and not by Notification dated 16.2.2002. 23. Thus, before this Court the impugned order which has been passed on the basis on the power, is sought to be supported on the basis of another power which even did not exist at that time. To say that least, that cannot be permitted.The other contentions based on various other judgments of Hon'ble the Supreme Court in Mohammed Swaleh's United India Insurance Company's case etc. who have all been dealt with by me in the judgment passed today in S.B. Civil Writ Petition No. 824/2002 Kera Ram v. State . For the reasons given in that judgment, those other contentions raised in the reply are also negatived. 24. The callousness with- which the action is being taken by the respondents is writ large from the fact that out of the four writ petitions, the petitioner Arti in W.P. No. 1067/2002 had already been transferred from Danthal to Dantaliawas vide Annex. 4 dated 3.10.2001, and had been relieved on 10.10.2001, which fact is not disputed, still she has been transferred on the ground of the alleged complaint on 15.10.2001. Likewise the petitioner Gopi in Writ Petition No. 1069/2002 admittedly was on maternity leave since 2.7.2001 vide Annex. 8 (in that writ petition) till 31.10.2002, still she has been transferred on the ground of absence on 15.10.2001. Likewise the petitioner Gopi in Writ Petition No. 1069/2002 admittedly was on maternity leave since 2.7.2001 vide Annex. 8 (in that writ petition) till 31.10.2002, still she has been transferred on the ground of absence on 15.10.2001. Likewise in Gopi's writ petition, in para 5 at page 3 of the reply, it is pleaded that the petitioner has concealed the material facts from this Court regarding memorandum dated 3.2.2001 having been served on her along with charge sheet under Rule 16 of the CCA Rules, and about the enquiry officer having reached to the conclusion that the students are very poor in arithmetic and educational standard is very low. While during course of arguments, it was conceded that no such charge sheet has at all been served on Gopi. These are some instances to show as to with what sincerity purport object of issuance of the orders dated 2.7.99 onwards is being pursued. 25. The net result is that the writ petitions are allowed. The impugned orders being dated 2.7.99 produced as Annex. 8 or Annex. 9 in these writ petitions are quashed. Likewise the impugned orders of the transfers are quashed. Parties are left to bear their own costs.It is, however, made clear that if the' respondents really feel the petitioner to be faltering in discharge of his duties, or being guilty of misconduct, the respondents are always free to take such other additional course of action against the petitioner as they may stand advised, and of course, in accordance with law.Writ Petition Allowed - Impugned orders and orders passed consequent thereto set aside - Respondents free to take action as advised against petitioner. *******