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2010 DIGILAW 1182 (RAJ)

Manjulata Bohra v. State of Rajasthan

2010-07-07

VINEET KOTHARI

body2010
JUDGMENT Hon'ble KOTHARI, J.--By this petition, the petitioners-teachers have challenged the impugned order dtd. 20.6.2010 (Annex. 1) passed by the Dist. Education Officer (Elementary Education) cum-Additional Chief Executive Officer (Elementary Education), Jodhpur transferring 208 teachers from their present place of posting stated in column No. 5 to new School where they were to be absorbed upon such transfer as stated in column No. 5 of the said order under Equalization Policy issued by the State Government for maintaining teachers-students ratio in the State of Rajasthan. The said order has been passed in compliance with the orders issued by the State Government passed on 15.4.2010 and 14.6.2010 by the Director, Elementary Education, Government of Rajasthan, Bikaner referred to in preamble of the said order dated 20.6.2010. 2. The only question raised by the learned counsels for the petitioners in the present writ petition is that: (i) The said order dtd. 20.6.2010 is without jurisdiction because the same has been passed not by the Chief Executive Officer Nikas Adhikari, but by the Dist. Education Officer-cum-Additional Chief Executive Officer and therefore, the order deserves to be quashed being in violation of Rule 289(3) of Rajasthan Panchayati Raj Rules, 1996. 3. They contended that the autonomy of the Panchayati Raj Institution to whom the work of primary Education in the rural area was assigned by the State Government and these matters were governed by the Rajasthan Panchayati Raj Act, 1994 and the Rules framed thereunder, namely, the Rajasthan Panchayati Raj Rules, 1996, is adversely affected by the said interference by the State Government in the form of passing of impugned order implementing the order of the State Government passed by the Director of the Elementary Education. 4. I have heard the learned counsels, perused the record and gone through the relevant provisions of the Act and the Rules. 5. The relevant statutory provisions in this regard contained in Section 89(8) and (8-A) of the Act of 1994 are reproduced hereunder for ready reference: "89. Constitution of Rajasthan Panchayat Samiti and Zila Parishad Service.- There shall be constituted for the State service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district-wise. Constitution of Rajasthan Panchayat Samiti and Zila Parishad Service.- There shall be constituted for the State service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district-wise. (8) Appointments by- (i) Promotion shall be made by the Panchayat Samiti or the Zila Parishad, as the case may be, in the prescribed manner from amongst the persons whose names have been entered in the list prepared by the District Establishment Committee, and (ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may, of the Panchayat Samitis or the Zila Parishads from and towhich such transfer is proposed to be made. 8-A. Notwithstanding anything contained in Sub-sec. (8), the State Government may transfer any member of the service from one. Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to a Zila Parishad or from a Zila Parishad to a Panchayat Samiti and may also stay the operation of, or cancel, any order of transfer made under Sub-sec. (8), or the rules made thereunder." 6. Relevant Rule 289 and 336(26) of the said Rules of 1996 are also reproduced hereunder: "289. Transfer within the district.-(1) The name of the employee desiring transfer or desired to be transferred within the district shall be communicated to the district Establishment Committec by the Panchayat Samiti. (2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or Zila Parishad concerned on the recommendation of the District Establishment Committee. (3) State Government may issue orders regarding transfers from time to time. In case District Establishment Committee/Standing Committee of Panchayat Samiti does not agree, Chief Executive Officer/Vikas Adhikari as the case may be, shall carry out orders of the State Government. (4) On transfer of the employee, his confidential roll and service record will be transmitted, without avoidable delay, to the Panchayat Samiti/Zila Parishad to whom his service have been transferred. 336. In case District Establishment Committee/Standing Committee of Panchayat Samiti does not agree, Chief Executive Officer/Vikas Adhikari as the case may be, shall carry out orders of the State Government. (4) On transfer of the employee, his confidential roll and service record will be transmitted, without avoidable delay, to the Panchayat Samiti/Zila Parishad to whom his service have been transferred. 336. Other powers and functions of the Chief Executive Officer.-In addition to the powers and duties laid down in section 84 of the Act, the Chief Executive Officer shall assist the Pramukh in discharge of functions specified in Rule 36 and perform additional duties and exercise powers as under:- (1) to (25) ... (26) Transfers of members of Panchayat Samiti and Zila Parishad service within the district as per general guide lines or decision of Zila Parishad. No Gram Sevak shall be posted in Home Panchayat." 