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2020 DIGILAW 127 (RAJ)

Kiran Kumari v. State of Rajasthan

2020-01-15

DINESH MEHTA

body2020
JUDGMENT : Dinesh Mehta, J. 1. This group of writ petitions (enumerated in the Schedule appended with the present order, which be treated an integral part of this order) lay challenge to separate transfer orders issued on one day i.e. 29.09.2019 by the Additional Director (Administration), Medical & Health Services, Rajasthan Jaipur. 2. The essence of petitioners' contention is that the respondent State, more particularly the Department of Medical & Health Service, has no authority to transfer the petitioners, whose services are governed by the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (hereinafter after referred to as "the Rules of 2011"). For the sake of convenience and clarity, the relevant facts from Kiran Kumari's case (SB Civil Writ Petition No. 14964/2019) are taken into consideration. 2.1. It may be noted that the State Government issued a circular/order dated 02.10.2010, whereby Sub-Centres, Primary Health Centres (PHC) and Community Health Centres (CHC) situated in various rural areas of Medical & Health Department, including their staff were transferred to the Panachati Raj Institutions. 2.2. According to such decision of the State, services of all such employees (including the petitioners) were ordered to be governed by the Rules of 2011. Consequently, their parent department remains Medical & Health Department, but their other incidence of service, including transfer are governed by the Rules of 2011. 2.3. Petitioner was afforded appointment on the post of Auxiliary Nurse Midwifery (ANM) on 29.01.2016. 2.4. The present bunch of writ petitions includes those persons who have been transferred from one District to another and one Panchayat Samiti to another Panchayat Samit, so also one Gram Panchayat to other. 2.5. By way of the order dated 29.09.2019, respondent No. 2 has transferred the petitioner - Kiran Kumari from Community Health Center Rajgarh, Churu to Sub-Center, Bhawta, Kuchaman City, Nagaur - from one district to another. 3. Mr. Vikas Bijarnia, learned counsel leading the arguments in this group of matters, at the outset submitted that after transfer of petitioner's services to the Panchayati Raj Department, petitioners' transfer can be made only in accordance with Rule 8 of the Rules of 2011, which reads thus:- "8. Transfer.- Transfer of such transferred employees shall be made under the transfer policy and directions issued by the State Government from time to time, by:- (i) the Administration and Establishment Committee of the Panchayat Samiti concerned within the same Panchayat Samit. Transfer.- Transfer of such transferred employees shall be made under the transfer policy and directions issued by the State Government from time to time, by:- (i) the Administration and Establishment Committee of the Panchayat Samiti concerned within the same Panchayat Samit. (ii) the District Establishment Committee of the Zila Parishad concerned from one Panchayat Samiti to another Panchayat Samiti within the same District. (iii) the department Concerned from one district to another district with the consent of the Panchayati Raj Department." 4. Having read the provisions of Rule 8 of the Rules of 2011, learned counsel contended that transfer of an employee, from one Gram Panchayat to another, can be effected by the Administration and Establishment Committee of Panchayat Samiti concerned; in case of transfer from one Panchayat Samiti to another, it can be done by District Establishment Committee of the Zila Parishad concerned and in case of inter district transfer, the same can be done by the department concerned i.e. Medical & Health Department, of course with the consent of Panchayati Raj Department. 5. Learned counsel contended that as per the mandate of Rule 8 of the Rules of 2011, transfer of an ANM or any employee for that matter, governed by the Rules of 2011, in the contingencies mentioned in (i) and (ii) of Rule 8 can be effected by the Panchayati Raj Department and in the third contingency i.e. in case of inter-district transfer, the same can be done by Medical & Health Department, subject of course to consent of the Panchayati Raj Department. 6. Inviting Court's attention towards transfer order, Mr. Bijarnia pointed out that the same has been done by the Medical & Health Department and thus, petitioner's transfer from District Churu to Nagaur, which otherwise is governed by Rule 8 (iii) of the Rules of 2011, is illegal and deserves to be quashed as no consent of Panchayati Raj Department has been obtained. 7. In a bid to lend support to his argument aforesaid, learned counsel placed reliance on a series of judgments, more particularly, judgment dated 14.11.2017 rendered in SB Civil Writ Petition No. 11862/2017 (Samleta Vs. State of Raj. & Ors.); Division Bench judgment dated 11.10.2018 in DB Special Appeal Writ No. 736/2018 (State of Raj. & Ors. Vs. Samleta) - affirming the Single Bench decision; judgment dated 28.05.2019 rendered in SB Civil Writ Petition No. 6917/2019 (Harish Chandra Katara Vs. State of Raj. & Ors.); Division Bench judgment dated 11.10.2018 in DB Special Appeal Writ No. 736/2018 (State of Raj. & Ors. Vs. Samleta) - affirming the Single Bench decision; judgment dated 28.05.2019 rendered in SB Civil Writ Petition No. 6917/2019 (Harish Chandra Katara Vs. State of Raj. & Ors.); judgment dated 12.11.2018 rendered in SB Civil Writ Petition No. 16963/2018 (Smt. Bimla Devi Vs. State of Raj. & Ors.). 