Nirmala Devi vs State Of Rajasthan
2022 Latest Caselaw 3696 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3299/2022

Anju Bala W/o Shri Daleep Singh Saharan, aged about 37 Years, Resident of Ward No. 1, MP Chauk, Sadulpur, Rajgarh, Churu.

----Petitioner Versus

1. State of Rajasthan through the Secretary, Department of Medical and Health, Secretariat, Jaipur

2. Director (Non-Gazetted) Medical & Health Services, Tilak Marg, Jaipur.

3. Chief Medical and Health officer, Ratangarh, District Churu.

4. Block Chief Medical and Health officer, Rajgarh, District Churu

5. Principal Secretary, Department of Rural Development and Panchayati Raj, Rajasthan, Jaipur

6. Chief Executive Officer, Zila Parishad, Churu

7. Development Officer, Panchayat Samiti, Rajgarh, District Churu

----Respondents Alongwith connected 99 writ petitions mentioned in the Schedule

For Petitioner(s) : Mr. Vikas Bijarnia, Mr. R.S. Choudhary Mr. Sumer Singh Gour, Mr. K.R.

Saharan, Mr. Rohit Kaswan, Mr. Sanjay Kumar Poonia, Mr. R.R.

Ankiya, Mr. Deepak Pareek, Mr. Manoj Bohra, Mr. Om Prakash Kumawat, Mr. B.R. Jajra, Mr. Rakesh Matoria & Mr. Jai Naveen.

For Respondent(s) : Ms. Vandana Bhansali, AGC with Ms. Vrinda Samdani.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order 09/03/2022

The present bunch of 100 writ petitions, enlisted in the

appended Schedule give rise to same issue, which shall be treated

(2 of 13) [CW-3299/2022 A/w connected writs]

to be part and parcel of the order instant, are decided by a

common order, however, the facts of SBCWP No.3299/2022: Anju

Bala vs. State of Rajasthan & Ors., are illustratively taken into

consideration.

These writ petitions have been filed by the petitioners

aggrieved against the orders passed by the respondents, whereby

the petitioners have been directed to report to the office of Chief

Medical and Health officer and subsequent thereto they have been

accorded postings at the places different from where they were

already working.

It is, inter-alia, indicated in the writ petition that the

petitioners, were posted at particular PHC/CHC or Sub-Centres,

when the order dated 18.02.2022 was passed by the Secretary,

inter-alia, indicating that for the purpose of providing good

governance and looking to the general public interest, nursing

staff working more than the posts sanctioned for the said place

and whose salary was being drawn from the place other than

where they were working, would report to the Chief Medical and

Health Officer and give their option to said CM & HO, who shall

post them appropriately.

The said order dated 18.02.2022 was endorsed by the Chief

Medical and Health Officer to the respective Drawing and

Disbursing authorities and the concerned employees and required

that surplus women health workers be relieved for the office of CM

& HO.

On 20.02.2022, the Chief Medical and Health Officer,

Ratangarh, District Churu, also required that where on account of

passing of interim orders by the Court more than one person is

working on the same post, their list may also be sent.

(3 of 13) [CW-3299/2022 A/w connected writs]

Thereafter, on 21.02.2022, the Block CM & HO required the

petitioners to report to the office of CM & HO and thereafter they

have been accorded posting by order dated 25.02.2022.

Learned counsel for the petitioners made submissions that

the action of the respondents in transferring the petitioners from

the place of their present posting by impugned orders are ex-facie

contrary to the provisions of Rule 8 of the Rajasthan Panchayati

Raj (Transferred Activities) Rules, 2011 ("Rules of 2011"),

inasmuch as the requisite consent, as required under the Rules,

has not been taken by the respondents before effecting the

transfer of the petitioners and therefore, the orders impugned are

bad in law.

Reliance has been placed on the order in Samleta vs. State

of Rajasthan & Ors. : S.B. Civil Writ Petition No.11862/2017

decided on 14.11.2017, upheld in State of Rajasthan & Ors. vs.

Samleta : D.B.S.A.W. No.736/2018 decided on 11.10.2018 and

Kiran Kumari vs. State of Rajasthan & Ors. : S.B. Civil Writ

Petition No.14964/2019 decided on 15.01.2020.

Learned counsel for the respondents made vehement

submissions that petitions deserve dismissal, inasmuch as from

the perusal of the documents which have been placed on record, it

is apparent that the respondents have taken the steps only with a

view to provide good governance and in public interest.

