Point of Law: Rule 8 is not a provision dealing with the procedural requirement or formality of processing an application etc. As a matter of fact, it is a power given to the State officials to effect transfers – it cannot be equated with a provision, which is meant to facilitate justice and furthers its ends.

JUDGMENT :

1. Pursuant to 73rd Amendment in the Constitution of India, twenty nine subjects mentioned in the Eleventh Schedule were brought under Panchayati Raj Institutions to empower the Panchayat Raj in the State. The Rural Development and Panchayati Raj Department passed an order dated 02.10.2010 whereby activities including the funds and staff of some departments were transferred from their respective/parent departments to Panchayati Raj Department. In the spirit of 73rd Amendment in the Constitution, the State of Rajasthan promulgated the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (hereinafter referred to as “the Rules of 2011”), which specifically lays down the rules and regulations for transfer of the employees of the State Government.

2. Rule 8 of the Rules of 2011 provides that a transfer of an employee shall be made under the transfer policy and directions issued from time to time. Rule 12 further provides that in case the guidelines and directions are not followed, Panchayati Raj Department can initiate action against the Panchayati Raj Institutions/ Office bearers.

3. By way of the order dated 02.10.2010, issued by the Principal Secretary Medical & Health Department, all Sub-Centres, Primary Health Centres (PHC) and Community Health Centres (CHC) situated in various rural areas, including their staff were transferred to the Panachati Raj Institutions.

4. Pursuant to above decision of the State, services of the employees (including the petitioners) were ordered to be governed by the Rules of 2011. Consequently, though their parent department continues to be Medical & Health Department, but their other incidence of service, including transfer are governed by the Rules of 2011.

5. The petitioners (enumerated in the Schedule appended with the present order, which be treated an integral part of this order) have challenged transfer orders issued by the Director (Nongazetted), Medical & Health Services, Rajasthan Jaipur, being contrary to Rule 8 of the Rules of 2011.

6. Learned counsel for the petitioners submitted that impugned transfers made by the Medical & Health Department are in breach of Rule 8 of the Rules of 2011 and issue involved is squarely covered by the judgment dated 15.01.2020 rendered by this Court in case of Kiran Kumari Vs. State of Rajasthan & Ors. (SB Civil Writ Petition No.14964/2019).

7. Mr. K.S. Rajpurohit, learned Addl. Advocate General assisted by Mr. Rajat Arora could not controvert the legal position that the issue involved in the present writ petition has been decided by this Court in the case of Kiran Kumari (supra). He, however submitted that a very important and substantial argument relating to directory nature of the Rules of 2011 was not advanced, when the case of Kiran Kumari (supra) was heard and decided by this Court. He urged that as the issue of rule being directory goes to the root of the matter, the same be considered and decided in favour of the State and petitions be dismissed.

8. Navigating the Court through Rule 8 of the Rules of 2011, he contended that though expression “shall” has been used in the opening words of the Rule but the same is directory in nature. Hence, it is not necessary for the State Government/Medical & Health Department to seek/take consent of the Panchayati Raj Department, before effecting transfers from one District to another and even intra or inter-Panchayat Samiti transfers.

9. In support of his contention that inspite of use of word “shall”, Rule 8 is directory, learned Addl. Advocate General relied upon following judgments :-

(i) (2008) 12 SCC 372 (Bachahan Devi & Anr. Vs. Nagar Nigam, Gorakhpur & Anr.) Para - 17 (ii) (2009) 6 SCC 735 (Ram Deen Mayurya (Dr.) Vs. State of Uttar Pradesh & Ors.) Para – 43, 49, 52 (iii) AIR 1964 Raj. 223 (Sardar Mal Vs. Smt. Gayatri Devi) Para-23.

10. It was also argued that in light of Rule 3 of the Rules of 2011, since the service conditions as also the cadre control of transferred employees remains with the