Rajasthan High Court - Jodhpur
State Of Rajasthan vs Rekha Kumari on 17 August, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 284/2022
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Secretariat, Jaipur.
2. Director, Medical And Health Services, Tilak Marg, Jaipur.
3. Chief Medical And Health Officer, District Bikaner.
4. Block Chief Medical And Health Officer, Sri Dungargarh,
District Bikaner.
5. Principal Secretary, Department Of Rural Development
And Panchayati Raj, Jaipur, Rajasthan.
----Appellants
Versus
Rekha Kumari D/o Shri Laxmi Narayan, Aged About 30 Years,
Village Tauliyasar, Tehsil Sri Dungargarh, District Bikaner, At
Present Working As Gnm, Phc Tauliyasar, Tehsil Sri Dungargarh,
Distt. Bikaner.
----Respondent
Connected with
D.B. Spl. Appl. Writ No. 508/2022
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Secretariat, Jaipur.
2. Director Non Gazetted, Medical And Health Services, Tilak
Marg, Jaipur.
3. Chief Medical And Health Officer, Ratangarh, District
Churu.
4. Block Chief Medical And Health Officer, Churu, District
Churu.
5. Principal Secretary, Department Of Rural Development
And Panchayati Raj, Rajasthan, Jaipur.
----Appellants
Versus
Rajesh Kumari W/o Shri Hansraj Puri, Aged About 40 Years,
Resident Of Jodi Patta Satyu, Taranagar, Churu.
----Respondent
Alongwith 89 Appeals mentioned in the Schedule
(Downloaded on 17/08/2022 at 08:42:18 PM)
(2 of 9) [SAW-284/2022]
For Appellant(s) : Mr. Karan Singh Rajpurohit, AAG, with
Mr. Rajat Arora
For Respondent(s) : Mr. R.S. Choudhary
Mr. Vikas Bijarnia
Mr. Yashpal Khileree
Mr. K.R. Saharan
Mr. S.K. Poonia
Mr. Surya Prakash, on behalf of
Mr. Tanwar Singh
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
Judgment pronounced on : 17/08/2022
Judgment Reserved on : 07/07/2022
BY THE COURT : PER HON'BLE MEHTA, J.
The instant bunch of 91 intra court appeals led by D.B.
Civil Special Appeal (Writ) No.284/2022 (State of Rajasthan & Ors.
Vs. Rekha Kumari) has been preferred by State of Rajasthan for
assailing the common impugned order dated 09.03.2022 passed
by the learned Single Bench accepting 99 writ petitions [led by
S.B. Civil Writ Petition No.3299/2022 - Anju Bala Vs. State of
Rajasthan & Ors.]. Details of the intra court appeals and the writ
petitions are mentioned in the Schedule appended to this
judgment.
The basic controversy involved in these appeals is as to
whether the employees, whose parent cadre is Medical and Health
Department and whose services have been provided to the
Panchayati Raj institution can be transferred by the Medical and
Health Department without following the procedure laid down
under Rule 8 of the Rajasthan Panchayati Raj (Transferred Activities)
(3 of 9) [SAW-284/2022]
Rules, 2011 (for short, hereinafter referred to as 'the Rules of
2011'), which reads as below:-
"8. Transfer.- Transfer of such transferred employees shall
be made under the transfer policy and directions issued by
the State Government from time to time, by:-
i. "the Administration and Establishment Committee of
the Panchayat Samiti concerned within the same
Panchayat Samiti.
ii. the District Establishment Committee of the Zila
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."
A Division Bench of this Court in the case of State of
Rajasthan & Ors. Vs. Samleta [D.B. Civil Special Appeal
(Writ) No.736/2018 decided on 11.10.2018] took a view that
as per Sub-rule (ii) of Rule 8 of the Rules of 2011, when an
employee, whose services are governed by the Panchayati Raj Act,
is proposed to be transferred from one district to another, there is
a prerequisite condition of obtaining prior consent of Panchayati
Raj Department irrespective of the fact that the employee is
surplus in the Panchayati Raj Department. This court is apprised
that the State of Rajasthan has assailed the Division Bench order
in the case of Samleta (supra) before Hon'ble the Supreme Court
by way of Special Leave Petition (Civil) Diary
No.41290/2019 which is pending.
