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2020 DIGILAW 254 (RAJ)

Gopalram v. State of Rajasthan

2020-01-28

MANOJ KUMAR GARG, SANGEET LODHA

body2020
JUDGMENT : Sangeet Lodha, J. 1. This intra court appeal is directed against order dated 3.1.2020 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant assailing the legality of the transfer order dated 21.9.19 issued by the District Collector (Land Record), Hanumangarh, transferring the appellant holding the post of Patwari, from Amarpura Rathhan, Tehsil Pilibanga to 4AMP, Tehsil Sangaria, has been dismissed. 2. Precisely, it was contended by the appellant before the learned Single Judge that as per mandate of provisions of Rule 9(ia) of the Rajasthan Land Revenue (Land Records) Rules, 1957 (for short "the Rules of 1957"), the District Collector may transfer a Patwari anywhere within the district only under the directions of the State Government and thus, the order impugned issued by the District Collector on his own, without there being any direction of the State Government, is without jurisdiction. It was further contended that as per mandate of provisions of Rule 412 of the Rules of 1957, the transfer of Patwari is ordinarily undesirable and can only be made under the conditions given in Rule 9(ii) of the Rules of 1957, which requires the authority concerned to satisfy himself that such transfer is necessary in the interest of efficiency of work and thus, the order of transfer issued without recording such satisfaction is bad in law. 3. The learned Single Judge arrived at the conclusion that under Rule 9(ia), the power of transfer within sub division has been conferred on the Sub Divisional Officer and the power to transfer anywhere within the district has been conferred on the District Collector. The proviso to the main provision of Rule 9(ia) which stipulates that the State Government may direct the District Collector for transfer of Patwari anywhere within the district in no manner restrict the power of District Collector to effect transfer within the district. The learned Single Judge opined that the proviso merely empowers the State Government also to direct the District Collector to transfer a Patwari anywhere within the district but it cannot be construed to mean that the power can be exercised by the District Collector only on direction of the State Government. According to the learned Single Judge any other interpretation would render the main provision incorporated redundant. According to the learned Single Judge any other interpretation would render the main provision incorporated redundant. Regarding the contention of the appellant that transfer has been made without indicating the necessity in the interest of efficiency of work, learned Single Judge after due consideration of the provisions of Rule 9(ii) and Rule 412 of the Rules of 1957, opined that the transfer can be made besides for necessity in the interest of efficiency of work also for filling up vacancies created by long leave, resignation, suspension or transfer of Patwari and thus, the contention raised on behalf of the appellant regarding the violation of the provisions of Rule 9(ii) read with Rule 412 of the Rules of 1957, has also been negated by the learned Single Judge. The learned Single Judge while noticing the factual aspect of the matter that large number of transfers have been effected inter alia to fill up the vacancies for administrative reasons, held that the impugned transfer order issued cannot be said to be violative of Rule 9(ii) and Rule 412 of the Rules of 1957 as also the dictum of this Court in the matter of Suresh Kumar Jusot vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 4014/08, decided on 03.12.08, relied upon by the counsel appearing on behalf of the appellant herein. 4. Mr. H.S. Sidhu, learned counsel appearing for the appellant while reiterating the contentions raised before the learned Single Judge, submitted that the learned Single Judge has erred in holding that if the interpretation of the provision as suggested by the appellant is accepted, it will render the main provision of Rule 9(ia) redundant. Learned counsel submitted that the proviso to Rule 9(ia) restricts the power of the District Collector to transfer a Patwari anywhere within the district inasmuch as, the power so conferred can only be exercised by him if directed by the State Government. Learned counsel submitted that the learned Single Judge while reading the main provision and the proviso thereto in isolation has read something in the provision which is not permissible. In support of the contention, learned counsel relied upon the decision of the Supreme Court in Dr. Ganga Prasad Verma & Ors. vs. State of Bihar: (1995) Suppl. (1) SCC 192. Learned counsel submitted that the learned Single Judge while reading the main provision and the proviso thereto in isolation has read something in the provision which is not permissible. In support of the contention, learned counsel relied upon the decision of the Supreme Court in Dr. Ganga Prasad Verma & Ors. vs. State of Bihar: (1995) Suppl. (1) SCC 192. Learned counsel submitted that as per the circular dated 5.5.89, 30.10.93 and 14.7.92, a Patwari cannot be ordinarily transferred before completion of two years at the place of posting and in case of transfer prior to the completion of two years, the consent of Divisional Commissioner is mandatory and thus, the impugned transfer order passed by the District Collector without obtaining the prior consent from the Divisional Commissioner is liable to be set aside for this reason also. 5. On the other hand, Ms. Rekha Borana, learned Additional Advocate General appearing for the respondents while supporting the order impugned, submitted that it is well settled that the proviso cannot govern the main provision and thus, the power of the District Collector to transfer a Patwari in exercise of the power conferred under Rule 9(ia) of the Rules of 1957 cannot be restricted by