8. Navigating the Court through the judgments aforesaid, learned counsel submitted that it has been consistent view of this Court, that transfer of ANMs or any such employee governed by the Rules of 2011, cannot be made by the parent department, without the prior consent of the Panchayati Raj Department in case of inter district transfer and in case of transfer within district, it can be done only by the District Establishment Committee or Administration and Establishment Committee, as the case may be. 9. Mr. K.S. Rajpurohit, learned Additional Advocate General assisted by Mr. Shreyansh Mehta defending the impugned transfer orders issued by the State Government placed before the Court an order dated 16.06.2018 issued by the State Government, whereby an in-principle decision has been taken that in case of transfer, the consent of Panchayati Raj Department will not be necessary. It was also argued that while taking such decision, a general consent has been taken from the Panchayati Raj Department in relation to all the transfers governed by Rule 8 of the Rules of 2011, hence, no separate consent of the Panchayati Raj Department is necessary in case of inter-district transfers. 10. It was further argued that in light of the said decision of the State Government, it is no more necessary that transfer should be effected by Administration & Establishment Committee or District Establishment Committee of the Panchayati Raj Department in case of transfers within the district. 11. Learned Additional Advocate General pointed out that the order dated 16.06.2018 passed by the Chief Secretary, though in his administrative capacity has the equal effect, if not more to Rule 8 in view of the power given to the State Government in the body of Rule 8 of the Rules of 2011, permitting the State Government to issue directions and guidelines. 12. He zealously read opening words of Rule 8, particularly the expression "......... 12. He zealously read opening words of Rule 8, particularly the expression "......... under the transfer policy and directions issued by the State Government from time to time,...", and argued that the order dated 16.06.2018 fills the gap between the rules and in light of what has been provided in the order dated 16.06.2018, all the transfers made by the State, subject matter of instant writ petitions are valid and in accordance with law. 13. Having argued so, learned counsel for the respondents submitted that the transfers in question have been made in public interest and looking to the administrative exigencies, as it is the Medical and Health Department, who is otherwise held responsible or accountable for deficiency or lack of medical facilities and it is the parent medical department, which can ascertain and adjudge requirement or suitability of a particular employee. Resting his arguments, he urged that since the transfers impugned were done in public interest, interference with such orders be avoided, keeping the public interest and public health as a paramount. 14. Heard. 15. A bare reading of Rule 8 of the Rules of 2011 leaves no room for ambiguity that transfer of the employees, whose services have been transferred to Panchayati Raj institution can be made by an authority who is authorized to transfer such employee, as has been clearly defined rather prescribed in the Rule 8 itself, viz. (i) in case of transfer within Panchayat Samiti - Administration and Establishment Committee of Panchayat Samiti, (ii) in case of transfer from one Panchayat Samiti to another Panchayat Samiti within the same District - District Establishment Committee of the Zila Parishad and (iii) in case of transfer from one District to another or inter district transfer - department concerned with consent of Panchayati Raj Department. 16. This Court is unable to accept the argument advanced by learned counsel for the respondents that by virtue of order dated 16.06.2018, the State Government has given an in-principle consent for transfer and has permitted transfers by the Medical & Health Department in case of intra Panchayat Samiti and inter Panchayat Samiti also. 17. Rules of 2011 have been framed under Article 309 of the Constitution and they have statutory force. Any order or circular, may it be passed by the Chief Secretary, cannot alter, obliterate or override the provisions contained in the Rules. 17. Rules of 2011 have been framed under Article 309 of the Constitution and they have statutory force. Any order or circular, may it be passed by the Chief Secretary, cannot alter, obliterate or override the provisions contained in the Rules. This Court hardly finds any substance in the arguments of learned Additional Advocate General that since the State legislature or rule making authority cannot amend the Rules every of and on, as and when required, executive order passed by the State Government can do the same and such administrative order can be issued in public interest and to meet the exigencies. 