State Of Rajasthan vs Mool Shanker
2022 Latest Caselaw 738 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 683/2021

1. State Of Rajasthan, Through The Secretary, Department

Of Medical And Health, Govt. Of Rajasthan, Jaipur.

2. The Principal Secretary, Panchayati Raj Department,

Government Of Rajasthan, Jaipur.

3. Director (Non Gazetted), Medial And Health Services,

Rajasthan, Jaipur.

4. Principal Medical Officer, Barmer.

----Appellants Versus Mool Shanker S/o Deva Ram, Aged About 38 Years, By Caste Jat,

R/o Village Murtala Gala, Post Mahabar, Tehsil Barmer, District

Barmer (Raj.).

----Respondent

D.B. Spl. Appl. Writ No. 17/2022

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 Churu.

4. Block Chief Medical And Health Officer, Rajgarh, District

Churu.

5. Principal Secretary, Department Of Rural Development

And Panchayati Raj, Jaipur, Rajasthan.

----Appellants Versus Krishna Devi W/o Shri Surendra Singh, Aged About 52 Years,

Resident Of Vill Kandhran Teh. Rajgarh, Distt. Churu At Present

Working As Anm, Chc, Rajgarh, The. Rajgarh, District Churu.

                                                               ----Respondent





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For Appellant(s)         :     Mr. K.S. Rajpurohit, AAG
through V.C.                   Mr. Rajat Arora.

For Respondent(s)        :     Mr. Rishabh Tayal
through V.C.



      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
          HON'BLE MS. JUSTICE REKHA BORANA

                                Judgment

14/01/2022

These appeals arise out of a common judgment of the

learned Single Judge dated 02.08.2021 passed in the respective

petitions.

Brief facts may be noted at the outset.

The State Government had transferred some of its activities

and employees and placed them at the disposal of the Panchayats

for working in various Panchayati Raj institutions. In furtherance

of this scheme, under a notification dated 11.03.2011, the State

Government had promulgated the Rajasthan Panchayati Raj

(Transferred Activities) Rules, 2011 (hereinafter to be referred to

as the 'Rules of 2011'). The term 'transferred employee' was

defined in Rule 2(iv) of the Rules of 2011 as to mean the

employees working on the posts relating to activities transferred

to the Panchayati Raj Institutions. Chapter-II of the said Rules

pertains to controlling of transferred employees. Rule 3 contained

in the said chapter reads as under:

"3. Status.- (1) The transferred employees of State Government shall remain the employees of the State Government and their services shall be governed by the service rules concerned of the State Government.

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(2) The cadre control of the transferred employees shall be with the department concerned of the State Government."

Rule 7, which pertains to disciplinary proceedings and provides

that the disciplinary matters of the transferred employees shall be

governed by the provisions of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958. Rules 8, which

pertains to transfer, is of considerable importance and reads as

under:

"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 Parishad concerned from one Panchayat 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."

As per this rule, the transfer of the transferred employees

shall be made under the transfer policy and directions of the State

Government. However, if such transfer is to be made within the

same Panchayat Samiti, the same would be done by the

Administration and Establishment Committee of the Panchayat

Samiti concerned. If such transfer is from one Panchayat Samiti to

another Panchayat Samiti within the same district, the same shall

be done by the District Establishment Committee of the Zila

Parishad concerned. When such transfer is from one district to

another district, it would be done by the department concerned

with the consent of the Panchayati Raj department. This rule shall

come up for reference later.

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The Health department of the State Government in exercise

of the powers under Rule 8, made a major reshuffle of its medical

and para-medical staff by passing transfer orders in the month of

December, 2020. These transfer orders included medical as well as

para-medical staff such as Doctors, Nurses etc and the transfer

orders were of all three kinds namely, within the same Pachayat

Samiti area, inter Panchayat Samiti areas within the same district,

as well as from one district to another. In the case of Krishna Devi,

the employee happened to be a Nursing staff and she has been

transferred from one district to another. In the case of Mool

Shanker, he also happened to be a Nursing staff and he has been

transferred from one Panchayat Samiti to another Panchayat

Samiti, but within the same district. Both these employees had

therefore approached the High Court and challenged their orders

of transfer primarily on the ground that such transfer orders were

passed by the Health department without the consent of the

Panchayati Raj department. We may record that large number of

similar writ petitions have been filed before the High Court. The

High Court had stayed all these transfer orders. Learned counsel

for the Government submitted that this has brought about a

difficult situation for the administration. In the case of those

employees, who have approached the High Court and whose

transfer orders were stayed the administration could not shift

them from their original place of posting. As against this, those

employees who were transferred vice the petitioners, who were

protected by the High Court, they left the charge of their original

place of posting and reported at the place of transfer. As a result,

there are large number of cases where there are two incumbents

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against one post and conversely there are number of places where

the posts have remained vacant without any posting.