virtue of proviso thereto and it has been rightly interpreted by the learned Single Judge that by virtue of proviso, the State Government may also direct the District Collector to transfer a Patwari anywhere within the district. Learned AAG submitted that from bare perusal of the transfer order impugned in the writ petition, it is manifestly clear that the transfer order was issued for administrative exigency. Learned AAG submitted that Smt. Manju Devi has been transferred from 4 AMP Tehsil Sangaria to LRP (RP)11, Tehsil Sangaria on a vacant post and vice her, the appellant has been transferred to 4 AMP. Learned AAG submitted that the transfer effected to fill up the vacant post is otherwise permissible under Rule 9(ii) of the Rules of 1957. Learned AAG submitted that the circulars relied upon by the appellant are not justifiable and enforceable and thus, the transfer order made in conformity with the provisions of Rule 9 of the Rules of 1957, cannot be faulted with. 6. We have considered the rival submissions and perused the material on record. 7. Learned AAG submitted that the circulars relied upon by the appellant are not justifiable and enforceable and thus, the transfer order made in conformity with the provisions of Rule 9 of the Rules of 1957, cannot be faulted with. 6. We have considered the rival submissions and perused the material on record. 7. Indisputably, the transfer of Patwari within the sub division or anywhere in the district is governed by Rule 9 of the Rules of 1957. Rule 412 deals with the administrative matters pertaining to the Patwaris including transfer. Precisely, the contentions of the appellant and the respondents roll around the provisions of Rule 9 and Rule 412 of the Rules of 1957, which may be beneficially quoted: "9(ia) The Sub-Divisional Officer may transfer a Patwari anywhere within the Sub-Division and the Collector may transfer a Patwari anywhere within the District: Provided that the State Government may direct the Collector for the transfer of a Patwari anywhere within the district. (ib) The Divisional Commissioner may transfer a Patwari on his own request anywhere within the Division and the Board of Revenue may transfer a Patwari on his own request anywhere within the State: Provided that the State Government may direct the Divisional Commissioner for the transfer of a Patwari on his own request anywhere within the Division or the Board of Revenue for the transfer of a Patwari on his request anywhere within the State. (ii) Transfers of Patwaris should not be made unless the officer has satisfied himself that such transfer are necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of a Patwari. The Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charges to his successor. The Tehsildar may, with the approval of the Sub-Divisional Officer, get the incomplete record completed by employing extra staff and paying such staff by deducting the required amount from the salary of the negligent Patwari. The unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action." "412. Administrative matters pertaining to Patwaris- The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris is ordinarily undesirable and should on no account be made to suit the convenience of individuals. The unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action." "412. Administrative matters pertaining to Patwaris- The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris is ordinarily undesirable and should on no account be made to suit the convenience of individuals. They can only be made under the conditions given in paragraph 9 and these conditions should be strictly observed. In order to avoid unnecessary transfers, Patwaris picked out for transfer, should, so far as possible be exchanged with one another rather than with other Patwaris. Transfers by way of punishment are not contemplated by law. Moreover, a transfer is hardly a substitute for punishment." 8. A bare perusal of Rule 412 of the Rules of 1957 makes it abundantly clear that the administrative matters pertaining to Patwaris including appointment, transfer and discipline are required to be solely controlled by the District Collector. It cannot be disputed that as per Rule 9(ia), the Sub-Divisional Officer is empowered to transfer a Patwari anywhere within the Sub-Division and the District Collector may transfer a Patwari anywhere within the District. 9. It is true that while interpreting any provision, the Court cannot usurp legislative function. But then, to quote Blackstone, the most fair and rational method in interpreting a statute is by exploring the intention of the legislature to the most natural and probable signs which are either the words, the context, the subject matter, the effects and consequence or the spirit and reason of law. 10. As noticed above, Rule 412 makes District Collector responsible for all administrative matters pertaining to Patwaris including the transfer and Rule 9(ia) empowers him to transfer a Patwari anywhere within the District. Of course, the proviso to Rule 9(ia), empowers the State Government to direct the District Collector for the transfer of a Patwari anywhere within the District, but it in no manner could be construed to mean that the power conferred upon the District Collector under the main provision of Rule 9(ia) stands restricted to this extent that he cannot transfer a Patwari anywhere in the District unless directed by the State Government to do so. The learned Single Judge has rightly arrived at the conclusion that if the interpretation to the proviso sought to be given by the appellant is accepted, the main provision of Rule 9(ia) empowering the District Collector to transfer a Patwari within a District shall render redundant. In the considered opinion of this Court, it cannot be the intention of the rule making authority that though the District Collector is solely responsible for inter-alia the transfer of a Patwari, he cannot exercise such power unless directed by