Submissions have been made that while at various places more

than one person are working against the same post, at other

places the posts are lying vacant and therefore, for the purpose of

rationalizing the availability of the nursing staff at all the PHC/CHC

and Sub Centres, the orders have been passed, which cannot be

faulted.

(4 of 13) [CW-3299/2022 A/w connected writs]

It was also submitted that in fact the petitioners have not

been transferred, they have simply been relocated on account of

the fact that they were surplus at given place and therefore, in

absence of any order of transfer, the Rule 8 of the Rules of 2011

has no application.

Submissions have been made that vaccination drive of the

State is going to commence and for that, the manpower is

required at all the PHC/CHC and Sub Centres and in absence

whereof the drive would be affected and on that count, the orders

have been passed. Submissions were also made that the

provisions of Rule 8 of the Rules of 2011, essentially is creating

hindrances in the working of the Medical and Health Department,

wherein though the respondent is the administrative/parent

department, for every movement of the employees, the consent of

the Panchayati Raj Department and/or order from authority

indicated under Rule 8, is required to be taken, which is also not

forthcoming; and therefore, on that count the entire working of

the Department is getting held up and thus this Court should not

interfere in the orders impugned.

Further submissions have been made that various orders

have been passed in public interest litigation being in Sanyam

Lodha vs. State of Rajasthan & Ors. : D.B. Civil Writ (PIL) Petition

No.2297/2016, Suo Moto vs. State of Rajasthan & Ors. : D.B. Civil

Writ Petition No.11294/2017 and Ramniwas Daga & Anr. vs. State

of Rajasthan & Ors. : D.B. Civil Writ (PIL) Petition No.7535/2021,

decided on 18.11.2021, wherein directions have been given and

for the compliance of the said orders also, the present exercise is

necessary.

(5 of 13) [CW-3299/2022 A/w connected writs]

I have considered the submissions made by the counsel for

the parties and have perused the material available on record.

It is not disputed that the petitioners are transferred

employee. The provisions of Rules of 2011 are very specific,

wherein, a transferred employee can be transferred by the

authorities indicated in the Rule and for transfer from one district

to another, consent of the Panchayati Raj Department is

necessary. The relevant Rule 8 of the Rules of 2011 reads as infra:

"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."

The Rule in question has been dealt with more than once by

this Court, wherein in the case of Samleta (supra), a Coordinate

Bench inter alia directed as infra:

"2. As per sub-rule (iii) whilst the department concerned i.e. the Medical and Health Department would be entitled to transfer ANMs from one district to the other, but since the employees become employees of Panchayati Raj Institutions, this has to be with the consent of the Panchayati Raj Department.

3. Concededly no such consent was taken. I note that vide order dated 20.9.2017 it was directed that joining of duties by the petitioner pursuant to impugned transfer order dated 15.9.2017 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 Panchayti Raj Department is not warranted.

(6 of 13) [CW-3299/2022 A/w connected writs]

5. The petition is disposed of quashing the transfer order dated 15.9.2017 qua the petitioner."

When the said judgment was appealed before the Division

Bench, the Division Bench of this Court while dealing with the

submissions made including the fact that aspect of the surplus

employees would not be governed by the said provision, came to

the following conclusion:

"We have heard and considered the submissions advanced at the Bar and have gone through the impugned order as well as the material placed on record.

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.

Consequently, the stay application is also dismissed."

Further, a Coordinate Bench of this Court in Kiran Kumari

(supra), again after exhaustively dealing with various aspects of

provisions of Rule 8 came to a similar conclusion that order

without complying with the provisions of Rule 8 of the Rules of

2011 cannot be passed by the respondents. The determination

reads as infra:

"22. Argument of respondents that by virtue of order dated 16.06.2018 passed by the Chief Secretary, the Medical & Health Department has been authorized to transfer the employees of Panchayati Raj Department is

(7 of 13) [CW-3299/2022 A/w connected writs]

untenable. In considered opinion of this Court, any executive order cannot over-take or take place of substantive Rules.

23. In unqualified opinion of this Court, the Rules of 2011 framed by the State Government under Article 309 of the Constitution are paramount. Much relied expression in Rule 8 "... ... ... under the transfer policy and directions issued by the State Government ... ... ..." are only to supplement the Rule. State's attempt to give a complete go by to the Rules in the garb of such expression is unsustainable.

