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2020 DIGILAW 35 (RAJ)

Gopalram v. State of Rajasthan

2020-01-03

ARUN BHANSALI

body2020
ORDER : 1. These writ petitions have been filed by the petitioners, who are working as Patwaris against orders dated 17.09.2019, 28.09.2019 and 29.09.2019 passed by the Collector, Land Records (LR), Hanumangarh, dated 25.09.2019 passed by the Collector (LR), Udaipur, 28.09.2019 passed by the Collector (LR), Pali, dated 29.09.2019 passed by the Collector (LR), Sriganganagar and dated 29.09.2019 passed by the Collector (LR), Bikaner, whereby the petitioners have been transferred within the district, respectively. 2. All the petitioners were posted at their respective places when the orders impugned came to be passed by the respective Collectors transferring the petitioners inter-alia for ‘administrative reasons’ from one Patwar Mandal to another Patwar Mandal within the respective districts. 3. The writ petitions have been filed, inter-alia, questioning the validity of the transfers on account of lack of the jurisdiction of the Collector in passing the order without there being any direction of the State Government in this regard in terms of Rule 9(ia) and on account of violation of Rule 9(ii) and Rule 412 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (‘the Rules of 1957’). 4. It is submitted by learned counsel for the petitioners that the provisions of Rule 9(ia) of the Rules of 1957 provide power to the Collector for transferring a Patwari anywhere within the district, however, the same is restricted by proviso, whereby the said power can only be exercised at the direction of the State Government. In none of the cases, State Government has given any direction for transferring the petitioners and, therefore, exercise of power by the Collector is without jurisdiction. 5. Further submissions have been made that Rule 9(ii) of the Rules of 1957 provides for mandatory guidelines for transfers of Patwaris, inter-alia, requiring that they should not be transferred unless the officer is satisfied himself that such transfer is 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. 6. Reference has also been made to provision of Rule 412 of the Rules of 1957, which provides that the transfer of Patwaris is ordinarily undesirable and can only be made under the conditions given in Rule 9 of the Rules of 1957, which must be strictly observed. However, as reason of transfer being the requisite interest of efficiency of work etc. However, as reason of transfer being the requisite interest of efficiency of work etc. is not reflected from the orders impugned, the orders of transfer are bad in the eyes of law. 7. Learned counsel for the petitioners in support of the contentions pertaining to Rule 9(ia) of the Rules of 1957 submitted that the power of the Collector to transfer is restricted by the proviso, which stipulates that the State Government may direct the Collector for the transfer of a Patwari anywhere within the district and in absence of the directions, the exercise of power of transfer is without jurisdiction. 8. For the purpose of extent of applicability of proviso and its consequence, reliance was placed on judgments in the Commissioner of Commercial Taxes vs. R.S. Jhaver and Others, AIR 1968 SC 59 , Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 , Sales Tax Officer, Jabalpur vs. Hanuman Prasad, AIR 1967 SC 565 , Dr. Ganga Prasad Verma vs. State of Bihar and Others, (1995) Supp. 1 SCC 192, Ansal Properties and Industries Ltd. vs. State of Haryana, (2009) 3 SCC 553 , State of U.P. vs. Manbodhan Lal, AIR 1957 SC 912 and Ramji Missir and Others vs. State of Bihar, AIR 1963 SC 1088 . 9. In relation to submissions made regarding provisions of Rule 9(ii) and Rule 412 of the Rules of 1957, reliance was placed on Suresh Kumar Jusot vs. State of Rajasthan, SBCW No. 4014/2008, decided on 03.12.2008. 10. Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondents submitted that the plea raised by the petitioners seeking to put interpretation on proviso to Rule 9(ia) of the Rules of 1957, has no basis and is contrary to the settled principles of interpretation of a proviso. 11. Submissions have been made that the main provision under Rule 9(ia) of the Rules of 1957 confers power on the Collector to transfer a Patwari anywhere within the district and it is only by way of exception to the main provision that the proviso stipulates that the State Government may direct the Collector for the transfer of the Patwari anywhere within the district and in case, the interpretation as put by the petitioners is accepted, the same would render the main provision redundant, which interpretation has to be avoided. 12. 12. Submissions have also been made that the proviso would come in picture only in case, where the Collector is not inclined to transfer a Patwari when the State Government would have to direct him to transfer. 13. Reliance has been placed on S. Sundaram Pillai and Others vs. V.R. Pattabiraman and Others, (1985) 1 SCC 591 and Ali M.K. vs. State of Kerala, (2003) 11 SCC 632. 