Ram Pratap vs State of Rajasthan - 1980 Supreme(Raj) 403

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1980 Supreme(Raj) 403

RAJASTHAN HIGH COURT
G.M.Lodha, J.
Ram Pratap - Appellant
Versus
State of Rajasthan - Respondent
S.B.C.W. P No. 1418 of 1980.
Decided On : 3-12-1980

Important Points

Section 86(9A) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is ultra vires and unconstitutional as it is an excessive delegation of legislative power, violates the principle of separation of powers, and is discriminatory and violative of Article 14 of the Constitution.

Subject

Constitutional Law - Delegation of Legislative Power

Headnote

The Rajasthan High Court held that Section 86(9A) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, which gives the State Government the power to transfer employees of Panchayat Samitis and Zila Parishads, is ultra vires and unconstitutional. The Court held that the provision is an excessive delegation of legislative power and violates the principle of separation of powers. The Court also held that the provision is discriminatory and violative of Article 14 of the Constitution.

Fact of the Case:

Thirty writ petitions were filed by Primary School Teachers working in various Panchayat Samitis of Rajasthan challenging the orders of their transfer by the State Government. The petitioners argued that the transfer orders were not speaking orders, were arbitrary, and were issued without any material to form an opinion. The State Government contended that the ultimate responsibility of development work in all areas administered by the Panchayat Samitis and Zila Parishads is of the State Government and that the power of transfer has been conferred on the State Government to ensure efficient administration.

Finding of the Court:

The Court held that a transfer order need not be a speaking order and that the requirement for a speaking order cannot be insisted upon in the case of an order of transfer simpliciter, as contemplated by section 86 sub-section (9-A) of the Act. The Court also held that the State Government has not been able to place on record any material on the basis of which, the authority conferred by sec. 86(9-A) exercised the powers of transfer in the present cases. The Court further held that Section 86(9A) of the Act is ultra vires and unconstitutional as it is an excessive delegation of legislative power, violates the principle of separation of powers, and is discriminatory and violative of Article 14 of the Constitution.

Issues: 1. Whether Section 86(9A) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is ultra vires and unconstitutional? 2. Whether the transfer orders issued by the State Government are valid?

Ratio Decidendi: 1. The Court held that Section 86(9A) of the Act is ultra vires and unconstitutional as it is an excessive delegation of legislative power, violates the principle of separation of powers, and is discriminatory and violative of Article 14 of the Constitution. 2. The Court held that the transfer orders issued by the State Government are invalid as they were issued under Section 86(9A) which has been held to be ultra vires.

Final Decision: The Court allowed the writ petitions, quashed the impugned transfer orders, and declared Section 86(9A) of the Act to be ultra vires and unconstitutional.

JUDGMENT

1. - These thirty writ petitions have been filed by the Primary School Teachers, working in the various Panchayat Samitis of Rajasthan against the orders of their transfer by respondent No. 1, State of Rajasthan.

2. It is not necessary to mention the facts about the experience and the academic career of each of the petitioners because nothing turns upon them in these cases- The undisputed fact is that they are all Assistant Teachers in the Primary Schools, which are functioning under the various Panchayat Samitis in Rajasthan. The Rajasthan Panchayat' Law contemplates a three tier system where the basic unit is a Gram Panchayat. A Panchayat Samiti has been constituted which includes the area of number of Gram Panchayats. The apex body is the Zila Parishad which governs and supervises the functions of a number of Panchayat Samitis under it and the Gram Panchavats. This three tier system is regulated by the two Acts which are known as the Rajasthan Panchayat Act. 1953 (hereinafter referred to as the Act of 1953 and the Rajasthan Panchayat Samitis and Zila Ptriihads Act, 1959 (hereinafter called the Act of 1959).

3. The employees of these Panchayat Samities and Zila Parishads are governed by the Rajasthan Panchayat Samitis and Zila Parisheds Rules, 1959 (hereinafter referred to as 'the Rules').

4. According to rule 29, transfer of an employee is to be regulated by a procedure which involves consultation of the various Panchayat Samitis, Zila Parishads and the Commission. Rule 29 is as under:-

"29. Transfer outside the District:- The name of the employee desiring transfer or desired to be transferred from one district to another shall be communicated to the Commission by the Panchayat Samitis or the Zila Parishads, as the case may be. The Commission shall thereupon enter these names in a district wise list.

(2) Appointment by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the Commission which shall consult the Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control they are proposed to be transferred.

(3) ....

(4) .... ...... .....
It would be seen that the Commission is required to maintain a list in consultation of the Panchayat Samiti or the Zila Parishad as the case may be under whose administrative control the employee sought to be transferred is working and also under whose administrative control he is sought lo be transferred, and further both are required to be consulted for transfer in spite of the above detailed procedure contained in Rule 29, the State Government has retained to itself the powers of transfer of any member of the service or one Panchayat Samiti to another Panchayat Samiti where within the same State or outside it, by enactment of section 86 (9A). Ibis sub-section further gives powers to the State Government to stay the operation or cancel any order of transfer made under this sub-section or the rules made thereunder.

5. The petitioners have challenged the transfer orders on a number of grounds. It was argued that the orders are not speaking orders and as such, they are liable to be quashed. The transfers were further challenged on tho ground that they have not been made on the ground of administrative exigencies it hut the same have been done arbitrarily There was no material before the State Government to form any opinion to make an order of transfer. Since no reasons have been given in the order of transfer, the impugned orders are liable to be quashed on this simple ground.

6. It was also argued that the primary school teachers in the Primary Schools are lowerest in the ladder and as they are low paid employees, they should not be transferred unless they are compelling reasons Since the transfer orders have been passed arbitrarily, it has undermined the rule of law. Lastly, it was submitted that section 86 (9 A) is ultra vires because it gives unbridled, unrestricted, un-regulated, arbitrar