The learned Single Judge by the impugned common

judgment allowed the petitions along with several other petitions

involving similar question of law. The learned Single Judge was of

the opinion that the requirement of obtaining consent from the

Panchayati Raj department was mandatory in nature and not

merely directory. Since in the present case, no such consent was

obtained, in the opinion of the learned Single Judge the orders

were bad in law. The State Government has filed appeals against

two of these orders and we are informed that the Government has

not accepted the judgment in the case of all the employees

similarly situated. We are also informed that close to 100 petitions

involving similar challenge are still pending and are not yet

disposed of by the learned Single Judge.

Learned counsel for the Government raised the following

contentions:

(i) The requirement of obtaining consent as referred in Rule 8 of

Rules of 2011 is directory and not mandatory. He submitted

that since there is no adverse consequence of not obtaining

consent, such requirement should be interpreted as

directory.

(ii) He pointed out that Rule 13 of the Rules of 2011 provides

that in case of doubt in relation to the interpretation and

scope of any of the provisions of the rules, the decision of

the Panchayat Raj department would be final. With the aid of

this provisions, he referred to the order dated 16.06.2018

issued by the Chief Secretary, Panchayat Raj department in

which it is provided that in view of the order passed by the

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State Government dated 12.03.2018 which contained

permission for effecting transfer during this period, obtaining

consent of the Panchayati Raj department for effecting

transfer would not be necessary. Heavy reliance was placed

on this order in order to contend that the learned Single

Judge committed error in quashing the transfer orders for

want of consent from the Panchayati Raj department.

(iii) He further submitted that the view taken by the learned

Single Judge has led to major administrative difficulties. As

pointed out earlier, there are large number of posts on which

there are no incumbents working on the existing posts and

number of posts have remained vacant. At the time when

the administration is dealing with major health challenges

due to Coronavirus, keeping such posts vacant is not

conducive of good administration.

On the other hand, Mr. Rishabh Tayal appeared for the

original petitioners on caveat and opposed the appeals contending

that the learned Single Judge has given cogent reasons for setting

aside the transfer orders. He submitted that Rule 8 refers to the

requirement of obtaining consent from the Panchayati Raj

department before effecting inter district transfers of the

employees. Admittedly, in the present case no such consent has

been obtained.

Having heard learned counsel for the parties and having

perused the documents on record, we find that Part-IX pertains to

the Panchayat which was inserted in the Constitution by the 73 rd

Amendment Act, 1992 with effect from 24.04.1993. This chapter

contains detailed provisions for constitution and composition of

Panchayats through which the Panchayati Raj institutions have

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been given constitutional status. The Panchayats have also been

vested with the powers of imposing taxes. As a process of

decentralizing the powers, the State Government also has

transferred some of the functions and activities in the Panchayats

under the said Rules of 2011. In order to enable the Panchayats to

carry out such activities, certain staff of the State Government has

also been placed at the disposal of the Panchayats. It is in this

context that Rule 2(iv) of the Rules refers to 'transferred

employees'. Sub-rule (1) of the Rule 3 provides that a transferred

employee of the State Government shall remain the employee of

the State Government and therefore his services shall be

governed by the service rules concerned of the State Government.

As per Sub-rule (2) of Rule 3, control of the transferred employee

would be with the department concerned of the State

Government. We have also noticed that as per Rule 7, the

disciplinary matters of the transferred employee shall be governed

by the provisions of the Rajasthan Civil Services (Classification,

Control and Appeal) Rules. In this context, we have to interpret

the provisions of Rule 8 pertaining to transfer of such employees.

As noted such transfer can take place under any one of the three

eventualities namely;

(i) When the transfer is within the same Panchayat Samiti;

(ii) Where the transfer is from one Panchayat Samiti to another

Panchayat Samiti but within the same district; and

(iii) Where such transfer is effected inter-district.

In the first eventuality, the power to transfer is vested with

the Pancahayat Samiti concerned. In the second case, the transfer

can be ordered by the District Establishment Committee of the Zila

Parishad. In the third scenario, when the transfer is inter-district,

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the same can be ordered by the department concerned but with

the consent of the Panchayati Raj department. In this case, we are

concerned with scenagrio no. 2 and 3. In case of Mool Shanker,

the transfer is within the same district but order has been passed

by the department of Health and not by the District Establishment

Committee of the Zila Parishad concerned, as is referred to, in

Rule 8. In case of Krishna Devi, the order of transfer has been

passed again by the department of Health but without the consent

of Panchayati Raj department.