24. The State Government can frame policy or issue directions only on those aspects, in relation to which, the Rules are silent. Any executive order of the State Government, which is contrary to the express provision of the Rules cannot get sanction of the Court. Such orders will have to concede, on all aspects wherever they come in conflict with the statutory Rules.

25. The order of the State Government dated 16.06.2018, if read carefully reveals that all the stipulations contained in order dated 16.06.2018 are contrary to express provisions contained in Rule 8.

(i) Para (v) requires the consent of parent Department i.e. Medical & Health Department in cases of transfer under Rule 8(i) and 8(ii); the same clearly falls foul to Rule 8 (i) and 8 (ii);

(ii) (c) seeks to ratify such transfers affected, that too cannot be done - an act which is void ab-initio cannot be ratified and that too by the authority which has usurped the powers;

(iii) and direction given in (l) in relation to inter-district transfers.

26. The order dated 16.06.2018 at best be read or construed to be a prior rather tacit approval of the Panchayati Raj Department. But in the opinion of this Court, even that is impermissible and unsustainable because Rule 8(iii) postulates consent of Panchayati Raj Department; whereas part (l) of the order goes on to say that in case of inter-district transfers, parent Department will not be required to take consent of Panchayati Raj Department.

27. In considered opinion of this Court, stipulation given in part (l) of the order does violence with what is contained in para (iii) of Rule 8 and it is in direct conflict with Rule 8(iii) of the Rules of 2011.

28. The order dated 16.06.2018 issued by the Chief Secretary of the State does not go along with Rule 8 of the Rules of 2011 and thus, the same cannot be allowed to endure. Though there is no specific challenge to said order, but since it has been relied upon by the State as a shield to protect the order of transfers, the Government order dated 16.06.2018 is hereby quashed.

(8 of 13) [CW-3299/2022 A/w connected writs]

29. As a natural corollary, the impugned transfer orders (dated 29.09.2019) issued by the Additional Director (Administration), Medical & Health Department, Rajasthan Jaipur are also quashed; writ petitions are allowed.

30. It is informed that the petitioners involved in the present bunch of writ petitions are protected by way of interim order(s) passed by this Court, the interim order(s) passed in these writ petitions, consequent to petitions being allowed, are made absolute."

From the determination made in the case of Samleta (supra)

by the Single Judge and Division Bench and in the case of Kiran

Kumari (supra), it is more than apparent that all the aspects, as

sought to be raised by the respondents in the present petitions,

have been taken into consideration and the requirement to comply

with the provisions of Rule 8 of the Rules of 2011 has been held to

be mandatory.

The submissions made by the counsel for the respondents

essentially seeking to highlight the working difficulties on account

of requirement to comply with the provisions of Rule 8, cannot be

a reason enough, for this Court to either water down the

provisions and/or to hold that the requirement of Rule 8 are not

mandatory. It is for the State to take a comprehensive view of the

provision and/or, its working.

So far as submission regarding petitioners being relocated

only, being surplus, and therefore, the provision of Rule 8 would

have not application, has no substance as the Division Bench in

the case of Samleta (supra) has specifically come to the

conclusion that even in the cases of transfer of surplus employees,

consent has to be obtained from the Panchayati Raj Department.

The Division Bench of this Court in the case of State of

Rajasthan & Ors. vs. Mool Shanker : D.B.S.A.W. No.683/2021

decided on 14.01.2022 has, while holding that a particular

(9 of 13) [CW-3299/2022 A/w connected writs]

observation made in the case of Samleta by the Division Bench

regarding prohibition of ex-post facto sanction by the Panchayati

Raj Department as sub silentio, observed as infra:

".... 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."

A specific query was put to the learned counsel for the

respondents pointing out the opinion of the Division Bench in the

case of Mool Shanker (supra) regarding ex-post facto sanction,

however, apparently even the ex-post facto sanction is also not

forthcoming.

In view of overall fact situation, wherein the law laid down by

this Court in Samleta (supra) and Kiran Kumari (supra) already

govern the field and no other view apparently is possible going by

the provisions of the Rules. The State irrespective of a large

number of judgments have been passed in this regard, continues

to deal with the situation by itself passing the orders/not seeking

the consent of the Panchayati Raj Department, which also cannot

be countenanced.