In the cases of State of Rajasthan & Ors. Vs. Mool
Shankar [D.B. Civil Special Appeal (Writ) No.683/2021] and
State of Rajasthan & Ors. Vs. Krishna Devi [D.B. Civil
Special Appeal (Writ) No.17/2022] decided on 14.01.2022,
(4 of 9) [SAW-284/2022]
involving identical controversy, Division Bench of this Court
proceeded to reiterate the view taken in the case of Samleta
(supra) and held that while effecting inter-district transfers of the
employees transferred to the Panchayati Raj Department, the
powers are retained by the department concerned, but in all such
cases, the consent of the Panchayati Raj Department has to be
obtained. Such requirement of consent cannot be brought down
to a mere formality by suggesting that the same is not mandatory
but directory in nature. At the same time, the Hon'ble Division
Bench noticed that this requirement has brought about a grim
situation. The administration is saddled with two employees
against one vacant post in some cases and in some cases the
posts are lying vacant without anybody looking after it. The court
felt that even if the situation has been brought about on account
of administrative errors, a way out of this impasse is required to
be found particularly looking to the great challenges that the
Government administration in general and the Health Department
in particular is facing due to recent third wave of Corona virus.
Observing this, the court went on to hold that there was no
limitation or inhibition under the Rules by virtue of which, the ex-
post facto consent of the Panchayati Raj Department can not be
obtained. It was observed as below :-
"In this context, we do not find any limitation or inhibition
under the Rules by virtue of which the ex-post facto consent
of the Panchayati Raj department can not be obtained. The
consent of the Panchayati Raj department is of course
needed before effecting inter-district transfer as we have
already concluded. However, there is nothing in the Rules to
suggest that the same is a sine qua non and if the consent
is obtained post facto, the order of transfer cannot be
(5 of 9) [SAW-284/2022]
validated. We notice that in the judgment dated 11.10.2018
passed by the Division Bench of this Court in the case of
State of Rajasthan and others Vs. Samleta (D.B. Spl.
Appl. Writ No. 736/2018), the Court had confirmed the
judgment of the learned Single Judge setting aside orders of
transfers under similar circumstances where the consent of
the Panchayati Raj department was not obtained. In that
case, the counsel for the employees-original petitioners had
argued that the ex-post facto sanction granted by the
Panchayati Raj department would not save the order of
transfer. The Division Bench while confirming the view of
the learned Single Judge had not given any declaration on
this question. The judgment on this point is thus sub silentio
and in our view does not lay down any ratio of a binding
nature on this question. Under the circumstances, we
reiterate that the Rules of 2011 do not prohibit ex-post
facto sanction being granted by the Panchayati Raj
department and if such ex-post facto sanction is obtained
hereafter, it would be open for the Government to
regularize all orders of inter district transfers."
The present set of appeals involves inter-district
transfers by the Medical and Health Department of its employees,
whose services have earlier been transferred to the Panchayati Raj
Department. During pendency of the appeals, learned AAG Shri
Rajpurohit, has filed an additional affidavit with official note-
sheets, as per which, a proposal was moved to grant ex-post facto
sanction to validate transfer orders of surplus transferred
employees of the Panchayati Raj Department.
It is noteworthy from the affidavit that as per the
distribution of Departments amongst the Cabinet of Ministers, Shri
Parsadi Lal Meena, the Minister for Medical and Health Services,
Government of Rajasthan has been given independent charge of
Medical and Health Services under the Panchayati Raj Department.
After obtaining legal opinion and referring to the
(6 of 9) [SAW-284/2022]
Division Bench judgment in the case of Mool Shankar (supra), the
file was moved for grant of ex-post facto sanction to validate the
transfer orders passed earlier by the Medical and Health
Department. The Departmental officers proposed issuance of ex-
post facto sanction and the Minister Shri Meena has approved the
said proposal on 21.03.2022.
As a consequence of the above development, we are of
the view that the Panchayati Raj Department has lawfully granted
ex-post facto sanction as per the requirement of Rule 8 of the
Rules of 2011 to validate the questioned transfer orders.