First, dealing with the first situation, we may recall that as

per Rule 8, transfer of a transferred employee would be made

under the transfer policy and directions issued by the State

Government from time to time and when such transfer is within

the same district but from one Panchayat Samiti to another

Panchayat Samiti, the same would be made by the District

Establishment Committee of the Zila Parishad concerned. When

Rule 8 refers to the transfer to be made under the transfer policy

and directions issued by the State Government from time to time,

the same cannot completely take away the powers of the District

Establishment Committee of the Zila Parishad to order transfers.

Rule 8 in this context requires that the transfer that may be made

by the District Establishment Committee would have to follow the

transfer policy framed by the Government and directions issued by

them in this regard. In purported exercise of issuing transfer

policy or orders from time to time, the Government cannot

exercise sweeping powers of issuing specific transfer orders of the

staff completely disregarding the equation of the District

Establishment Committee of the Zila Parishad concerned. This

would amount to riding roughshod over the Panchayati Raj

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institution, which as noted earlier, has been given constitutional

status. Undoubtedly, such transfers would have to be in tune with

the Government policy and may also conform to the directions

that may be issued by the Government from time to time.

Nevertheless, the powers of the transfer have to be exercised by

the District Establishment Committee. In the present case, the

Health department has totally disregarded the District

Establishment Committee and reshuffled the medical and para-

medical staff within the same district and issued orders of transfer.

In our opinion, the same is wholly impermissible. This however

does not prevent the administration from undertaking the exercise

of rationalizing the medical and para-medical staff by posting

suitable personnel in sufficient numbers at various places within

the district. Nothing stated in the judgment of the learned Single

Judge or in this judgment would prevent the administration from

undertaking such exercise afresh and nothing would prevent the

Zila Parishad concerned from ordering transfers of such employees

within the same district by keeping in mind the Government policy

and directions issued from time to time for the purpose of

transfers.

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

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'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

any adverse penal consequences or not. However, this is not the

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only indicator nor the only means to interpret the statutory

provision either as mandatory or directory. In the present case,

treating such provision as directory, would completely neutralize

the Rule of the Panchayati Raj department, in the context of

transfer and posting of the Government employees who are

posted at the disposal of the Panchayati Raj institution for carrying

out the transfer activities. The consent of the Panchayati Raj

department, in our opinion, is therefore necessary before

transferring any such employee from one district to another.

Neither recourse to Rule 13 of the Rules of 2011 nor the order

dated 16.06.2018 passed by the Panchayati Raj department would

save the position. Rule 13 merely provides that in case of doubt in

relation to interpretation or scope of the Rules, the decision of the

Panchayati Raj department would be final. Firstly, we do not find

the Panchayati Raj department has interpreted this provision.

Secondly, such finality would not bind the Court when in exercise

of writ jurisdiction it examines the legality of the Government

action and in the context interpreting the Rule position. The order

dated 16.06.2018 merely records that in view of the permission

granted by the Government under order dated 12.03.2018, the

consent of the Panchayati Raj department before transferring

employee would not be necessary. Firstly, the order dated

12.03.2018 of the Government has not been produced before us

despite our earlier request and time being granted. Secondly, this

appears to be the order permitting transfer of the employees

during a certain period. The Panchayati Raj department cannot

abdicate its powers by providing that during such period transfer

of transferred employees can be done dehors the statutory

requirement.

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However, this would not complete the full story. We have

noticed that this 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 vacant

without anybody looking after it. Even if the situation has been

brought about on account of administrative errors, we would like

to find a way out of this impasse particularly looking to the great

challenges that the Government administration in general and the

Health department in particular is facing due to the recent third

wave of Coronavirus. Even otherwise it is not in interest of the

administration of public health that large number of posts are

unoccupied whereas some places have excess incumbents.

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 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

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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.

In the result both the appeals are disposed of in the

following manner:

In so far as the case of Mool Shanker is concerned, in our

view, the order of transfer could not have been passed by the

Health department since, essentially the power vests with the

District Establishment Committee of the Zila Parishad concerned

to order transfers. The judgment of the learned Single Judge is

therefore confirmed. However, nothing stated in the judgment of

the learned Single Judge or by us in this judgment would prevent

the District Establishment Committee concerned from ordering

transfers in consultation with the Health department.

So far as the case of Krishna Devi is concerned, this is the

case of inter-district transfer. Her transfer has been made without

the consent of the Panchayati Raj department which the learned

Single Judge has rightly not approved. However, as observed

above, in her case and all other similar cases, nothing stated in

the judgment of the learned Single Judge or in this judgment

would prevent the authorities from obtaining the ex-post facto

consent of the Panchayati Raj department. If so done, the same

would be seen as validation of the original order of transfer. It

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would not be necessary for the Health department to issue fresh

orders of transfers for such purpose.

Both the appeals are disposed of accordingly.

                                   (REKHA BORANA),J                                          (AKIL KURESHI),CJ
                                   110s,111s-jayesh/-









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