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2021 DIGILAW 637 (RAJ)

Rajpal Singh v. State Of Rajasthan

2021-03-18

DINESH MEHTA

body2021
JUDGMENT Dinesh Mehta, J. - Though the matter comes up on board for consideration of application under Article 226(3) of the Constitution of India, seeking vacation of interim order dated 13.01.2021, but the learned counsel appearing for the rival parties were in unison that the matter be decided finally, as the arguments on the application for vacating interim order will take as much time as the arguments of final hearing of the matter would. 2. Hence, the matter was finally heard. 3. The petitioner a Patwari at the relevant time was posted in Patwar Mandal Akadali, Tehsil Pachpadra, District Barmer, when he was subjected to transfer vide order dated 31.12.2020. 4. The basic plank on which the petitioner has assailed his transfer has been, that under Rule 9 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (hereinafter referred to as "the Rules of 1957"), the State Government cannot transfer a Patwari, sans his own request. 5. Before the arguments could even be opened, Mr. Mrigraj Singh, learned counsel for the respondents pointed out that vide recent amendment brought in force on 24.11.2020, Rule 9 of Rules of 1957 has been amended and words "on his own request" have been obliterated; as a result whereof, the State can now transfer a Patwari as per provisions of Rule 9 of the Rules even in absence of request made by concerned Patwari. 6. Mr. Mathur fairly conceded that after the amendment being introduced, his basic argument that the State Government cannot transfer the petitioner a Patwari, from one District to another without his own request, has lost its force, rather very foundation, but argued that regardless of State's power to transfer a Patwari under Rule 9, the State is not absolved of the obligation to follow mandate of clause (ii) of Rule 9 of the Rules of 1957. The competent authority has to satisfy himself about the requirement or need of transfer before subjecting a Patwari to transfer, he emphasised. 7. It was also argued that may be after the amendment in Rule 9, the State has been empowered to transfer a Patwari after the amendment brought into effect vide notification dated 24.11.2020, however there is no corresponding amendment brought in Rule 412 and thus, the State Government is bound by the provisions contained under Rule 412 of the Rules of 1957. 8. 8. Inviting Court's attention towards Rule 9 and 412 of the Rules of 1957, Mr. Mathur argued that the competent authority or the State Government cannot normally transfer a Patwari, unless it is satisfied that the transfer is necessary in the interest of efficiency of work or to fill up the vacancy created by long leave, resignation, dismissal, suspension or transfer of the Patwari etc. 9. Learned counsel submitted that even Rule 412 of the Rules of 1957 makes the transfer subject to conditions mentioned in Rule 9 of the Rules of 1957 and, thus, conditions contained in clause (ii) of Rule 9 of the Rules of 1957 have to be satisfied before subjecting a Patwari to transfer. 10. Highlighting the nature of duties and job responsibilities, he contended that transfers of Patwari as a routine are not desirable. In support of such stand, heavy reliance was placed upon the judgment dated 28.11.2006, rendered in the case of Inder Singh Vs. State of Raj.;, (2007) 1 RajLW 737. 11. Having made above legal submission, learned counsel for the petitioner took the Court through the basic fact, rather the impugned order passed by the Board of Revenue and argued that so far as petitioner is concerned, a simple indication has been made that he is transferred from Patwar Mandal Akadali, Tehsil Pachpadra, District Barmer to District Hanumangarh. With an expression of astonishment he argued that the competent authority who subjected the petitioner to transfer, was not even aware as to whether any post is lying vacant or has become vacant or any exigency has arisen in a particular Patwar Circle, so that the petitioner is/was required, yet he has transferred the Patwari in the District of Hanumangarh. 12. Mr. Mrigraj Singh, learned counsel for the respondent vehemently argued that so far as petitioner's basic ground about State's power to transfer is concerned, that does not require any argument in view of the amendment and if that argument goes, then, transfer is nothing more than an incidence of service, for which all the Government employees, even a Patwari can be subjected to transfer, if administrative exigency so warrants. 13. He zealously read out the following stipulation appended with the transfer order in question and submitted that even the formal expression that "the transfer in question has been done for administrative exigency" is also present in the order, hence, no interference is warranted. 13. He zealously read out the following stipulation appended with the transfer order in question and submitted that even the formal expression that "the transfer in question has been done for administrative exigency" is also present in the order, hence, no interference is warranted. ^^mijksDr LFkkukarj.k@inLFkkiu iz'kklfud dkj.kks ls fd;s tk jgs gSA vr% dkfeZdks dks ;k=k HkŸkk ,oa ;ksxdkykf/k ns; gksxkA^^ 14. Mr. Singh contended that above expression is enough to evince that the competent authority has satisfied himself about the administrative exigency and an employee cannot claim that the transfer order should contain reasons or ground of administrative exigency. 15. In response to Mr. Mathur's argument that no place of posting has been provided to the petitioner, it was argued by learned counsel for the State that the petitioner has been transferred to Hanumangarh District and the concerned District Collector would provide him place of posting in terms of Rule 9(i) of the Rules. 