Consent from the Panchayati Raj department is mandatory for inter-district transfers, but ex-post facto consent can validate such transfers if obtained within a reasonable timeframe.

ORDER :

1. Heard.

2. The present appeal has been filed assailing the order dated 05.02.2025, passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No.1815/2025 (Ganga Singh Vs. State of Rajasthan & Ors.), mainly on the ground that the said order has been passed in violation of the provisions contained in Rule 8(iii) of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011.

3. Learned counsel appearing for the appellant would submit that the judgment dated 11.10.2018, passed by the Division Bench of this Court in the case of State of Rajasthan & Ors. Vs. Samleta (D.B. Special Appeal Writ No.736/2018) was not properly appreciated and the judgment dated 14.01.2022, rendered in the case of State of Rajasthan & Ors. Vs. Mool Shanker (D.B. Special Appeal Writ No.683/2021) has also not been correctly interpreted by the learned Single Judge. He would further submit that the judgment in the case of State of Samleta (Supra) is very clear that prior consent is necessary.

4. It is next submitted by learned counsel for the appellant that the learned Single Judge, despite having found that consent has not been obtained, dismissed the writ petition with a direction to Panchayat Department to consider ex-post facto consent within a period of 30 days, which amounts to re-writing the provisions of law.

5. The reliance placed on the judgment in the case Samleta (supra) is misconceived. The aforesaid judgment was taken into consideration and then explained by this Court in the subsequent judgment in the case of Mool Shanker (supra). In that case, the Division Bench of this Court explained the earlier judgment in the case of Samleta (supra) as below:-

“Coming to the validity of the transfer orders of the staff which effects inter-district transfers, the question that arises is whether the Health department can order such orders without obtaining consent of the Panchayati Raj department. The term ‘consent’ has not been defined in the rules but carries the specific connotation in legal term. Consent has been defined in Section 13 of the Contract Act, 1872 as two or more persons are said to be in consent when they agree upon the same thing in the same sense. The Law Lexicon by P Ramanatha Aiyar further explains the term ‘consent’ as an act of reason, accompanied with deliberation, the mind weighing as in a balance the good and evil on each side. The Law Lexicon by Sumeet Malik defines the term ‘consent’ as an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. The legislature has thus used the term ‘consent’ which has a specific legal connotation. Such consent cannot be tacit or through non-resistance. It must be expressed in specific term and through conscious decision making process.

While effecting inter-district transfers of transferred employees, the powers are retained by the department concerned but in all such cases the consent of the Panchayati Raj department has to be obtained. This has dual purpose. The cadre controlling and the powers of posting an employee across the district in the State would be retained with the parent department of the employee but at the same time since such an employee has been placed at the disposal of Panchayati Raj institution, the Panchayati Raj department would be in ideal position to concur or object to any such inter-district transfer. Such requirement of consent cannot be brought down to a mere formality by suggesting that the same is not mandatory but directory in nature. We are conscious of the decisions of the Supreme Court which suggests that one of the indicators of legal requirement being mandatory or directory is whether non-adherence to such requirement leads to