the State Government, though the Sub-Divisional Officer shall have the absolute power to transfer a Patwari anywhere within the Sub-Division. Had it been the intention of the rule making authority not to confer the power upon the District Collector to transfer a Patwari within the District, neither the absolute control of the administrative matters pertaining to the Patwari would have been vested in the District Collector, nor there was any necessity to incorporate the provision in Rule 9(ia) empowering the District Collector to transfer a Patwari anywhere in the District and the simple provision could have been incorporated in terms that the District Collector subject to directions of the State Government, may transfer a Patwari anywhere in the District. In this view of the matter, in our considered opinion, the learned Single Judge was absolutely justified in concluding that by virtue of the proviso, the State Government may also direct the District Collector to transfer a Patwari within the District and the same in no manner restricts the power of the District Collector conferred under the main provision to transfer a Patwari anywhere within the District and further that the provision for transfer of Patwari anywhere within the District by the District Collector on direction of the State Government has been enacted to take care of contingency, where either the State Government at its level is of the opinion that the transfers are required to be effected and/or District Collector is not inclined to transfer a Patwari and the State Government comes to a conclusion otherwise. 11. To say the least, the main provision of the rule confers absolute power upon the District Collector to transfer a Patwari anywhere within the District and the said power in no manner could be considered to have been restricted or curtailed by implication by proviso thereto. 11. To say the least, the main provision of the rule confers absolute power upon the District Collector to transfer a Patwari anywhere within the District and the said power in no manner could be considered to have been restricted or curtailed by implication by proviso thereto. As a matter of fact, by way of Rule 9, the rule making authority has provided for hierarchy of authorities who will exercise power of transfer of a Patwari within the Sub-Division, District, Division and within the State. Besides the power of transfer of a Patwari conferred upon the Sub-Divisional Officer and the District Collector under Rule 9(ia), the power is also conferred upon the Divisional Commissioner and the Board of Revenue under Rule 9(ib) to transfer a Patwari anywhere within the Division and within the State respectively subject to his own request and by virtue of proviso thereto the State Government may also direct the Divisional Commissioner or the Board of Revenue to transfer a Patwari on his own request within the Division or within the State as the case may be. Thus, the contention raised by the learned counsel for the appellant that while interpreting the provision of Rule 9 (ia), the learned Single Judge has read something in the provision which is not there, is also devoid of any merit. 12. Coming to the contention of the appellant that the transfer order issued by the District Collector is violative of provisions of Rule 9(ii) and Rule 412, a conjoint reading of Rule 9 and Rule 412 indicates that a Patwari should not be ordinarily transferred, but then, he can always be transferred when considered necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of the Patwari. Suffice it to say that besides for administrative exigency, a Patwari can be transferred even to fill up the vacant post created on account of various contingencies enumerated. Thus, on account of administrative exigency, inter-alia to fill up the vacant posts, if number of employees holding the post of Patwaris are transferred within the District, in no manner, it can be said that the order impugned passed by the District Collector without recording the satisfaction regarding necessity in the interest of efficiency of work, is violative of provisions of Rule 9(ii) and Rule 412 of the Rules of 1957. As a matter of fact, the order impugned by itself reflects that the transfers have been effected for administrative exigency to fill up the vacant posts. 13. Admittedly, the transfer of a Patwari from one place to another within the Sub-Division, District, Division or State is regulated by Rule 9 of the Rules of 1957 which nowhere restricts the transfer of a Patwari prior to completion of a particular period of posting at a particular place. The circular/instructions issued by the State Government providing for transfer of Patwari after completion of the tenure of two years, are in the nature of guidelines not enforceable and cannot be construed in the manner suggested so as to put absolute restriction on the power to be exercised by the authorities enumerated under Rule 9 to transfer a Patwari for administrative exigency or other contingencies specified. In other words, notwithstanding the instructions issued by the State Government as aforesaid, the authority empowered can transfer a Patwari at any time for administrative exigency in accordance with Rule 9 of the Rules. It is a different matter that even otherwise in absence of administrative exigency, an employee holding the transferable post cannot be frequently transferred by his employer at his whims and fancy, but on the facts and in the circumstances of the case, in no manner, it can be inferred that the appellant has been transferred without there being any administrative exigency and it is not even the case of the appellant that he has been subjected to frequent transfer. 14. In view of the discussion above, we are in agreement with the view taken by the learned Single Judge of this Court. 15. No case for interference by us in intra court appeal jurisdiction is made out. 16. The special appeal is, therefore, dismissed. No order as to costs.