Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1682 (RAJ)

Dharampal v. The State of Rajasthan

2004-11-23

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The present writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 6.10.2004 against the respondents with the prayer that condition No. 4 of the order dated 28.9.2004 (Annexure 1) passed by the State Government by which a direction/option was given to the Vikas Adhikari that after receiving the transfer order dated 28.9.2004 (Annexure 1), the concerned Gram Sewaks who were transferred be relieved to join the concerned Panchayat Samitis where they have been transferred and if in the concerned Panchayat Samiti where such Gram Sewaks have been transferred any post was not lying vacant, then the Gram Sewaks who had longer stay be relieved from the Panchayat Samiti, be quashed and set aside. 2. It arises in the following circumstances : (i) That the petitioners are working as Gram Sewak-cum-Panchayat Secretary in the Panchayat Samiti, Sri Karanpur under the control of Zila Parishad, Sri Ganganagar. (ii) Further case of the petitioners is that transfer of the persons like petitioners is governed by the provisions contained in Rule 289 and 290 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the Rules of 1996). (iii) Further case of the petitions is that as per provisions of Rule 290 of the Rules of 1996, prerequisite condition for effecting transfer from one Zila Parishad to another is that there must be vacant post in existence. (iv) Further case of the petitioners is that through order dated 28.9.2004 (Annexure 1), the State Government has made transfers of 220 gram sewaks working in different panchayat Samitis. (v) Further case of the petitioners is that four persons were ordered to be transferred to Panchayat Samiti, Sri Karanpur namely, Bajrang Lal Sharma from Sojat, Dist. Pali, Kishore Chand from Ghatol, Dist. Rajsamand, Rajendra Singh from Phalodi, Dist. Jodhpur and Jagdish Bhatia from Dungla and it was nowhere mentioned as to against whom, these persons were being sought to be transferred. However, condition No. 4 was inserted in the order dated 28.9.2004 (Annexure 1) that where there was no vacant post, the persons who were having longer stay in respective Panchayat Samiti would be relieved. Jodhpur and Jagdish Bhatia from Dungla and it was nowhere mentioned as to against whom, these persons were being sought to be transferred. However, condition No. 4 was inserted in the order dated 28.9.2004 (Annexure 1) that where there was no vacant post, the persons who were having longer stay in respective Panchayat Samiti would be relieved. (vi) Further case of the petitioners is that condition No. 4 in the order dated 28.9.2004 (Annexure 1) is per se illegal as there must be vacant post existing at the time of transfer and since Vikash Adhikari was authorised to relieve those Gram Sewaks who were having longer stay in the concerned Panchayat Samiti, thus, the persons who were not transferred were sought to be relieved by Vikas Adhikari and therefore, the condition No. 4 is illegal, arbitrary and discriminatory qua the petitioners. (vii) Further case of the petitioners is that the petitioners were not transferred through ordered 28.9.2004 (Annexure 1), but they could be uprooted on account of condition No. 4 in the order dated 28.9.2004 (Annexure 1). Hence, the present writ petition with the prayer stated above. 3. That during pendency of writ petition, an additional affidavit was filed by the petitioners to the effect that through order dated 5.10.2004 (Annexure 2 and Annexure 3 respectively), both the petitioners were relieved in pursuance of condition No. 4 of order dated 28.9.2004 (Annexure 1) on the ground that since aforesaid four persons mentioned in the order dated 28.9.2004 (Annexure 1) have been transferred and since in Panchayat Samiti, Sri Karanpur, there was no vacant post and therefore, in view of longer stay of petitioners at Panchayat Samiti, Sri Karanpur, they were relieved with the direction to give joining at Panchayat Samiti, Sojat and Phalodi respectively. 4. Reply has not been filed by the respondents. 5. I have heard the arguments of the learned counsel for the petitioner as well as respondents. 6. There is no dispute on the point that through order dated 28.9.2004 (Annexure 1), the petitioners were not transferred. 7. There is also no dispute on the point that there is condition No. 4 in the order dated 28.9.2004 (Annexure 1) as per which if there was no vacant post in the concerned Panchayat Samitis, then the persons who were having longer stay would have to be relieved. 8. 7. There is also no dispute on the point that there is condition No. 4 in the order dated 28.9.2004 (Annexure 1) as per which if there was no vacant post in the concerned Panchayat Samitis, then the persons who were having longer stay would have to be relieved. 