Rajpal Singh vs State Of Rajasthan
2021 Latest Caselaw 7642 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 544/2021 Rajpal Singh S/o Surendra Singh, Aged About 27 Years, Village Dhani Charnan, Tehsil Nohar, District Hanumangarh, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

2. The Joint Secretary, Department Of Revenue (Group-1), Jaipur.

3. The Chairman, Board Of Revenue, Ajmer.

4. The District Collector, Jodhpur District, Barmer.

5. Bhiyan Ram, At Present Holding The Post Of Patwari, Patwar Mandal, Akdara, Tehsil Baytu, District Barmer.

                                                                  ----Respondents


For Petitioner(s)           :    Mr. Kuldeep Mathur
For Respondent(s)           :    Mr. Mrigraj Singh
                                 Mr. Moola Ram Choudhary for
                                 respondent No.5
                                 Mr. Manish Patel



                      JUSTICE DINESH MEHTA

                                  Judgment

Reportable                                                          18/03/2021

1. Though the matter comes up on board for consideration of

application under Article 226(3) of the Constitution of India,

seeking vacation of interim order dated 13.01.2021, but the

learned counsel appearing for the rival parties were in unison that

the matter be decided finally, as the arguments on the application

for vacating interim order will take as much time as the arguments

of final hearing of the matter would.

2. Hence, the matter was finally heard.

(2 of 13) [CW-544/2021]

3. The petitioner - a Patwari at the relevant time was posted in

Patwar Mandal Akadali, Tehsil Pachpadra, District Barmer, when he

was subjected to transfer vide order dated 31.12.2020.

4. The basic plank on which the petitioner has assailed his

transfer has been, that under Rule 9 of the Rajasthan Land

Revenue (Land Records) Rules, 1957 (hereinafter referred to as

"the Rules of 1957"), the State Government cannot transfer a

Patwari, sans his own request.

5. Before the arguments could even be opened, Mr. Mrigraj

Singh, learned counsel for the respondents pointed out that vide

recent amendment brought in force on 24.11.2020, Rule 9 of

Rules of 1957 has been amended and words "on his own request"

have been obliterated; as a result whereof, the State can now

transfer a Patwari as per provisions of Rule 9 of the Rules even in

absence of request made by concerned Patwari.

6. Mr. Mathur fairly conceded that after the amendment being

introduced, his basic argument that the State Government cannot

transfer the petitioner - a Patwari, from one District to another

without his own request, has lost its force, rather very foundation,

but argued that regardless of State's power to transfer a Patwari

under Rule 9, the State is not absolved of the obligation to follow

mandate of clause (ii) of Rule 9 of the Rules of 1957. The

competent authority has to satisfy himself about the requirement

or need of transfer before subjecting a Patwari to transfer, he

emphasised.

7. It was also argued that may be after the amendment in Rule

9, the State has been empowered to transfer a Patwari after the

amendment brought into effect vide notification dated 24.11.2020,

however there is no corresponding amendment brought in Rule

(3 of 13) [CW-544/2021]

412 and thus, the State Government is bound by the provisions

contained under Rule 412 of the Rules of 1957.

8. Inviting Court's attention towards Rule 9 and 412 of the

Rules of 1957, Mr. Mathur argued that the competent authority or

the State Government cannot normally transfer a Patwari, unless it

is satisfied that the transfer is necessary in the interest of

efficiency of work or to fill up the vacancy created by long leave,

resignation, dismissal, suspension or transfer of the Patwari etc.

9. Learned counsel submitted that even Rule 412 of the Rules of

1957 makes the transfer subject to conditions mentioned in Rule 9

of the Rules of 1957 and, thus, conditions contained in clause (ii)

of Rule 9 of the Rules of 1957 have to be satisfied before

subjecting a Patwari to transfer.

10. Highlighting the nature of duties and job responsibilities, he

contended that transfers of Patwari as a routine are not desirable.

In support of such stand, heavy reliance was placed upon the

judgment dated 28.11.2006, rendered in the case of Inder Singh

Vs. State of Raj.; reported in (2007) 1 RLW(Raj.) 737.

11. Having made above legal submission, learned counsel for the

petitioner took the Court through the basic fact, rather the

impugned order passed by the Board of Revenue and argued that

so far as petitioner is concerned, a simple indication has been

made that he is transferred from Patwar Mandal Akadali, Tehsil

Pachpadra, District Barmer to District Hanumangarh. With an

expression of astonishment he argued that the competent

authority who subjected the petitioner to transfer, was not even

aware as to whether any post is lying vacant or has become

vacant or any exigency has arisen in a particular Patwar Circle, so

(4 of 13) [CW-544/2021]

that the petitioner is/was required, yet he has transferred the

Patwari in the District of Hanumangarh.

