1. - The present writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 6.10.2004 against the respondents with the prayer that condition No. 4 of the order dated 28.9.2004 (Annexure 1) passed by the State Government by which a direction/option was given to the Vikas Adhikari that after receiving the transfer order dated 28.9.2004 (Annexure 1), the concerned Gram Sewaks who were transferred be relieved to join the concerned Panchayat Samitis where they have been transferred and if in the concerned Panchayat Samiti where such Gram Sewaks have been transferred any post was not lying vacant, then the Gram Sewaks who had longer stay be relieved from the Panchayat Samiti, be quashed and set aside.

2. It arises in the following circumstances :

(i) That the petitioners are working as Gram Sewak-cum-Panchayat Secretary in the Panchayat Samiti, Sri Karanpur under the control of Zila Parishad, Sri Ganganagar.

(ii) Further case of the petitioners is that transfer of the persons like petitioners is governed by the provisions contained in Rule 289 and 290 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the Rules of 1996).

(iii) Further case of the petitions is that as per provisions of Rule 290 of the Rules of 1996, prerequisite condition for effecting transfer from one Zila Parishad to another is that there must be vacant post in existence.

(iv) Further case of the petitioners is that through order dated 28.9.2004 (Annexure 1), the State Government has made transfers of 220 gram sewaks working in different panchayat Samitis.

(v) Further case of the petitioners is that four persons were ordered to be transferred to Panchayat Samiti, Sri Karanpur namely, Bajrang Lal Sharma from Sojat, Dist. Pali, Kishore Chand from Ghatol, Dist. Rajsamand, Rajendra Singh from Phalodi, Dist. Jodhpur and Jagdish Bhatia from Dungla and it was nowhere mentioned as to against whom, these persons were being sought to be transferred. However, condition No. 4 was inserted in the order dated 28.9.2004 (Annexure 1) that where there was no vacant post, the persons who were having longer stay in respective Panchayat Samiti would be relieved.

(vi) Further case of the petitioners is that condition No. 4 in the order dated 28.9.2004 (Annexure 1) is per se illegal as there must be vacant post existing at the time of transfer and since Vikash Adhikari was authorised to relieve those Gram Sewaks who were having longer stay in the concerned Panchayat Samiti, thus, the persons who were not transferred were sought to be relieved by Vikas Adhikari and therefore, the condition No. 4 is illegal, arbitrary and discriminatory qua the petitioners.

(vii) Further case of the petitioners is that the petitioners were not transferred through ordered 28.9.2004 (Annexure 1), but they could be uprooted on account of condition No. 4 in the order dated 28.9.2004 (Annexure 1). Hence, the present writ petition with the prayer stated above.

3. That during pendency of writ petition, an additional affidavit was filed by the petitioners to the effect that through order dated 5.10.2004 (Annexure 2 and Annexure 3 respectively), both the petitioners were relieved in pursuance of condition No. 4 of order dated 28.9.2004 (Annexure 1) on the ground that since aforesaid four persons mentioned in the order dated 28.9.2004 (Annexure 1) have been transferred and since in Panchayat Samiti, Sri Karanpur, there was no vacant post and therefore, in view of longer stay of petitioners at Panchayat Samiti, Sri Karanpur, they were relieved with the direction to give joining at Panchayat Samiti, Sojat and Phalodi respectively.

4. Reply has not been filed by the respondents.

5. I have heard the arguments of the learned counsel for the petitioner as well as respondents.

6. There is no dispute on the point that through order dated 28.9.2004 (Annexure 1), the petitioners were not transferred.

7. There is also no dispute on the point that there is condition No.