18. All the judgments cited by learned counsel for the petitioners right from the judgment dated 14.11.2017 in case of Samleta (supra) till the judgment dated 28.05.2019 in case of Harish Chandra Katara (supra), have consistently held that Rule 8 of the Rules of 2011 is sacrosanct and the State Government cannot transfer its staff/employee dehors the provisions contained in Rule 8 of the Rules of 2011. Relevant portions of the judgments aforesaid are being reproduced hereunder:- (i) (Samleta Vs. State of Rajasthan & Ors.): "3. concededly no such consent was taken. I note that vide order dated 20.09.2017 it was directed that joining of duties by the petitioner pursuant to impugned transfer order dated 15.09.2017 at the place where she has been transferred shall be subject to the decision of the writ petition. 4. The respondents have not been able to show to the Court as to why consent of the Panchayati Department is not warranted." (ii) (State of Raj. & Ors. Vs. Samleta): "Sub-rule (ii) of Rule 8 of the Rajasthan Panchayati Raj (Transfer Activities) Rules, 2011 clearly postulates that when a person is transferred from one District to another, there is a prerequisite condition of obtaining prior consent of Panchayati Raj Department. In the present case, the respondent is an employee of the Panchayati Raj Institution and she has been transferred from one district to another. Admittedly, no consent as per Rule 8 of the Rules of 2011 was obtained from the Panchayati Raj Department and therefore, her transfer is bad and in violation of the provisions of Rule 8 of the Rules of 2011. Even in the cases of transfer of surplus employees, consent has to be obtained from the Panchayati Raj Department. Admittedly, no consent as per Rule 8 of the Rules of 2011 was obtained from the Panchayati Raj Department and therefore, her transfer is bad and in violation of the provisions of Rule 8 of the Rules of 2011. Even in the cases of transfer of surplus employees, consent has to be obtained from the Panchayati Raj Department. In view of the above observations, we are not inclined to interfere in the order passed by the learned Single Judge. The appeal is, therefore, dismissed." (iii) (Smt. Bimla Devi Vs. State of Raj. & Ors.): "Sh. S.K. Gupta Additional Advocate General appearing for the respondents submits that in each & every matter consent as required under Rule 8 of the Rules, 2011 is not necessary and submits that a circular dated 16.06.2018 was issued in this regard by the Panchayati Raj Department. After hearing counsel for the parties, the contention advanced by the counsel for the petitioners holds substance for the reasons; firstly according to Rule 8 of the Rules, 2011 the consent is necessary to be obtained as required from the Panchayati Raj. Department; secondly a bare perusal of the order/circular dated 16.6.2018 clearly shows that it holds that for transfer of an employee the consent of the Panchayati Raj Department is not necessary which is violative of Rule 8 of the Rules, 2011. In that view of the matter, the writ petitions filed by the petitioners deserve acceptance and the transfer orders impugned herein deserve to be set aside. Accordingly, the writ petitions are allowed and the respective transfer orders impugned in the present petitions are set aside. However, the respondent-State is at liberty to pass order of transfer afresh, if exigency of service so require, only after strict compliance of Rule 8 of the Rules, 2011. Copy of the order be separately placed in each file." (iv) (Harish Chandra Katara Vs. State of Raj. & Ors.): "Learned counsel appearing for the respondent department placed reliance on the order dated 16.06.2018 (Annex. 9 in SBCWP No. 7212/2019), purportedly directing under Rule 8 and ordering that the required consent of the Panchayati Raj Department would not be required and therefore, the plea raised by the petitioners in this regard has no substance. State of Raj. & Ors.): "Learned counsel appearing for the respondent department placed reliance on the order dated 16.06.2018 (Annex. 9 in SBCWP No. 7212/2019), purportedly directing under Rule 8 and ordering that the required consent of the Panchayati Raj Department would not be required and therefore, the plea raised by the petitioners in this regard has no substance. Learned counsel for the petitioners in SBCWP No. 7212/2019 submits that the circular dated 16.06.2018 relied on by the respondents being contrary to the express provisions of Rule 8, the transfer orders without requisite consent under Rule 8 has been set aside in Smt. Bimla Devi v. State of Rajasthan & Ors.; SB Civil Writ Petition No. 16963/2018, decided on 12.11.2018 at Jaipur Bench. ... ... ... ... ... ... In view of the express provision of Rule 8 as well as the judgment in the case of Bimla Devi (supra), wherein the circular sought to be relied on by the respondents has been taken into consideration, the action of the respondents in effecting transfers of the petitioners in SBCWP Nos. 4214/2019 and 7212/2019 cannot be sustained. The order dated 08.03.2019 (Annex. 2 in SBCWP No. 4214/2019) and order dated 08.03.2019 (Annex. 8 in SBCWP No. 7212/2019), qua the petitioners are quashed and set aside." 