12. Mr. Mrigraj Singh, learned counsel for the respondent

vehemently argued that so far as petitioner's basic ground about

State's power to transfer is concerned, that does not require any

argument in view of the amendment and if that argument goes,

then, transfer is nothing more than an incidence of service, for

which all the Government employees, even a Patwari can be

subjected to transfer, if administrative exigency so warrants.

13. He zealously read out the following stipulation appended with

the transfer order in question and submitted that even the formal

expression that "the transfer in question has been done for

administrative exigency" is also present in the order, hence, no

interference is warranted.

"mijksDr [email protected] iz"kklfud dkj.kksa ls fd;s tk jgsa gSA vr% dkfeZdksa dks ;k=k HkRrk ,oa ;ksxdkykf/k ns; gksxkA "

14. Mr. Singh contended that above expression is enough to

evince that the competent authority has satisfied himself about

the administrative exigency and an employee cannot claim that

the transfer order should contain reasons or ground of

administrative exigency.

15. In response to Mr. Mathur's argument that no place of

posting has been provided to the petitioner, it was argued by

learned counsel for the State that the petitioner has been

transferred to Hanumangarh District and the concerned District

Collector would provide him place of posting in terms of Rule 9(i)

of the Rules.

(5 of 13) [CW-544/2021]

16. In relation to petitioner's arguments that Rule 412 of the

Rules mandates that normally a Patwari should not be transferred,

Mr. Mrigraj Singh argued that Rule 412 is applicable only in case of

transfer within a District and the same does not apply when the

transfer is outside the District. His argument in other words has

been that since petitioner's transfer is from District Barmer to

Hanumangarh, Rule 412 does not apply and thus, the order

impugned dated 31.12.2020, which has been passed by the Board

of Revenue in exercise of power conferred under the provisions of

Rule 9(ib) of the Rules of 1957 cannot be faulted with.

17. Learned counsel relied upon judgment dated 03.01.2020,

passed by a coordinate Bench of this Court in a bunch of writ

petitions led by Gopalram Vs. State of Raj. & Anr. (S.B. Civil Writ

Petition No.14402/2019) and its affirmation by Division Bench vide

judgment dated 28th January, 2020 (Special Appeal Writ

No.53/2020).

18. Heard.

19. Before adverting to rival contentions, it would be appropriate

to reproduce the relevant provisions of Rule 9 and Rule 412 of the

Rules of 1957, which read as under:-

"9.Transfers. -(i) The Collector may transfer a Patwari from one circle or tehsil to another in his own district: but no transfer of a Patwari from one district to another shall be made without the sanction of the Member, Land Records, Board of Revenue. Transfers from one Division to Another will be sanctioned by the Board of Revenue. The Sub-Divisional Officers are also empowered to transfer a Patwari from one circle to another in the

(6 of 13) [CW-544/2021]

same tehsil or to another tehsil in their sub-division on sufficient grounds.

Provided that if a Patwari is transferred out of the district on his own request he shall rank junior to existing Patwar is of that district.

(ia) The Sub-Divisional Officer may transfer a Patwari anywhere within the Sub-Division and the Collector may transfer a Patwari anywhere within the District:

Provided that the State Government may direct the Collector for the transfer of a Patwari anywhere within the District.

(ib) The Divisional Commissioner may transfer a Patwari anywhere within the Division and the Board of Revenue may transfer a Patwari anywhere within the State:

Provided that the State Government may direct the Divisional Commissioner for the transfer of a Patwari anywhere within the Division or the Board of Revenue for the transfer of a Patwari anywhere within the State.

(ii) Transfers of patwaris should not be made unless the officer has satisfied himself that such transfer is necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of a Patwari. The Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charge to his successor. The Tehsildar may, with the approval of the Sub-Divisional Officer, get the incomplete record completed by employing extra staff and paying such staff by deducting the required amount from the salary of the negligent Patwari. The unsatisfactory work or conduct of a

(7 of 13) [CW-544/2021]

Patwari should not be a ground for his transfer but for penal action.

412. Administrative matters pertaining to Patwaris.

- The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are ordinarily undesirable and should on no account be made to suit the convenience of individuals. They can only be made under the conditions given in paragraph 9 and these conditions should be strictly observed. In order to avoid unnecessary transfers, Patwaris picked out for transfer, should, so far as possible be exchanged with one another rather than with other Patwaris.