It was the fervent contention of the learned counsel for
the respondent employees that ex-post facto consent does not
relate to the transfer orders at hand because the date mentioned
in the office note is 22.11.2021. This contention is not tenable for
the simple reason that this date refers to the distribution of
departments amongst the Ministers, whereby independent charge
of Medical and Health Services coming under the purview of
Panchayati Raj Department was assigned to Shri Parsadi Lal
Meena, the Minister for Medical and Health Services. As is evident
from the note-sheets annexed with the additional affidavit, both
the Departments have concurred on the transfers, which are
subject matter of challenge in this litigation. The action so taken
is compliant of the view taken by the Division Bench in the case of
Mool Shankar (supra) and hence, the requirement of consent of
the Panchayati Raj Department for effecting transfers of the
transferred employees of the Panchayati Raj Department has been
satisfied.
Consequently, the appeals deserve to be accepted. The
impugned order dated 09.03.2022 passed by the learned Single
(7 of 9) [SAW-284/2022]
Bench in the writ petitions mentioned in the Schedule is reversed.
The appeals are allowed, accordingly.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Pramod/-
Schedule
S. D.B. Civil S.B. Civil PARTY NAME Date of
No. Special Appeal Writ Petition impugned
(Writ) Number Number order
1 271/2022 3299/2022 Anju Bala State & Ors. 09.03.2022
2 285/2022 3319/2022 Sunita Devi State & Ors. 09.03.2022
3 286/2022 3329/2022 Munesh Kumari State & Ors. 09.03.2022
4 287/2022 3322/2022 Pinku State & Ors. 09.03.2022
5 288/2022 3334/2022 Savita State & Ors. 09.03.2022
6 289/2022 3605/2022 Murti Devi State & Ors. 09.03.2022
7 290/2022 3336/2022 Reshma State & Ors. 09.03.2022
8 291/2022 3278/2022 Sarita Devi State & Ors. 09.03.2022
9 292/2022 3325/2022 Manisha Kumar State & Ors. 09.03.2022
10 293/2022 3282/2022 Nirmala Kumari State & Ors. 09.03.2022
11 294/2022 3330/2022 Sunita State & Ors. 09.03.2022
12 295/2022 3315/2022 Manju Rani State & Ors. 09.03.2022
13 296/2022 3318/2022 Vimla Meghwal State & Ors. 09.03.2022
14 297/2022 3324/2022 Rakesh Kumari State & Ors. 09.03.2022
15 298/2022 3283/2022 Neetu State & Ors. 09.03.2022
16 299/2022 3284/2022 Sunita State & Ors. 09.03.2022
17 300/2022 3307/2022 Rampyari State & Ors. 09.03.2022
18 301/2022 3337/2022 Sunita State & Ors. 09.03.2022
19 302/2022 3297/2022 Sahnila State & Ors. 09.03.2022
20 303/2022 3281/2022 Nirmala Devi State & Ors. 09.03.2022
21 304/2022 3311/2022 Ankori State & Ors. 09.03.2022
22 387/2022 3677/2022 Ompati State & Ors. 09.03.2022
23 395/2022 3690/2022 Sushila State & Ors. 09.03.2022
24 398/2022 3453/2022 Sarla State & Ors. 09.03.2022
25 408/2022 3680/2022 Saroj Bala State & Ors. 09.03.2022
26 409/2022 3526/2022 Laxmi Meena State & Ors. 09.03.2022
27 412/2022 3300/2022 Sushila Devi State & Ors. 09.03.2022
28 416/2022 3649/2022 Baljeet Kaur State & Ors. 09.03.2022
29 429/2022 3513/2022 Sangeeta State & Ors. 09.03.2022
30 445/2022 3449/2022 Suman State & Ors. 09.03.2022
31 446/2022 3245/2022 Suman State & Ors. 09.03.2022
32 447/2022 3678/2022 Sumitra State & Ors. 09.03.2022
(8 of 9) [SAW-284/2022]
33 448/2022 3454/2022 Prem Kumari State & Ors. 09.03.2022
