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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, J.
Ravindra Kumar Tailor S/o. Shri Ramchandra Tailor & Ors. - Petitioners
Versus
State of Rajasthan, through its Secretary, Medical and Health Services, Government of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 8828 of 2022 Connected With S.B. Civil Writ Petition Nos. 8849, 8850, 8855, 8863, 8864, 8865, 8866, 8871, 8876, 8887, 8888, 8902, 8904, 8905, 8919, 8933, 8941, 8972, 9027, 9079, 9101, 9114, 9116, 9133, 9368, 9404, 9452, 9733, 9821, 10474, 10915, 11176, 10776, 11292, 11698, 11710, 11714, 11813, 11829, 11972, 12283, 12337, 12522, 12569 of 2022
Decided On : 19-09-2022
Rule 8 of the Rajasthan Panchayati Raj (Transferred Activities), Rules, 2011 requires that transfers of transferred employees must be made with the necessary consent from the Panchayati Raj Department. The definition of transferred employees includes both those working on sanctioned posts and surplus employees. Compliance with Rule 8 is mandatory for both surplus and non-surplus employees.
Fact of the Case:
The petitioners, who are transferred employees, challenged the orders of transfer issued by the respondents. The petitioners argued that the transfers violated Rule 8 of the Rules of 2011, as they were not made with the required consent of the Panchayati Raj Department. The respondents contended that the petitioners, being surplus employees, were not entitled to the protections of Rule 8. The court examined the definition of transferred employees and the provisions of Rule 8, and held that the transfers of both surplus and non-surplus employees must comply with the requirements of Rule 8. The court also rejected the respondents' argument that the petitioners had no locus standi to challenge their transfers. The court quashed the orders of transfer and directed the respondents to allow the petitioners to join back at their previous posts.
Finding of the Court:
The court analyzed the definition of transferred employees and the provisions of Rule 8 of the Rules of 2011. The court held that the definition of transferred employees includes both those working on sanctioned posts and surplus employees. The court also held that the transfers of both surplus and non-surplus employees must comply with the requirements of Rule 8, including obtaining the necessary consent from the Panchayati Raj Department. The court rejected the respondents' argument that the petitioners had no locus standi to challenge their transfers.
Ratio Decidendi: The transfers of both surplus and non-surplus employees must comply with the requirements of Rule 8 of the Rules of 2011, including obtaining the necessary consent from the Panchayati Raj Department. The petitioners have the locus standi to challenge their transfers if there is a violation of the provisions of Rule 8.
Result: The court quashed the orders of transfer and directed the respondents to allow the petitioners to join back at their previous posts.
ORDER :
1. These writ petitions have been filed by the petitioners aggrieved against the orders whereby they have been transferred by the Director (Non-Gazetted), Medical and Health Services and Additional Director (Admin.) Panchayati Raj (Medical) Department, Rajasthan, Jaipur.
2. As all the writ petitioners have raised similar issue, i.e. violation of Rule 8 of the Rajasthan Panchayati Raj (Transferred Activities), Rules, 2011 (‘Rules of 2011’), all the petitions have been taken up simultaneously for hearing and disposal.
3. The facts of Ravindra Kumar Tailor vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No.8828/2022 are being illustratively indicated. The petitioner, a Nurse Grade-II, was appointed by order dated 25.03.2008. During the course of his service, by order dated 03.12.2015 while working at C.H.C., Devli, Tonk, he was posted under working arrangement to A.N.M. Training Centre, Bhilwara. By order dated 31.12.2020, the petitioner was transferred/posted at A.N.M. Training Centre, Bhilwara by indicating the same as against the post of PHN.
4. While the petitioner was serving on the said post, an order dated 18.02.2022 (Annex.5) came to be issued by the Secretary, Medical and Health Department, Rajasthan, inter-alia providing that all those whose salary was not being drawn from the post, where they were working, and was being drawn from any other place, they must report at the office of Chief Medical and Health Officer.
5. By impugned order dated 15.06.2022 indicating that as the person(s) named therein were surplus on account of their working beyond the sanctioned posts, they were adjusted at the post indicated against their names. It was further indicated that the order was passed subject to decision in DBSAW No.271/2022 at Jodhpur and S.B. Civil Writ Petition No.6421/2022 at Jaipur Bench.
6. Other petitions pertain to the orders passed transferring the petitioners from one post to another, which are inter district/within the same Panchayat Samiti/from one Panchayat Samiti to another Panchayat Samiti.
7. Feeling aggrieved, the present writ petitions have been filed.
8. Learned counsel for the petitioners made submissions that the action of the respondents in transferring the petitioners is in violation of the provisions of Rule 8 of the Rules of 2011, inasmuch as the petitioners who are the transferred employees, could only be transferred by the Administration and Establishment Committee of the Panchayat Samiti, within the same Panchayat Samiti, District Establishment Committee of the Zila Parishad from one Panchayat Samiti to another Panchayat Samiti within the same district and the Department concerned from one district to another district, with the consent of the Panchayati Raj Department. It is submitted that the orders impugned which have been passed by the Secretary, are in violation of provisions wherein the transfers have taken place within the same Panchayat Samiti/from one Panchayat Samiti to another Panchayat Samiti within the same district, or where the transfer is from one district to another district, for lack of consent of the Panchayati Raj Department.
9. Further submissions were made that merely on account of the fact that the petitioners questioning order dated 15.06.2022 have been indicated as ‘surplus’, which aspect has been disputed in several cases based on the material produced therein; the provisions of Rules of 2011 cannot be given a go bye.
10. Reliance was placed on order in Samleta vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No.11862/2017 decided on 14.11.2017, upheld in State of Rajasthan & Ors. vs. Samleta : D.B.S.A.W. No.736/2018 decided on 11.10.2018.
11. Further submissions were made that the order impugned dated 15.06.2022 was passed subject to decision in State of Rajasthan & Ors. vs. Anju Bala : DBSAW No.271/2022, which appeal came to be decided in a Bunch, led by St
The court emphasized that compliance with transfer rules is mandatory, allowing ex-post facto consent to validate transfer orders while highlighting the need for humane considerations in administrati....
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 – ....
The central legal point established in the judgment is that transfers of employees from Panchayati Raj Institution must strictly comply with Rule 8 of the Rules of 2011.
Transfer orders must specify duty locations and consult local governing bodies per statutory requirements, fostering transparency in governance.
Rule 8(ii) seeks to ratify transfers affected, that too cannot be done – an act which is void ab-initio cannot be ratified and that too by authority which has usurped powers.
Judicial review of transfer orders is limited; absence of a defined transfer policy renders such orders arbitrary, necessitating formulation of a policy.
The main legal point established in the judgment is the mandatory nature of Rule 15(j) of the M.P. Jila Panchayat (Business) Rules, 1998 and the significance of compliance with Rule 3(b), (d) and 6(7....
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