Transfers by way of punishment are not contemplated by law. Moreover, a transfer is hardly a substitute for punishment."

20. A careful reading of Rule 9 and 412 of the Rules of 1957 and

its comparison with other corresponding provisions of transfer in

other service rules, reveals that there is a sea difference in the

provisions relating to transfer of Patwaris. Transfer in case of

Patwaris is considered as an exception and thus, it cannot be

taken as an incidence of service.

21. True it is, that a hierarchy has been provided to transfer a

Patwari in Rule 9, but irrespective of the pedastral at which the

authority transferring a Patwari, is placed, he has to ensure that it

falls within the exceptions enumerated under clause (ii) of Rule 9.

Clause (ii) rather begins with a negative mandate; it enjoins upon

the competent authority to be satisfied about existence of either of

the two contingencies - (i) transfer is necessitated in the interest

of efficiency of work or (ii) to fill up vacancy.

(8 of 13) [CW-544/2021]

22. Expression "in the interest of efficiency of work" is having its

own tone and shade - it cannot be equated with an administrative

exigency, simplicitor. That apart, last sentence of Rule 412

forecloses option of the officer to transfer a Patwari even in the

event of his unsatisfactory work or conduct - "the unsatisfactory

work or conduct of a Patwari should not be a ground for his

transfer but for penal action". That apart, Rule 412 provides to an

extent that in case of transfers, the transfer must be mutual- with

one another rather than with other Patwaris.

23. Similar opinion, though more beautifully and more

authoritatively has been expressed by this Court in case of Inder

Singh (supra). Following paragraphs of the judgment of the Inder

Singh(supra) require special mention, hence, they are being

echoed:-

"22. On touching merits of the cases, from perusal of the pleadings and the record of the respondents, I found whole sum violation of Rule 9 and 412 of the Rules of 1957. The government servant other than the Patwaris in State of Rajasthan may be subjected to transfer looking to administrative exigency as per Rule 20 of the Rajasthan Service Rules, 1959, however, in the cases of Patwaris special provisions are prescribed for effecting their transfers under Rule 9 of the Rules of 1957.

23. According to Rule 9 of the Rules of 1957 a Patwari from one Tehsil to another Tehsil in the same district can be transferred by the Collector on being satisfied that such transfer is necessary in interest of efficiency of work or to fill up the vacancies created by long leave, resignation, dismissal, suspension or transfer of a Patwari. Sub-

rule (ii) of Rule 9 of the Rules of 1957 further

(9 of 13) [CW-544/2021]

provides that the Patwari on going transfer before getting relieved shall have to complete all his record and clear all his work in arrear. The arrears of work may further be completed by employing extra staff in the event of transfer of a Patwari. The requirements of Rule 9 of the Rules of 1957 to transfer a Patwari are further asserted and reiterated by Rule 412 of the Rules of 1957 to the extent that a transfer of Patwari is ordinarily undesirable and should not be made to suit convenience of individuals. The provisions of Rule 9 read with Rule 412 of the Rules of 1957 make it clear that the transfer of a Patwari is not a normal incidence of service but is an exception. The legislature chose to prescribe statutory guidelines for transfers of Patwaris looking to their special status in land revenue and land record operations.

24. A Patwari is a basic administrative unit in administrative hierarchy of government that is dealing with the land revenue, land records and settlement of land. A Patwari is required to discharge quite important statutory duties as prescribed under Chapter-III of the Rules of 1957. A Patwari is a living link between the government and the landholders. The State of Rajasthan, as other parts of the country, is also dominated by farmers and the largest part of the population is involved in profession of agriculture. A Patwari is required to keep living relations with the agriculturists and also required to keep absolute vigilance with revenue records to protect rights of the State and also to maintain harmony and peace among land holders and to avoid unwanted land disputes in his patwar circle. Looking to important statutory duties of a Patwari the law framers provide a special procedure for effecting their transfers. The administrative

(10 of 13) [CW-544/2021]

officers must follow the statutory requirements prescribed to transfer a Patwari. The compliance of the provisions of Rule 9 read with Rule 412 of the Rules of 1957, while transferring a Patwari is mandatory."

24. This being the position, even if the State or the competent

authority wishes to transfer a Patwari from one place to another,

he has to satisfy himself about the interest of efficiency of work or

to fill the vacant post.

25. In the opinion of this Court, going by the spirit of Rule 9,

particularly clause (ii) thereof, observations made by this Court in

Inder Singh' case (supra), transfer of Patwaris cannot be resorted

to, as a matter of course.

26. In the present case, neither such satisfaction has been

recorded, nor the State has brought on record such satisfaction

arrived at by competent authority, before making extensive, rather

indiscriminate exercise of moving Patwaris.