Consequently, the writ petitions filed by the petitioners are

allowed. The orders impugned passed transferring the petitioners

(10 of 13) [CW-3299/2022 A/w connected writs]

in violation of provisions of Rule 8 of the Rules of 2011 are

quashed and set aside.

In cases, where the petitioners have joined pursuant to

orders of transfer, they would be permitted to join back at the

place from where they have been transferred and where the

petitioners have reported at the office of CM & HO, having been

relieved from the place where they were working, they would also

be permitted to join back at the place from where they were

relieved for joining to the office of CM & HO.

(ARUN BHANSALI),J 273 A/w connected petitions-DJ/-

(11 of 13) [CW-3299/2022 A/w connected writs]

Schedule

S.No. Item WRIT PETITION No(s). PARTY NAME No.

1. 64 SBCWP No.3605/2022 Murti Devi State & Ors.

2. 69 SBCWP No.3612/2022 Suman Kumari State & Ors.

3. 77 SBCWP No.3649/2022 Baljeet Kaur State & Ors.

4. 79 SBCWP No.3659/2022 Smt. Sunita Kumari State & Ors.

5. 83 SBCWP No.3678/2022 Sumitra State & Ors.

6. 84 SBCWP No.3680/2022 Saroj Bala State & Ors.

7. 80 SBCWP No.3666/2022 Sunita Devi State & Ors.

8. 240 SBCWP No.3210/2022 Poonam State & Ors.

9. 241 SBCWP No.3211/2022 Kaushalya State & Ors.

10. 242 SBCWP No.3214/2022 Suman Lata State & Ors.

11. 243 SBCWP No.3217/2022 Suman State & Ors.

12. 244 SBCWP No.3222/2022 Rajbala State & Ors.

13. 245 SBCWP No.3224/2022 Nisha Choudhary State & Ors.

14. 246 SBCWP No.3230/2022 Batul Bano State & Ors.

15. 247 SBCWP No.3231/2022 Vinod Kumari State & Ors.

16. 248 SBCWP No.3232/2022 Kavita State & Ors.

17. 249 SBCWP No.3239/2022 Kavita State & Ors.

18. 250 SBCWP No.3242/2022 Nirmala Devi State & Ors.

19. 251 SBCWP No.3243/2022 Kamlesh Kumari State & Ors.

20. 252 SBCWP No.3245/2022 Suman State & Ors.

21. 253 SBCWP No.3246/2022 Shakuntala State & Ors.

22. 254 SBCWP No.3248/2022 Banta Devi State & Ors.

23. 255 SBCWP No.3249/2022 Urmila State & Ors.

24. 256 SBCWP No.3251/2022 Pushpa Kumari State & Ors.

25. 257 SBCWP No.3252/2022 Shakuntala Ku. Kaswa State & Ors.

26. 258 SBCWP No.3254/2022 Sharmila State & Ors.

27. 259 SBCWP No.3260/2022 Kamlesh Kumari State & Ors.

28. 260 SBCWP No.3268/2022 Sarita State & Ors.

29. 262 SBCWP No.3274/2022 Santosh State & Ors.

30. 263 SBCWP No.3275/2022 Sulochana State & Ors.

31. 264 SBCWP No.3277/2022 Manju Kumari State & Ors.

32. 265 SBCWP No.3278/2022 Sarita Devi State & Ors.

33. 266 SBCWP No.3280/2022 Saroj Bala State & Ors.

34. 267 SBCWP No.3281/2022 Nirmala Devi State & Ors.

35. 268 SBCWP No.3282/2022 Nirmala Kumari State & Ors.

36. 269 SBCWP No.3283/2022 Neetu State & Ors.

37. 270 SBCWP No.3284/2022 Sunita State & Ors.

38. 271 SBCWP No.3297/2022 Sahnila State & Ors.

39. 272 SBCWP No.3298/2022 Meenakshi State & Ors.

40. 274 SBCWP No.3300/2022 Sushila Devi State & Ors.

41. 275 SBCWP No.3303/2022 Santosh Thori State & Ors.

42. 276 SBCWP No.3307/2022 Rampyari State & Ors.

43. 277 SBCWP No.3311/2022 Ankori State & Ors.

44. 278 SBCWP No.3313/2022 Rekha Kumari State & Ors.

(12 of 13) [CW-3299/2022 A/w connected writs]

45. 279 SBCWP No.3315/2022 Manju Rani State & Ors.