14. Further submissions were made that the reliance placed by the respondents on various guidelines issued from time to time dealing with the transfer of Patwaris by their very nature are not enforceable by filing writ petition and in case, the petitioners seek redressal based on the guidelines, they have to approach the respondents by way of an appropriate representation. 15. Reliance was placed on Union of India and Others vs. S.L. Abbas, AIR 1993 SC 2444 (Para-7). 16. In relation to the submissions based on Rule 9(ii) of the Rules of 1957, it was submitted that the orders of transfer indicate that transfers have been made based on ‘administrative reasons/administrative reasons and for working arrangement’ and/or on vacant posts, specific reasons need not be indicted in the orders impugned. 17. Submissions have also been made that there are no allegations of malafide and once the transfers are within jurisdiction of the Collector, no case for interference is made out. 18. Reliance has been placed on Shilpi Bose and Others vs. State of Bihar and Others, AIR 1991 SC 532 . Further, strong reliance has been placed on judgment in the case of Bhagwan Das Mittal vs. State of Rajasthan and Others, RLW 2007 (3) Raj. 1713. 19. It was prayed that the writ petitions filed by the petitioners being without any substance, deserve to be dismissed. 20. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 21. A perusal of the orders passed by the various Collectors indicate that the Collector (LR), Hanumangarh has indicated ^^Á'kklfud n`f"V ls ,oa dk;ZO;oLFkk ds e/;utj** Collector (LR), Udaipur has indicated ^^Á'kklfud n`f"V ls** Collector (LR), Pali has indicated ^^Á'kklfud dkj.kks ls** Collector (LR), Sriganganagar has indicated ^^Á'kklfud dkj.kks ls** and Collector (LR), Bikaner has indicated ^^Á'kklfud dkj.kks ls** as the reasons for passing the orders impugned. The orders contain large number of transfers, which are not isolated and/or a particular Patwari has been picked-up for subjecting him to transfer. Few of the transfers have also taken place at the request of the concerned Patwaris. 22. The provisions of the Rules of 1957, which are subject matter of submissions by learned counsel for the parties, read as under:- “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 own 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. 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. 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.” 23. A bare reading of the provisions of Rule 9(ia) reveals that 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 Collector. The proviso to the main provision stipulates that the State Government may direct the Collector for the transfer of a Patwari anywhere within the district. 24. While the case of the petitioners is that the proviso restricts the power of the Collector to effect transfer within the district, which can only be done on the directions of the State Government, the case of the State Government is that the proviso does not restrict the main provision, but in addition, confers power on the State Government to give direction in case, the Collector is not inclined to effect transfer. 25. The function of the proviso in statute has been summarized by Hon'ble Supreme Court in the case of S. Sundaram Pillai (supra), wherein after taking into consideration almost all the judgments cited by counsel for the petitioners, it was laid down as under:- “43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment. (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself. (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem to be by and large the main purport and parameters of a proviso.” 26. (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem to be by and large the main purport and parameters of a proviso.” 26. It is also well settled principle of construction that unless clearly indicated, a proviso would not take away substantive right given by Section or Sub-Section and that the proviso cannot be so construed as to subsume the main provision and thereby nullify the right conferred by the main provision. 27. In Satnam Singh vs. Punjab and Haryana High Court, (1997) 3 SCC 353 , it was laid down by Hon'ble Supreme Court as under:- “It is a rule of law that a proviso should receive a strict construction. A proviso has to be strictly construed in as much as it carves out an exception to the general rule. The general rule enacted in the main part is not to be unduly restricted by expanding the context of the proviso which is intended to carve out the exception from the general rule.” 28. Further, Hon'ble Supreme Court in Institute of Chartered Financial Analysts of India vs. Council of the Institute of Chartered Accountants of India, (2007) 12 SCC 210 , has laid down as under:- “20. The role of a proviso is well-known. A proviso may restrict the operation of the main provision, but by reason thereof the rights and liabilities contained in the main provision cannot altogether be taken away.” 29. A plain reading of provision 9(ia) of the Rules of 1957 reveals that power has been conferred on the Collector to transfer a Patwari anywhere within the District. The proviso merely empowers the State Government also to direct the Collector for the transfer of the Patwaris anywhere within the district. In case, the proviso is construed to mean that the power can be exercised by the Collector only on the direction of the State Government, by necessary implication, the main provision would be rendered redundant and the same would only be a machinery provision i.e. the Collector is the authority, who would pass orders on the directions of the State Government, which cannot and is not the purport of the provision. 