27. In considered opinion of this Court, the fact that the

petitioner has been shunted from Patwar Mandal Akadali, Tehsil

Pachpadra, District Barmer to District Hanumangarh, without

indicating Patwar Circle or even Tehsil is enough to show lack of

application of mind. It cannot be inferred that the competent

authority was aware of the present vacant position in District

Hanumangarh and that too the requirement of petitioner's

efficiency in such Patwar Circle, for which his transfer was

warranted.

28. If the competent authority has not decided or was not aware,

where the concerned Patwari is to be transferred, it cannot be

presumed that the competent authority has applied its mind

(11 of 13) [CW-544/2021]

towards the vacant position, falling vacant on account of

exigencies mentioned in clause (ii) of Rule 9 of the Rules of 1957.

Nor can he be presumed to have ascertained that interest of

efficiency of work required that petitioner should be transferred to

a far flung place at Hanumangarh.

29. Adverting to Division Bench judgment in the case of

Gopalram (supra), suffice it to observe that the facts of the said

case were entirely different. The basic ground for which the

petitioner had challenged his transfer was that it is the State

Government alone, which can transfer a Patwari and the District

Collector cannot by himself transfer a Patwari unless directed by

the State Government so to do. That apart the facts as noticed in

the judgment and finding recorded therein, particularly in para

No.12 shows that the concerned petitioner's transfer was on

account of administrative exigency, interalia, to fill up the vacant

post. Contra-distinction to the decided judgment, the facts and

questions involved in the present case are entirely different. In

the present case neither the order impugned nor does material

placed on record is sufficient to satisfy that petitioner's transfer

was effectuated in a bid to fill up vacant post.

30. It will not be out of place to reproduce para No.12 and 13 of

the Division Bench judgment dated 28.01.2020 in the case of

Gopalram (supra), relied upon by learned Government Counsel:-

"12. Coming to the contention of the appellant that the transfer order issued by the District Collector is violative of provisions of Rule 9 (ii) and Rule 412, a conjoint reading of Rule 9 and Rule 412 indicates that a Patwari should not be ordinarily transferred, but then, he can always be transferred when considered necessary in the interest of efficiency of work or to fill

(12 of 13) [CW-544/2021]

up vacancy created by long leave, resignation, dismissal, suspension or transfer of the Patwari.

Suffice it to say that besides for administrative exigency, a Patwari can be transferred even to fill up the vacant post created on account of various contingencies enumerated. Thus, on account of administrative exigency, inter-alia to fill up the vacant posts, if number of employees holding the post of Patwaris are transferred within the District, in no manner, it can be said that the order impugned passed by the District Collector without recording the satisfaction regarding necessity in the interest of efficiency of work, is violative of provisions of Rule 9

(ii) and Rule 412 of the Rules of 1957. As a matter of fact, the order impugned by itself reflects that the transfers have been effected for administrative exigency to fill up the vacant posts.

13. Admittedly, the transfer of a Patwari from one place to another within the Sub-Division, District, Division or State is regulated by Rule 9 of the Rules of 1957 which nowhere restricts the transfer of a Patwari prior to completion of a particular period of posting at a particular place. The circular/instructions issued by the State Government providing for transfer of Patwari after completion of the tenure of two years, are in the nature of guidelines not enforceable and cannot be construed in the manner suggested so as to put absolute restriction on the power to be exercised by the authorities enumerated under Rule 9 to transfer a Patwari for administrative exigency or other contingencies specified. In other words, notwithstanding the instructions issued by the State Government as aforesaid, the authority empowered can transfer a Patwari at any time for administrative exigency in accordance with Rule 9 of the Rules. It is a different matter that even

(13 of 13) [CW-544/2021]

otherwise in absence of administrative exigency, an employee holding the transferable post cannot be frequently transferred by his employer at his whims and fancy, but on the facts and in the circumstances of the case, in no manner, it can be inferred that the appellant has been transferred without there being any administrative exigency and it is not even the case of the appellant that he has been subjected to frequent transfer."

31. As an upshot of discussion foregoing, this Court has no

hesitation in holding that the petitioner has been subjected to

transfer, contrary to the mandate of Rule 9(ii) of 1957. Impugned

order thus, deserves to be quashed.

32. The same is hereby done. The impugned transfer order

dated 31.12.2020 qua the petitioner, is, hereby, quashed.

33. The writ petition stands allowed as above.

34. Stay petition also stands disposed of accordingly.

(DINESH MEHTA),J 248-Ramesh/-

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