46. 280 SBCWP No.3318/2022 Vimla Meghwal State & Ors.

47. 281 SBCWP No.3319/2022 Sunita Devi State & Ors.

48. 282 SBCWP No.3322/2022 Pinku State & Ors.

49. 283 SBCWP No.3324/2022 Rakesh Kumari State & Ors.

50. 284 SBCWP No.3325/2022 Manisha Kumari State & Ors.

51. 285 SBCWP No.3327/2022 Ranjana State & Ors.

52. 286 SBCWP No.3328/2022 Suman Dhaka State & Ors.

53. 287 SBCWP No.3329/2022 Munesh Kumari State & Ors.

54. 288 SBCWP No.3330/2022 Sunita State & Ors.

55. 289 SBCWP No.3332/2022 Nirmala Devi State & Ors.

56. 290 SBCWP No.3334/2022 Savita State & Ors.

57. 291 SBCWP No.3336/2022 Reshma State & Ors.

58. 292 SBCWP No.3337/2022 Sunita State & Ors.

59. 293 SBCWP No.3341/2022 Sushila Devi State & Ors.

60. 294 SBCWP No.3345/2022 Gulab Devi State & Ors.

61. 295 SBCWP No.3348/2022 Bhagwanti Dangi State & Ors.

62. 296 SBCWP No.3362/2022 Smt. Monika State & Ors.

63. 297 SBCWP No.3366/2022 Kavita Kumari State & Ors.

64. 298 SBCWP No.3371/2022 Kamla Devi State & Ors.

65. 299 SBCWP No.3380/2022 Manju Nain State & Ors.

66. 300 SBCWP No.3395/2022 Alpna State & Ors.

67. 301 SBCWP No.3397/2022 Nirmala State & Ors.

68. 302 SBCWP No.3410/2022 Sunita State & Ors.

69. 303 SBCWP No.3423/2022 Tara State & Ors.

70. 304 SBCWP No.3426/2022 Saroj State & Ors.

71. 305 SBCWP No.3428/2022 Sushila State & Ors.

72. 306 SBCWP No.3429/2022 Gurpreet Kaur State & Ors.

73. 307 SBCWP No.3430/2022 Suman State & Ors.

74. 308 SBCWP No.3433/2022 Sharmila State & Ors.

75. 309 SBCWP No.3443/2022 Vimla Devi State & Ors.

76. 310 SBCWP No.3449/2022 Suman State & Ors.

77. 311 SBCWP No.3453/2022 Sarla State & Ors.

78. 312 SBCWP No.3454/2022 Prem Kumari State & Ors.

79. 313 SBCWP No.3465/2022 Rajbala State & Ors.

80. 314 SBCWP No.3488/2022 Sunita Kumari State & Ors.

81. 315 SBCWP No.3500/2022 Rajesh Kumari State & Ors.

82. 316 SBCWP No.3508/2022 Suman Kumari State & Ors.

83. 317 SBCWP No.3509/2022 Sharda State & Ors.

84. 318 SBCWP No.3513/2022 Sangeeta State & Ors.

85. 319 SBCWP No.3519/2022 Kani State & Ors.

86. 321 SBCWP No.3526/2022 Laxmi Meena State & Ors.

87. 322 SBCWP No.3532/2022 Sangeeta Meena State & Ors.

88. 324 SBCWP No.3545/2022 Smt. Urmila State & Ors.

89. 326 SBCWP No.3556/2022 Suman State & Ors.

90. 327 SBCWP No.3560/2022 Smt. Vijayanta State & Ors.

91. 329 SBCWP No.3573/2022 Smt. Suman Kumari State & Ors.

92. 330 SBCWP No.3575/2022 Smt. Kamla State & Ors.

93. 331 SBCWP No.3576/2022 Smt. Darshana State & Ors.

(13 of 13) [CW-3299/2022 A/w connected writs]

94. 332 SBCWP No.3578/2022 Smt. Rajbala State & Ors.

95. 333 SBCWP No.3580/2022 Smt. Priyanka Kumari State & Ors.

96. 338 SBCWP No.3677/2022 Ompati State & Ors.

97. 340 SBCWP No.3685/2022 Smt. Shakuntala State & Ors.

Dhaka

98. 342 SBCWP No.3690/2022 Sushila State & Ors.

99. 343 SBCWP No.3691/2022 Santosh State & Ors.

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