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2023 DIGILAW 631 (RAJ)

Jugal Kishor Purohit S/o Shri Bhanwar Lal Purohit v. State of Rajasthan

2023-03-01

VINIT KUMAR MATHUR

body2023
ORDER : 1. Lawyers are abstaining from work and are not appearing before the Court. 2. The short question involved in the present writ petitions is that whether the petitioners were transferred by passing different transfer/posting orders in violation of Rule 8 of Rajasthan Panchayati Raj (Transfer Activities) Rules, 2011 from their present place of posting. 3. The petitioners, after the selection by the Medical Heath and Family Welfare Department, Government of Rajasthan, were posted under different Community Health Centers and Panchayat Samitis under the Department of Rural Development and Panchayati Raj, Government of Rajasthan. After joining of the petitioners at their respective places, they are sought to be transferred by the Medical and Health Department without taking the consent of the Panchayati Raj Department. Aggrieved of these transfer orders, the petitioners preferred these writ petitions with the prayer that their transfer orders may be quashed and set aside. 4. This Court, while issuing notices in the writ petitions, observed that the controversy involved in the present cases is squarely covered by a judgment of this Court passed in S.B. Civil Writ Petition No. 14964/2019, Kiran Kumari vs. State of Rajasthan and Others on 15.01.2020. 5. Learned Additional Advocate General has vehemently opposed the submissions made in the writ petitions, however, he very fairly submits that the controversy involved in the present cases has been set at rest by a judgment of this Court rendered in the case of Kiran Kumari (supra). 6. I have considered the pleadings of the present writ petitions and the submissions made by the learned counsel for the respondents. 7. In the case of Kiran Kumari (supra), this Court has dealt with the issue in detail and has decided the controversy vide judgment dated 15.01.2020 holding as under: “25. The order of the State Government dated 16.06.2018, if read carefully reveals that all the stipulations contained in order dated16.06.2018 are contrary to express provisions contained in Rule 8. (i) Para ¼v½ requires the consent of parent Department i.e. Medical and 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) ¼c½ 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. (ii) ¼c½ 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) direction given in ¼l½ 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. 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 ¼l½ 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 ¼l½ 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. 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.” 8. In view of the discussion made above, the transfer orders qua the petitioners impugned in these writ petitions are quashed and the present batch of writ petitions is also disposed of in terms of the order passed by this Court in the case of Kiran Kumari (supra).