19. State's endeavour to justify, rather defend impugned orders by submitting that these transfers have been made in public interest and that too by the Medical & Health Department, which is the best suited to ascertain the suitability of an employee considering the ground realities, also does not cut any ice. 20. It is settled preposition of law that if a statute or rule provides something to be done in a particular manner, such act is required to be done only as mandated by such rule. In the present case, Rule 8 is not only the fountain head of power to transfer but also a dividing line or road-map setting out clearly the authority and manner in which the transfers are to be effected. 21. This Court has no hesitation in holding that transfer of petitioners governed by the Rules of 2011 can be done only by the authorities/committees mentioned in clause (i), (ii) and (iii) of Rule 8 of the Rules of 2011. 21. This Court has no hesitation in holding that transfer of petitioners governed by the Rules of 2011 can be done only by the authorities/committees mentioned in clause (i), (ii) and (iii) of Rule 8 of the Rules of 2011. No authority or officer, howsoever high he may be placed in the bureaucratic hierarchy, can transfer an employee governed by the Rules of 2011, in violation of Rule 8. 22. Argument of respondents that by virtue of order dated 16.06.2018 passed by the Chief Secretary, the Medical & Health Department has been authorized to transfer the employees of Panchayati Raj Department is untenable. In considered opinion of this Court, any executive order cannot over-take or take place of substantive Rules. 23. In unqualified opinion of this Court, the Rules of 2011 framed by the State Government under Article 309 of the Constitution are paramount. Much relied expression in Rule 8 "......... under the transfer policy and directions issued by the State Government........." are only to supplement the Rule. State's attempt to give a complete go by to the Rules in the garb of such expression is unsustainable. 24. The State Government can frame policy or issue directions only on those aspects, in relation to which, the Rules are silent. Any executive order of the State Government, which is contrary to the express provision of the Rules cannot get sanction of the Court. Such orders will have to concede, on all aspects wherever they come in conflict with the statutory Rules. 25. The order of the State Government dated 16.06.2018, if read carefully reveals that all the stipulations contained in order dated 16.06.2018 are contrary to express provisions contained in Rule 8(i) Para requires the consent of parent Department i.e. Medical & Health Department in cases of transfer under Rule 8(i) and 8(ii); the same clearly falls foul to Rule 8(i) and 8 (ii); (ii) seeks to ratify such transfers affected, that too cannot be done - an act which is void ab-initio cannot be ratified and that too by the authority which has usurped the powers; (iii) and direction given in relation to inter-district transfers. 26. The order dated 16.06.2018 at best be read or construed to be a prior rather tacit approval of the Panchayati Raj Department. 26. The order dated 16.06.2018 at best be read or construed to be a prior rather tacit approval of the Panchayati Raj Department. But in the opinion of this Court, even that is impermissible and unsustainable because Rule 8(iii) postulates consent of Panchayati Raj Department; whereas part of the order goes on to say that in case of inter-district transfers, parent Department will not be required to take consent of Panchayati Raj Department. 27. In considered opinion of this Court, stipulation given in part of the order does violence with what is contained in para (iii) of Rule 8 and it is in direct conflict with Rule 8(iii) of the Rules of 2011. 28. The order dated 16.06.2018 issued by the Chief Secretary of the State does not go along with Rule 8 of the Rules of 2011 and thus, the same cannot be allowed to endure. Though there is no specific challenge to said order, but since it has been relied upon by the State as a shield to protect the order of transfers, the Government order dated 16.06.2018 is hereby quashed. 29. As a natural corollary, the impugned transfer orders (dated 29.09.2019) issued by the Additional Director (Administration), Medical & Health Department, Rajasthan Jaipur are also quashed; writ petitions are allowed. 30. It is informed that the petitioners involved in the present bunch of writ petitions are protected by way of interim orders passed by this Court, the interim orders passed in these writ petitions, consequent to petitions being allowed, are made absolute. 31. At the request of learned Additional Advocate General, the orders of transfer dated 29.09.2019 shall be treated to have been cancelled only qua these petitioners or who are protected by interim orders already passed. Whosoever has/have joined pursuant to the transfer order dated 29.09.2019, at the new place of positing, shall not be entitled for relief and they shall not be disturbed. 32. Needless to observe that if State in administrative exigencies wishes to transfer these petitioners, the same be done, needless to say, strictly in accordance with Rule 8 of the Rules of 2011. 33. Registry is directed to keep photostat copy of this order in each file, mentioned in the Schedule. 34. All interlocutory applications, including stay petitions stand disposed of.