34 449/2022 3298/2022 Meenakshi State & Ors. 09.03.2022
35 450/2022 3433/2022 Sharmila State & Ors. 09.03.2022
36 451/2022 3488/2022 Sunita Kumari State & Ors. 09.03.2022
37 452/2022 3426/2022 Saroj State & Ors. 09.03.2022
38 453/2022 3277/2022 Manju Kumari State & Ors. 09.03.2022
39 454/2022 3428/2022 Sushila State & Ors. 09.03.2022
40 455/2022 3560/2022 Smt. Vijayanta State & Ors. 09.03.2022
41 456/2022 3545/2022 Smt. Urmila State & Ors. 09.03.2022
42 457/2022 3424/2022 Tara State & Ors. 09.03.2022
43 458/2022 3224/2022 Nisha Choudhary State & Ors. 09.03.2022
44 459/2022 3348/2022 Bhagwanti Dangi State & Ors. 09.03.2022
45 460/2022 3249/2022 Urmila State & Ors. 09.03.2022
46 462/2022 3509/2022 Sharda State & Ors. 09.03.2022
47 463/2022 3275/2022 Sulochana State & Ors. 09.03.2022
48 464/2022 3254/2022 Sharmila State & Ors. 09.03.2022
49 465/2022 3211/2022 Kaushalya State & Ors. 09.03.2022
50 466/2022 3246/2022 Shakuntala State & Ors. 09.03.2022
51 467/2022 3573/2022 Smt. Suman State & Ors. 09.03.2022
Kumari
52 468/2022 3222/2022 Rajbala State & Ors. 09.03.2022
53 469/2022 3429/2022 Gurpreet Kaur State & Ors. 09.03.2022
54 470/2022 3248/2022 Banta Devi State & Ors. 09.03.2022
55 471/2022 3691/2022 Santosh State & Ors. 09.03.2022
56 473/2022 3242/2022 Nirmala Devi State & Ors. 09.03.2022
57 474/2022 3327/2022 Ranjana State & Ors. 09.03.2022
58 475/2022 3210/2022 Poonam State & Ors. 09.03.2022
59 476/2022 3341/2022 Sushila Devi State & Ors. 09.03.2022
60 477/2022 3576/2022 Smt. Darshana State & Ors. 09.03.2022
61 478/2022 3356/2022 Suman State & Ors. 09.03.2022
62 479/2022 3580/2022 Smt. Priyanka State & Ors. 09.03.2022
Kumari
63 480/2022 3231/2022 Vinod Kumari State & Ors. 09.03.2022
64 481/2022 3575/2022 Smt. Kamla State & Ors. 09.03.2022
65 482/2022 3217/2022 Suman State & Ors. 09.03.2022
66 483/2022 3430/2022 Suman State & Ors. 09.03.2022
67 484/2022 3371/2022 Kamla Devi State & Ors. 09.03.2022
68 485/2022 3345/2022 Gulab Devi State & Ors. 09.03.2022
69 486/2022 3397/2022 Nirmala State & Ors. 09.03.2022
70 487/2022 3578/2022 Smt. Rajbala State & Ors. 09.03.2022
71 488/2022 3380/2022 Manju Nain State & Ors. 09.03.2022
72 489/2022 3260/2022 Kamlesh Kumari State & Ors. 09.03.2022
73 490/2022 3395/2022 Alpna State & Ors. 09.03.2022
74 491/2022 3612/2022 Suman Kumari State & Ors. 09.03.2022
75 492/2022 3303/2022 Santosh Thori State & Ors. 09.03.2022
76 493/2022 3230/2022 Batul Bano State & Ors. 09.03.2022
77 494/2022 3280/2022 Saroj Bala State & Ors. 09.03.2022
78 495/2022 3328/2022 Suman Dhaka State & Ors. 09.03.2022
79 496/2022 3214/2022 Suman Lata State & Ors. 09.03.2022
(9 of 9) [SAW-284/2022]
80 497/2022 3508/2022 Suman Kumari State & Ors. 09.03.2022
81 498/2022 3232/2022 Kavita State & Ors. 09.03.2022
82 499/2022 3366/2022 Kavita Kumari State & Ors. 09.03.2022
83 500/2022 3532/2022 Sangeeta Meena State & Ors. 09.03.2022
84 501/2022 3268/2022 Sarita State & Ors. 09.03.2022
85 502/2022 3243/2022 Kamlesh Kumari State & Ors. 09.03.2022
86 503/2022 3252/2022 Sakuntala State & Ors. 09.03.2022
Kumari Kaswa
87 504/2022 3231/2022 Pushpa Kumari State & Ors. 09.03.2022
88 505/2022 3362/2022 Smt. Monika State & Ors. 09.03.2022
89 506/2022 3274/2022 Santosh State & Ors. 09.03.2022
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