7. The provisions of Sub-Section (8A) of Section 89 of the said Act obviously gives a non-obstante and over-riding power to the State Government to transfer any member of service where such transfer is made from one Panchayat Samiti to another Panchayat Samiti whether within the same district or outside it or from one Zila Parishad to another Zila Parishad and from one Panchayat Samiti to Zila Parishad and the State Government has further over-riding power to also stay the operation of or cancel any order of transfer made under Sub-Section (8) or the Rules by Panchayat Samities made thereunder. 8. Sub-section (8) of Section 89 of the said Act as quoted above gives power to the Panchayat Samities to transfer such teachers after consultation with Pradhans or the Pramukhs. This Court in the case of Ram Singh vs. State of Rajasthan & Ors.- 2008 (2) RLW 1950 held that the powers under Sub-Section (8-A) of the Act cannot be exercised by the State Government when such transfer of teachers is made within the same Panchayat Samiti or Intra Panchayat Samiti, but such transfer is vested in the State Government when such transfers are made from one Panchayat Samiti to another Panchayat Samiti or from one Zila Parishad to another Zila Parishad. Rule 289 of the Rules of 1996 dealing with the transfer within the district as quoted above also empowers the Dist. Rule 289 of the Rules of 1996 dealing with the transfer within the district as quoted above also empowers the Dist. Establishment Committee which is defined in Section 90 of the Act of 1994 to include Zila Pramukh as the Chairman, Chief Executive Officer, District Elementary Education Officer and an officer nominated by the competent authority and Sub-Rule (1) and (2) of Rule 289 provides that the name of the employee desiring transfer or desired to be transferred within the district shall be communicated to the District Establishment Committee by the Panchayat Samiti and posting by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the District Establishment Committee. Sub-Rule (1) and (2) of the Rules of 289 thus stipulate this power to be exercised by the Panchayat Samiti or Zila Parishad on the recommendation of the Dist. Establishment Committee which includes elected persons as well as Government authorities which form the District Establishment Committee. 9. However, Sub-Rule (3) of Rule 289 of the Rules of 1996 empowers the State government to issue orders regarding transfer from time to time. It is further provided in Sub-Rule (3) that in case the Dist. Establishment Committee/Standing Committee of the Panchayat Samiti does not agree with the said order passed by the State Government, the Chief Executive Officer/Vikas Adhikari, as the case may be, is mandated to carry out the orders of the State Government. The words used in Sub-Rule 3 are "Chief Executive Officer/Vikas Adhikari, as the case may, shall carry out orders of the State Government." Sub-Rule (4) of the Rules of 1996 further provides that on transfer of the employee, his confidential roll and service record will be transmitted without avoidable delay to the Panchayat Samiti/Zila Parishad to whom his services have been transferred. 10. Though the words of non-obstante clause like "notwithstanding anything contained in Sub-rule (1) and (2)" are not employed in Sub-Rule (3) of Rule 289, in the considered opinion of this Court, Sub-Rule (3) of Rule 289 has to be given over-riding effect over Sub-Rule (1) and (2) of Rule 289. 10. Though the words of non-obstante clause like "notwithstanding anything contained in Sub-rule (1) and (2)" are not employed in Sub-Rule (3) of Rule 289, in the considered opinion of this Court, Sub-Rule (3) of Rule 289 has to be given over-riding effect over Sub-Rule (1) and (2) of Rule 289. It is so because Sub-Rule (3) of Rule 289 has to be read with Section 89 (8A) of the Act which was brought on the statute book w.e.f. 23.4.1994 by Section 7 of Rajasthan Act No. 23 of 1994 which gives non-obstante effect to the order of the State Government with regard to transfer of any member of service where such transfers are made from one Panchayat Samiti to another Panchayat Samiti. Admittedly, the transfers in the impugned order Annex. 1 dtd. 20.6.2010 have been made from one Panchayat Samiti to another Panchayat Samiti and therefore, the said order is saved by virtue of non-obstante power of the State Government. The mandate under Sub-Rule (3) of Rule 289 is to carry out the orders of the State Government of transfer of members of service of such Panchayati Raj Institution irrespective of recommendations of the Dist. Establishment Committee or its agreement or disagreement with said orders passed by the State Government. The later part of Sub-Rule (3) of Rule 289 clearly stipulates that in case the Dist. Establishment committee/Standing Committee of the Panchayat Samiti does not agree with the order passed by the State Government, the Chief Executive Officer/Vikas Adhikari as the case may be shall carry out the orders of the State Government. 