16. In relation to petitioner's arguments that Rule 412 of the Rules mandates that normally a Patwari should not be transferred, Mr. Mrigraj Singh argued that Rule 412 is applicable only in case of transfer within a District and the same does not apply when the transfer is outside the District. His argument in other words has been that since petitioner's transfer is from District Barmer to Hanumangarh, Rule 412 does not apply and thus, the order impugned dated 31.12.2020, which has been passed by the Board of Revenue in exercise of power conferred under the provisions of Rule 9(ib) of the Rules of 1957 cannot be faulted with. 17. Learned counsel relied upon judgment dated 03.01.2020, passed by a coordinate Bench of this Court in a bunch of writ petitions led by Gopalram Vs. State of Raj. & Anr. (S.B. Civil Writ Petition No.14402/2019) and its affirmation by Division Bench vide judgment dated 28th January, 2020 (Special Appeal Writ No.53/2020). 18. Heard. 19. Before adverting to rival contentions, it would be appropriate to reproduce the relevant provisions of Rule 9 and Rule 412 of the Rules of 1957, which read as under:- "9.Transfers. -(i) The Collector may transfer a Patwari from one circle or tehsil to another in his own district: but no transfer of a Patwari from one district to another shall be made without the sanction of the Member, Land Records, Board of Revenue. -(i) The Collector may transfer a Patwari from one circle or tehsil to another in his own district: but no transfer of a Patwari from one district to another shall be made without the sanction of the Member, Land Records, Board of Revenue. Transfers from one Division to Another will be sanctioned by the Board of Revenue. The Sub-Divisional Officers are also empowered to transfer a Patwari from one circle to another in the same tehsil or to another tehsil in their sub-division on sufficient grounds. Provided that if a Patwari is transferred out of the district on his own request he shall rank junior to existing Patwar is of that district. (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 anywhere within the Division and the Board of Revenue may transfer a Patwari anywhere within the State: Provided that the State Government may direct the Divisional Commissioner for the transfer of a Patwari anywhere within the Division or the Board of Revenue for the transfer of a Patwari anywhere within the State. (ii) Transfers of patwaris should not be made unless the officer has 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. The Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charge 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 are 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. 412. Administrative matters pertaining to Patwaris. - The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are 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." 20. A careful reading of Rule 9 and 412 of the Rules of 1957 and its comparison with other corresponding provisions of transfer in other service rules, reveals that there is a sea difference in the provisions relating to transfer of Patwaris. Transfer in case of Patwaris is considered as an exception and thus, it cannot be taken as an incidence of service. 21. True it is, that a hierarchy has been provided to transfer a Patwari in Rule 9, but irrespective of the pedastral at which the authority transferring a Patwari, is placed, he has to ensure that it falls within the exceptions enumerated under clause (ii) of Rule 9. Clause (ii) rather begins with a negative mandate; it enjoins upon the competent authority to be satisfied about existence of either of the two contingencies - (i) transfer is necessitated in the interest of efficiency of work or (ii) to fill up vacancy. 22. Expression "in the interest of efficiency of work" is having its own tone and shade it cannot be equated with an administrative exigency, simplicitor. That apart, last sentence of Rule 412 forecloses option of the officer to transfer a Patwari even in the event of his unsatisfactory work or conduct - "the unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action". That apart, Rule 412 provides to an extent that in case of transfers, the transfer must be mutual- with one another rather than with other Patwaris. 23. Similar opinion, though more beautifully and more authoritatively has been expressed by this Court in case of Inder Singh (supra). Following paragraphs of the judgment of the Inder Singh(supra) require special mention, hence, they are being echoed:- "22. 23. Similar opinion, though more beautifully and more authoritatively has been expressed by this Court in case of Inder Singh (supra). Following paragraphs of the judgment of the Inder Singh(supra) require special mention, hence, they are being echoed:- "22. On touching merits of the cases, from perusal of the pleadings and the record of the respondents, I found whole sum violation of Rule 9 and 412 of the Rules of 1957. The government servant other than the Patwaris in State of Rajasthan may be subjected to transfer looking to administrative exigency as per Rule 20 of the Rajasthan Service Rules, 1959, however, in the cases of Patwaris special provisions are prescribed for effecting their transfers under Rule 9 of the Rules of 1957. 23. According to Rule 9 of the Rules of 1957 a Patwari from one Tehsil to another Tehsil in the same district can be transferred by the Collector on being satisfied that such transfer is necessary in interest of efficiency of work or to fill up the vacancies created by long leave, resignation, dismissal, suspension or transfer of a Patwari. Subrule (ii) of Rule 9 of the Rules of 1957 further provides that the Patwari on going transfer before getting relieved shall have to complete all his record and clear all his work in arrear. The arrears of work may further be completed by employing extra staff in the event of transfer of a Patwari. The requirements of Rule 9 of the Rules of 1957 to transfer a Patwari are further asserted and reiterated by Rule 412 of the Rules of 1957 to the extent that a transfer of Patwari is ordinarily undesirable and should not be made to suit convenience of individuals. The provisions of Rule 9 read with Rule 412 of the Rules of 1957 make it clear that the transfer of a Patwari is not a normal incidence of service but is an exception. The legislature chose to prescribe statutory guidelines for transfers of Patwaris looking to their special status in land revenue and land record operations. 