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2004 DIGILAW 109 (RAJ)

Jagmala Ram v. State of Rajasthan

2004-01-21

N.P.GUPTA

body2004
JUDGMENT 1. - Heard learned counsel for the parties. 2. The present writ petition has been filed seeking to challenge the transfer of the petitioner vide order, Annexure 1 from Chhitarwali Ki Dhani, Bhoiasar, Phalodi to Meere Ki Dhani, Panchayat Samiti, Jaisalmer. 3. It is contended by the learned counsel for the petitioner that the order, Annexure 1 has been passed by the District Education Officer in pursuance of the Government Order, mentioned therein, and following the order issued by the Dy. Director, Primary Education, as mentioned therein. Since the Primary Education has been transferred to the Panchayati Raj Department, I read the Panchayati Raj Act and the Rule to show that therein, the District Education Officer, or any authority in the Education Department, has no jurisdiction to pass such an order, and therefore the order is bad. Various other allegations about malafide have also been made. Be that as it may. 4. The respondents in the reply has taken the stand that sanctioned lo post of teachers in Panchayat Samiti as a whole was allotted by the. Government, and the number of posts of teachers in each school of Panchayat Samiti increases and decreases on the basis of strength of the students, and the teachers are posted in each school looking to the strength of the students, and out of the sanctioned posts. 5. It has also been pleaded that the provisions of Section 84 have been added introducing sub-section (10), and the State Government, exercising those powers, has issued a circular, Annexure R/1, being dated 28.1.01, according to which, the State Government has delegated the powers of Elementary Education in rural areas to the District Elementary Officer to act as per provisions of law, or as directed by the State Government, and therefore, the State Government has delegated the powers of officer-in-charge to follow the directions issued by the State Government. Hence the District Elementary Education Officer is empowered for effecting inter district transfers when so directed by the State Government. 6. I have considered the submissions, have perused the documents produced, so also have gone through the various provisions of the Act, and the Rules. In my view, the stand taken by the respondent, cannot be accepted. 7. Hence the District Elementary Education Officer is empowered for effecting inter district transfers when so directed by the State Government. 6. I have considered the submissions, have perused the documents produced, so also have gone through the various provisions of the Act, and the Rules. In my view, the stand taken by the respondent, cannot be accepted. 7. A look at the provisions of Rule 289 and 290 of the Panchayati Raj Rules shows that the transfer of the employee within a district is to be made on the recommendations of the District Establishment Committee by the Panchayat Samiti, or Zila Perished, as the case may be, and the Stets Government may also from time to time issue orders regarding transfer, and the orders are required to be complied with by the Chief Executive Officer, or the Vikas Adhikari. Then according to Rule 290, where a person desires his transfer outside the District, it will be done on the recommendations of the State Government by the concerned Panchayat Samiti, however, the State Government is empowered to effect inter district transfer, arid the inter Panchayat Samiti transfers, and the concerned Chief Executive Officer, or the Vikas Adhikari is to comply with those orders. 8. Learned counsel for the respondents has placed for my perusal the Order of the State Government dated 7.6.2003 contending that thereby the State Government has affected the transfers, which is an act of exercise of powers of Rule 290 of the Panchayati Raj Rules. 9. It may at once be observed that in the first place, the order has been issued under the signature of the Deputy Secretary in the Education Department, and not the Panchayati Raj Department, and secondly, by this order, no transfers have been made by the Slate Government, rather thereby, the State Government has given direction to the Director, Elementary Education to transfer the persons as per the list, and in case, such transfers are not to be effected by the Director, but is to be effected by some other authority, the list be sent to him, and under information to the State Government. 10. 10. It is also significant to note that the list enclosed with this order snows that in the end thereof, there are certain remarks, mentioned, like post being not available vacant, or some other noting, but then, this is a list issued from the office of Hon'ble the Minister, Medical and Health, Education, DOP, GAD Department, and not by the Panchayati Raj Department and if read in conjunction with he order dated 7.6.2003, it cannot be said that by this order, transfers have been effected, rather directions have been given to the Director, or the other authorities, below him to effect the transfer, while on the face of the language of Rule 290 of the Rules, these authorities do not figure anywhere in the picture, as authorities, competent to effect the transfer. 11. In that view of the matter, to say the least, the Government Order dated 7.6.2003, does not amount to ordering transfer by the State Government, and Annexure 1, having been passed by an authority, having no jurisdiction, on the language of Rule 290 of the Panchayati Raj Rules, I have no option but to quash Annexure 1. 12. Accordingly, the writ petition is allowed, and the order, Annexure 1 is quashedWrit Petition Allowed - Order Annexure I Quashed. *******