11. In the considered opinion of this Court, no scope is left for the Chief Executive Officer/Vikas Adhikari to take a different view in the matter in conflict with the orders passed by the State Government and he is bound to carry out such orders passed by the State Government. In view of this interpretation given upon harmonious reading of Rule 289(3) with Sub-Section (8A) of Section 89 of the Act, the contention of the learned counsels raised that the impugned order passed by the Dist. In view of this interpretation given upon harmonious reading of Rule 289(3) with Sub-Section (8A) of Section 89 of the Act, the contention of the learned counsels raised that the impugned order passed by the Dist. Education Officer-cum-Additional Chief Executive Officer to carry out the orders passed by the Director of the Elementary Education, Government of Rajasthan, Jaipur is without jurisdiction, cannot be sustained, even if the said implementing order is passed by the authority, may be one step lower or different from the authority mentioned in Sub-rule (3) of Rule 289 and the same cannot be said to be with patent lack of jurisdiction. The purpose of Sub-Rule (3) of Rule 289 is to carry out the orders passed by the State Government. Since the orders passed by the State Government have over-riding effect when such transfers are affected from one Panchayat Samiti to another Panchayat Samiti or from one Zila Parishad to another Zila Parishad as envisaged in Section 89(8A) of the Act and when the authorities of the Panchayati Samiti are not allowed to take a different view of the matter and irrespective of recommendations or disagreement of the Dist. Establishment Committee, the authority who is carrying out such orders of State Government cannot be said to be without jurisdiction even though passed by the authority one step lower than the Chief Executive Officer/Vikas Adhikari as mentioned in Rule 289(3) of the Rules of 1996. Under the relevant Rules governing the delegation of powers of Chief Executive Officer to the Addl. Chief Executive Officer, the authority who passed the impugned order, the said authority can be assumed to have such power as nothing has been placed on record nor even pleaded in writ petition or contended that the Addl. Chief Executive Officer cannot exercise powers of Chief Executive Officer. It is not such a patent lack of jurisdiction which could entitle the petitioners to invoke extraordinary jurisdiction of this Court assailing the validity of said order because what is being carried out is the orders passed by the Director, Elementary Education, Government of Rajasthan being the orders passed by the State Government, which in any case have over-riding effect and are intended and mandated to be carried out by the authorities working in the Panchayat Samiti or the Panchayati Raj Department, as the case may be, including the Dist. Establishment Committee. 12. Establishment Committee. 12. It is made clear that this Court has decided only the question of jurisdiction and interpretation of Rule 289(3) and Section 89(8A) of the Act in the present writ petitions. 13. It is also made clear here that out of other two sets of writ petitions arising out of current transfers being made by the State Government under the Equalisation Policy, this Court has disposed of one set of the writ petitions being S.B. CWP No. 5761/2010- Bharat Kumar Soni and Ors. vs. State of Rajasthan and Ors. and other 12 connected with petitions on 5.7.2010 where the petitioners approached this Court with the prayer that there were deviations from the guidelines laid down in Equalisation Policy and since said Equalisation policy itself provided for representation to be made to the competent authority for redressing the grievance of the petitioners and therefore, the writ petitions were disposed of with a direction to the competent authority to decide such representations of the petitioners and even all those teachers who have not even approached this Court by way of writ petition, even their representations have been directed to be decided by the competent authority within a period of two weeks and till then status quo regarding their relieving and joining at new place has been directed to be maintained. 14. In another set of writ petitions being SBCWP No. 5803/2010- Santosh vs. State of Hajasthan and Ors. and 29 other connected writ petitions, the question of jurisdiction of Dy. Secretary of Government of Rajasthan who passed the transfer order transferring the petitioners-teachers within the same Panchayat Samiti from one place to another was challenged. Following the decision of Ram Singh (supra), those petitions have been admitted on 5.7.2010 and Mr. R.L. Jangid, MG has been directed to file reply before the next date i.e. 13.7.2010 and till next date, the status quo has been directed to be maintained. 15. However, since in the present writ petitions, no such question of jurisdiction of Dy. Secretary making transfer within the same Panchayat Samiti is involved nor grievance about the representation has been made and the only question of jurisdiction of Dist. Education Officer-cum-Additional Chief Executive Officer under Rule 289(3) has been raised, the said question of law has been decided as aforesaid. 16. Secretary making transfer within the same Panchayat Samiti is involved nor grievance about the representation has been made and the only question of jurisdiction of Dist. Education Officer-cum-Additional Chief Executive Officer under Rule 289(3) has been raised, the said question of law has been decided as aforesaid. 16. Consequently, this Court is of the view of that there is no force in these writ petitions and the same are accordingly dismissed. No order as to costs.