24. A Patwari is a basic administrative unit in administrative hierarchy of government that is dealing with the land revenue, land records and settlement of land. A Patwari is required to discharge quite important statutory duties as prescribed under Chapter-III of the Rules of 1957. A Patwari is a living link between the government and the landholders. 24. A Patwari is a basic administrative unit in administrative hierarchy of government that is dealing with the land revenue, land records and settlement of land. A Patwari is required to discharge quite important statutory duties as prescribed under Chapter-III of the Rules of 1957. A Patwari is a living link between the government and the landholders. The State of Rajasthan, as other parts of the country, is also dominated by farmers and the largest part of the population is involved in profession of agriculture. A Patwari is required to keep living relations with the agriculturists and also required to keep absolute vigilance with revenue records to protect rights of the State and also to maintain harmony and peace among land holders and to avoid unwanted land disputes in his patwar circle. Looking to important statutory duties of a Patwari the law framers provide a special procedure for effecting their transfers. The administrative officers must follow the statutory requirements prescribed to transfer a Patwari. The compliance of the provisions of Rule 9 read with Rule 412 of the Rules of 1957, while transferring a Patwari is mandatory." 24. This being the position, even if the State or the competent authority wishes to transfer a Patwari from one place to another, he has to satisfy himself about the interest of efficiency of work or to fill the vacant post. 25. In the opinion of this Court, going by the spirit of Rule 9, particularly clause (ii) thereof, observations made by this Court in Inder Singh' case (supra), transfer of Patwaris cannot be resorted to, as a matter of course. 26. In the present case, neither such satisfaction has been recorded, nor the State has brought on record such satisfaction arrived at by competent authority, before making extensive, rather indiscriminate exercise of moving Patwaris. 27. In considered opinion of this Court, the fact that the petitioner has been shunted from Patwar Mandal Akadali, Tehsil Pachpadra, District Barmer to District Hanumangarh, without indicating Patwar Circle or even Tehsil is enough to show lack of application of mind. It cannot be inferred that the competent authority was aware of the present vacant position in District Hanumangarh and that too the requirement of petitioner's efficiency in such Patwar Circle, for which his transfer was warranted. 28. It cannot be inferred that the competent authority was aware of the present vacant position in District Hanumangarh and that too the requirement of petitioner's efficiency in such Patwar Circle, for which his transfer was warranted. 28. If the competent authority has not decided or was not aware, where the concerned Patwari is to be transferred, it cannot be presumed that the competent authority has applied its mind towards the vacant position, falling vacant on account of exigencies mentioned in clause (ii) of Rule 9 of the Rules of 1957. Nor can he be presumed to have ascertained that interest of efficiency of work required that petitioner should be transferred to a far flung place at Hanumangarh. 29. Adverting to Division Bench judgment in the case of Gopalram (supra), suffice it to observe that the facts of the said case were entirely different. The basic ground for which the petitioner had challenged his transfer was that it is the State Government alone, which can transfer a Patwari and the District Collector cannot by himself transfer a Patwari unless directed by the State Government so to do. That apart the facts as noticed in the judgment and finding recorded therein, particularly in para No.12 shows that the concerned petitioner's transfer was on account of administrative exigency, interalia, to fill up the vacant post. Contra-distinction to the decided judgment, the facts and questions involved in the present case are entirely different. In the present case neither the order impugned nor does material placed on record is sufficient to satisfy that petitioner's transfer was effectuated in a bid to fill up vacant post. 30. It will not be out of place to reproduce para No.12 and 13 of the Division Bench judgment dated 28.01.2020 in the case of Gopalram (supra), relied upon by learned Government Counsel:- "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." 31. As an upshot of discussion foregoing, this Court has no hesitation in holding that the petitioner has been subjected to transfer, contrary to the mandate of Rule 9(ii) of 1957. Impugned order thus, deserves to be quashed. 32. The same is hereby done. As an upshot of discussion foregoing, this Court has no hesitation in holding that the petitioner has been subjected to transfer, contrary to the mandate of Rule 9(ii) of 1957. Impugned order thus, deserves to be quashed. 32. The same is hereby done. The impugned transfer order dated 31.12.2020 qua the petitioner, is, hereby, quashed. 33. The writ petition stands allowed as above. 34. Stay petition also stands disposed of accordingly.