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.

ORDER :

1. Learned counsel for the parties jointly submit that the controversy involved in the present matter is squarely covered by the judgment passed by this Court in Kiran Kumari Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.14964/2019), decided on 15.01.2020; the operative portion of the judgment reads as under :-

"14. Heard.

15. A bare reading of Rule 8 of the Rules of 2011 leaves no room for ambiguity that transfer of the employees, whose services have been transferred to Panchayati Raj institution can be made by an authority who is authorized to transfer such employee, as has been clearly defined rather prescribed in the Rule 8 itself, viz. (i) in case of transfer within Panchayat Samiti – Administration and Establishment Committee of Panchayat Samiti, (ii) in case of transfer from one Panchayat Samiti to another Panchayat Samiti within the same District – District Establishment Committee of the Zila Parishad and (iii) in case of transfer from one District to another or inter district transfer – department concerned with consent of Panchayati Raj Department.

16. This Court is unable to accept the argument advanced by learned counsel for the respondents that by virtue of order dated 16.06.2018, the State Government has given an in-principle consent for transfer and has permitted transfers by the Medical & Health Department in case of intra Panchayat Samiti and inter Panchayat Samiti also.

17. Rules of 2011 have been framed under Article 309 of the Constitution and they have statutory force. Any order or circular, may it be passed by the Chief Secretary, cannot alter, obliterate or override the provisions contained in the Rules. This Court hardly finds any substance in the arguments of learned Additional Advocate General that since the State legislature or rule making authority cannot amend the Rules every of and on, as and when required, executive order passed by the State Government can do the same and such administrative order can be issued in public interest and to meet the exigencies.

18. All the judgments cited by learned counsel for the petitioners right from the judgment dated 14.11.2017 in case of Samleta (supra) till the judgment dated 28.05.2019 in case of Harish Chandra Katara (supra), have consistently held that Rule 8 of the Rules of 2011 is sacrosanct and the State Government cannot transfer its staff/employee dehors the provisions contained in Rule 8 of the Rules of 2011. Relevant portions of the judgments aforesaid are being reproduced hereunder :

(i) (Samleta Vs. State of Rajasthan & Ors.) :

“3. concededly no such consent was taken. I note that vide order dated 20.09.2017 it was directed that joining of duties by the petitioner pursuant to impugned transfer order dated 15.09.2017 at the place where she has been transferred shall be subject to the decision of the writ petition.

4. The respondents have not been able to show to the Court as to why consent of the Panchayati Department is not warranted.”

(ii) (State of Raj. & Ors. Vs. Samleta) :

“Sub-rule (ii) of Rule 8 of the Rajasthan Panchayati Raj (Transfer Activities) Rules, 2011 clearly postulates that when a person is transferred from one District to another, there is a prerequisite condition of obtaining prior consent of Panchayati Raj Department. In the present case, the respondent is an employee of the Panchayati Raj Institution and she has been transferred from one district to another. Admittedly, no consent as per Rule 8 of the Rules of 2011 was obtained from the Panchayati Raj Department and therefore, her transfer is bad and in violation of the provisions of Rule 8 of the Rules of 2011. Even in the cases of transfer of surplus employees, consent has to be obtained from the Panchayati Raj Department.

In view of the above observations, we are not inclined to interfere in the order passed by the learned Single Judge. The appeal is, therefore, dismissed.”

(iii) (Smt. Bimla Devi Vs. State of Raj. & Ors.) :

“Sh. S.K. Gupta Additional Advocate General