8. There is also no dispute on the point that Bajrang Lal Sharma, Kishore Chand, Rajendra Singh and Jagdish Bhatia mentioned in the transfer order dated 28.9.2004 (Annexure 1) were transferred to Panchayat Samiti Sri Karanpur and since there was no vacant post at Panchayat Samiti, Sri Karanpur, there as per condition No. 4 of the order dated 28.9.2004 (Annexure 1), the senior-most persons who were having longer stay would have to be relieved. 9. There is also no dispute on the point that in pursuance of condition No. 4 of order dated 28.9.2004 (Annexure 1), since the petitioners were found to be having longer stay, they have been relieved vide orders dated 5.10.2004 (Annexure 2 and 3 respectively) to join the duties at Sojat and Phalodi respectively. 10. Thus, there can be no dispute on the point that through order dated 28.9.2004 (Annexure 1), though the petitioners were not transferred, but they have been relieved from their respective posts because of condition No. 4 incorporated in the order dated 28.9.2004 (Annexure 1). 11. There is also no dispute on the point that from one district to another district, transfers are made as per provisions of Rule 290 of the Rules of 1996. 12. The question which arises for consideration is whether in the facts and circumstances of the present case, relieving of the petitioners in pursuance of order dated 28.9.2004 (Annexure 1) can be justified or not. 13. It is axiomatic that if a transfer order has been made in violation of a statutory rule or regulation, it will be illegal. This is also the obvious implication of the dicta of the Hon'ble Supreme Court that a transfer order is liable to be struck down if made in violation of the rules. For that reference may be made to the decision of Hon'ble Supreme Court in the case of Rajendra Roy v. Union of India, 1993(2) SCT 65 (SC) : AIR 1993 SC 1236 . 14. The word "transfer" means the movement of a Government servant from one headquarter station in which he is employed to another such station. 15. For that reference may be made to the decision of Hon'ble Supreme Court in the case of Rajendra Roy v. Union of India, 1993(2) SCT 65 (SC) : AIR 1993 SC 1236 . 14. The word "transfer" means the movement of a Government servant from one headquarter station in which he is employed to another such station. 15. One of the elementary principles of administrative law is that the authority which has to exercise the power is obliged to apply its mind before such exercise. It cannot abdicate its obligation to do so and act at the instance of another authority which is not authorised to exercise the power. In other words, it is the competent authority alone, which has to apply its mind and make the order. 16. The power of transfer should be exercised by the competent authority and not by delegated authority. 17. Keeping the above principle in mind, it can easily be said that in the present case, the petitioners have not been transferred through order dated 28.9.2004 (Annexure 1) as their names were not mentioned in the transfer order dated 28.9.2004 (Annexure 1). However, they have been relieved by the Vikas Adhikari from the Panchayat Samiti, Sri Karanpur on account of condition No. 4 incorporated in the order dated 28.9.2004 and this fact itself amounts to transfer of the petitioners in another way. 18. It may be stated that the powers of transfer which were to be exercised as per provisions of Rule 290 of the Rules of 1996 have not been exercised in the present case and the choice was left to the Vikas Adhikari who was not competent to make transfer of the petitioners, but he was given powers to relieve them and as stated above the fact of relieving of the petitioners was nothing but a transfer in real sense. 19. Thus, it can be said that the competent authority who has power to transfer has not at all applied his mind in the cases of petitioners and has delegated his power to the Vikas Adhikari by incorporating condition No. 4 in the order dated 26.9.2004 and when this being the position, the condition No. 4 of the order dated 28.9.2004 (Annexure 1) appears to be illegal because it gives power to the Vikas Adhikari to relieve those persons who have not been transferred. 20. 20. Thus, it can be held that by relieving the petitioners by order dated 5.10.2004 (Annexure 2 and 3), the petitioners were virtually transferred by the Vikas Adhikari who was not competent to make their transfer. 21. For the reasons mentioned above, the condition No. 4 of the impugned order 28.9.2004 (Annexure 1) and orders dated 5.10.2004 (Annexure 2 and 3) are liable to be quashed and set aside qua the petitioners and this writ petition deserves to be allowed.For the reasons mentioned above, the present writ petition is allowed and condition No. 4 of the impugned order dated 28.9.2004 (Annexure 1) qua the petitioners and orders dated 5.10.2004 (Annexure 2 and 3) by which the petitioners were relieved are quashed and set aside.It is made clear that if the competent authority exercises power as per provisions of Rule 290 of the Rules of 1996, then this order would not come in is way.No order as to costs.Petition allowed. *******