30. 30. In case, the intention of the legislature was that inter-district transfers would be made only at the directions of the State Government, there was no necessity to indicate the power of the Collector to transfer a Patwari within the district. A simple provision conferring the power on the State Government would have been enacted. 31. Apparently, the provision for transfer of the Patwari anywhere within the district by 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 transfers are required to be effected and/or the Collector is not inclined to transfer a Patwari and the State Government comes to a conclusion otherwise. 32. In view of the above plain reading of the provisions and the law laid down by Hon'ble Supreme Court with regard to interpretation of proviso to the main provision, the submissions made by learned counsel for the petitioners, cannot be accepted. 33. It is held that the Collector has the power to order for transfer of the Patwari anywhere within the district and the State Government has the power to direct the Collector for transfer of a Patwari anywhere within the district, in case, exigency arises as discussed hereinbefore. 34. In view of the above discussion insofar as the plea raised by the petitioners seeking to question the power of the Collector to effect transfer without directions from the State Government is concerned, the same has no substance. 35. Coming to the submissions made on the strength of provisions of Rule 9(ii) and 412 of the Rules of 1957 and judgment of this Court in Suresh Kumar Jusot (supra), the said provision also is, inter-alia explicit, which provides that the same can be made to fill-up vacancies created, inter-alia by long leave, resignation, dismissal, suspension or transfer of a Patwari. 36. This is not the case of the petitioners that the transfers have been made without the vacancy having been created by long leave, resignation, dismissal, suspension or transfer of a Patwari. Even if the vacancy is created by way of transfer by the same order by which the petitioner has been transferred, the same still would fall within the parameters of the provision and it cannot be said that the transfers have been made in violation of Rule 9(ii) of the Rules of 1957. 37. Even if the vacancy is created by way of transfer by the same order by which the petitioner has been transferred, the same still would fall within the parameters of the provision and it cannot be said that the transfers have been made in violation of Rule 9(ii) of the Rules of 1957. 37. The emphasis laid by learned counsel for the petitioners that the transfers have been made without indicating the necessity in the interest of efficiency of work has also no substance, inasmuch as, the said requirement also is in alternative and not the only mandatory requirement for exercising power under the Rule. 38. The orders have been passed effecting large number of transfers, the same are not isolated transfers and, therefore, the very fact that elaborate exercise has been undertaken at the level of the Collector for effecting the transfers, necessarily indicates that the same is for administrative reasons and merely because the reasons have not been elaborately indicated in the orders of transfer by itself cannot vitiate the said orders so as to require interference by this Court. 39. So far as the judgment in the case of Suresh Kumar Jusot (supra) is concerned, there is no dispute with regard to the principles laid down therein, which are based on plain reading of the provisions of Rule 9(ii) and Rule 412 of the Rules of 1957, however, the facts of the present case, wherein large number of transfers have been effected, for the reasons noticed hereinbefore distinguishes the said case and has no application to the present circumstance. 40. Insofar as the other pleas, which have been raised by the petitioners indicating their personal difficulties in executing the transfers is concerned, the same cannot be used for invoking powers of this Court under Article 226 of the Constitution of India for questioning the validity of the transfer, for the same, the petitioners have to approach the respondents. 41. In view of the above discussion, there is no substance in the writ petitions, the same are, therefore, dismissed. No order as to costs.