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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Akil Abdul Hamid Kureshi, Rekha Borana, JJ.
State Of Rajasthan, Through The Secretary, Department Of Medical And Health and Ors. – Appellant
Versus
Mool Shanker S/o Deva Ram – Respondent
D.B. Spl. Appl. Writ Nos. 683 of 2021 and 17 of 2022
Decided On : 14-01-2022
Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 - Rule 3 - Civil Services - Posts relating to activities transferred - Employees working on posts relating to activities transferred - Controlling of transferred employees - State Government had transferred some of its activities and employees and placed them at the disposal of Panchayats for working in various Panchayati Raj institutions - In furtherance of this scheme a notification State Government had promulgated Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 - Term transferred employee was defined in Rule 2(iv) of the Rules of 2011 as to mean employees working on posts relating to activities transferred to Panchayati Raj Institutions - Chapter-II of the said Rules pertains to controlling of transferred employees - Held, Court do not find any limitation or inhibition Rules by virtue of which the ex-post facto consent of Panchayati Raj department cannot be obtained - Consent of Panchayati Raj department is of course needed before effecting inter-district transfer as court have already concluded - However there is nothing in Rules to suggest that same is a sine qua non and if consent is obtained post facto order of transfer cannot be validated – Court notice that in judgment passed by Division Bench of this Court in case of State of Rajasthan and others Court had confirmed judgment of Single Judge setting aside orders of transfers similar where consent of Panchayati Raj department was not obtained - In that case counsel for employees-original petitioners had argued that ex-post facto sanction granted by Panchayati Raj department would not save order of transfer - Division Bench while confirming view of Single Judge had not given any declaration on this question - Appeals are disposed of accordingly.
JUDGMENT :
1. These appeals arise out of a common judgment of the learned Single Judge dated 02.08.2021 passed in the respective petitions.
2. Brief facts may be noted at the outset.
3. The State Government had transferred some of its activities and employees and placed them at the disposal of the Panchayats for working in various Panchayati Raj institutions. In furtherance of this scheme, under a notification dated 11.03.2011, the State Government had promulgated the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (hereinafter to be referred to as the 'Rules of 2011'). The term transferred employee' was defined in Rule 2(iv) of the Rules of 2011 as to mean the employees working on the posts relating to activities transferred to the Panchayati Raj Institutions. Chapter-II of the said Rules pertains to controlling of transferred employees. Rule 3 contained in the said chapter reads as under:
(2) The cadre control of the transferred employees shall be with the department concerned of the State Government."
4. Rule 7, which pertains to disciplinary proceedings and provides that the disciplinary matters of the transferred employees shall be governed by the provisions of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. Rules 8, which pertains to transfer, is of considerable importance and reads as under:
(i) the Administration and Establishment Committee of the Panchayat Samiti concerned within the same Panchayat Samiti.
(ii) the District Establishment Committee of the Zila Parishad concerned from one Panchayat Samiti to another Panchayat Samiti within the same District.
(iii) the department concerned from one district to another district with the consent of the Panchayati Raj Department."
5. As per this rule, the transfer of the transferred employees shall be made under the transfer policy and directions of the State Government. However, if such transfer is to be made within the same Panchayat Samiti, the same would be done by the Administration and Establishment Committee of the Panchayat Samiti concerned. If such transfer is from one Panchayat Samiti to another Panchayat Samiti within the same district, the same shall be done by the District Establishment Committee of the Zila Parishad concerned. When such transfer is from one district to another district, it would be done by the department concerned with the consent of the Panchayati Raj department. This rule shall come up for reference later.
6. The Health department of the State Government in exercise of the powers under Rule 8, made a major reshuffle of its medical and para-medical staff by passing transfer orders in the month of December, 2020. These transfer orders included medical as well as para-medical staff such as Doctors, Nurses etc and the transfer orders were of all three kinds namely, within the same Panchayat Samiti area, inter Panchayat Samiti areas within the same district, as well as from one district to another. In the case of Krishna Devi, the employee happened to be a Nursing staff and she has been transferred from one district to another. In the case of Mool Shanker, he also happened to be a Nursing staff and he has been transferred from one Panchayat Samiti to another Panchayat Samiti, but within the same district. Both these employees had therefore approached the High Court and challenged their orders of transfer primarily on the ground that such transfer orders were passed by the Health department without the consent of the Panchayati Raj department. We may record that large number of similar writ petitions have been filed before the High Court. The High Court
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