Rajasthan High Court - Jodhpur

Priya Prajapati vs State Of Rajasthan (2023:Rj-Jd:41512) on 1 December, 2023

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:41512]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 11723/2022

Priya Prajapati W/o Shri Prashant Prajapat, Aged About 31 Years,
R/o Near Vidhya Niketan School, Post Bichhiwara, District
Dungarpur, Rajasthan.
                                                                         ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through The Secretary, Department
         Of Medical And Health Services, Secretariat, Jaipur,
         Rajasthan.
2.       The     Principal        Secretary,          Department           Of     Rural
         Development And Panchayati Raj, Jaipur, Rajasthan.
3.       The    Director      (Non       Gazetted),         Medical      And    Health
         Services, Directorate, Medical, Health And Family Welfare
         Services, Jaipur, Rajasthan.
4.       The Chief Medical And Health Officer, District Dungarpur,
         Rajasthan.
5.       The Medical Officer, Sub Centre, Balwara, Bichhiwara,
         District Dungarpur.
6.       The    Chief     Executive        Officer,      Zila       Parishad,   District
         Dungarpur, Rajasthan.
7.       Smt. Sangeeta Kumari, Female Health Worker (A.n.m.),
         Sub Centre, Bhojpur, Dhariyawad, District Pratapgarh,
         Rajasthan.
                                                                      ----Respondents


For Petitioner(s)            :     Mr. Keshav Bhati
For Respondent(s)            :     Ms. Khushi Makwana for
                                   Ms. Vandana Bhansali, AGC



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                        Order

01/12/2023

1.    Learned counsel for the parties jointly submit that the

controversy involved in the present matter is squarely covered by



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the judgment passed by this Court in Kiran Kumari Vs. State of

Rajasthan & Ors. (S.B. Civil Writ Petition No.14964/2019),

decided on 15.01.2020; the operative portion of the judgment

reads as under :-
    "14. Heard.
    15. A bare reading of Rule 8 of the Rules of 2011 leaves no
    room for ambiguity that transfer of the employees, whose
    services have been transferred to Panchayati Raj institution
    can be made by an authority who is authorized to transfer
    such employee, as has been clearly defined rather prescribed
    in the Rule 8 itself, viz. (i) in case of transfer within Panchayat
    Samiti - Administration and Establishment Committee of
    Panchayat Samiti, (ii) in case of transfer from one Panchayat
    Samiti to another Panchayat Samiti within the same District -
    District Establishment Committee of the Zila Parishad and (iii)
    in case of transfer from one District to another or inter district
    transfer - department concerned with consent of Panchayati
    Raj Department.
    16. This Court is unable to accept the argument advanced by
    learned counsel for the respondents that by virtue of order
    dated 16.06.2018, the State Government has given an in-
    principle consent for transfer and has permitted transfers by
    the Medical & Health Department in case of intra Panchayat
    Samiti and inter Panchayat Samiti also.
    17. Rules of 2011 have been framed under Article 309 of the
    Constitution and they have statutory force. Any order or
    circular, may it be passed by the Chief Secretary, cannot alter,
    obliterate or override the provisions contained in the Rules.
    This Court hardly finds any substance in the arguments of
    learned Additional Advocate General that since the State
    legislature or rule making authority cannot amend the Rules
    every of and on, as and when required, executive order
    passed by the State Government can do the same and such
    administrative order can be issued in public interest and to
    meet the exigencies.
    18. All the judgments cited by learned counsel for the
    petitioners right from the judgment dated 14.11.2017 in case
    of Samleta (supra) till the judgment dated 28.05.2019 in case
    of Harish Chandra Katara (supra), have consistently held that
    Rule 8 of the Rules of 2011 is sacrosanct and the State
    Government cannot transfer its staff/employee dehors the
    provisions contained in Rule 8 of the Rules of 2011. Relevant
    portions of the judgments aforesaid are being reproduced
    hereunder :
        (i) (Samleta Vs. State of Rajasthan & Ors.) :
        "3. concededly no such consent was taken. I note that
        vide order dated 20.09.2017 it was directed that joining
        of duties by the petitioner pursuant to impugned
        transfer order dated 15.09.2017 at the place where she


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        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 Panchayati Department
        is not warranted."
        (ii) (State of Raj. & Ors. Vs. Samleta) :
        "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."
        (iii) (Smt. Bimla Devi Vs. State of Raj. & Ors.) :
        "Sh. S.K. Gupta Additional Advocate General appearing
        for the respondents submits that in each & every matter
        consent as required under Rule 8 of the Rules, 2011 is
        not necessary and submits that a circular dated
        16.06.2018 was issued in this regard by the Panchayati
        Raj Department.
        After hearing counsel for the parties, the contention
        advanced by the counsel for the petitioners holds
        substance for the reasons; firstly according to Rule 8 of
        the Rules, 2011 the consent is necessary to be obtained
        as required from the Panchayati Raj. Department;
        secondly a bare perusal of the order/circular dated
        16.6.2018 clearly shows that it holds that for transfer of
        an employee the consent of the Panchayati Raj
        Department is not necessary which is violative of Rule 8
        of the Rules, 2011.
        In that view of the matter, the writ petitions filed by the
        petitioners deserve acceptance and the transfer orders
        impugned herein deserve to be set aside.
        Accordingly, the writ petitions are allowed and the
        respective transfer orders impugned in the present
        petitions are set aside. However, the respondent-State is
        at liberty to pass order of transfer afresh, if exigency of
        service so require, only after strict compliance of Rule 8
        of the Rules, 2011. Copy of the order be separately
        placed in each file."



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        (iv) (Harish Chandra Katara Vs. State of Raj. &
        Ors.) :
        "Learned counsel appearing for the respondent
        department placed reliance on the order dated
        16.06.2018 (Annex.9 in SBCWP No.7212/2019),
        purportedly directing under Rule 8 and ordering that the
        required consent of the Panchayati Raj Department
        would not be required and therefore, the plea raised by
        the petitioners in this regard has no substance.
          Learned counsel for the petitioners in SBCWP
        No.7212/2019 submits that the circular dated
        16.06.2018 relied on by the respondents being contrary
        to the express provisions of Rule 8, the transfer orders
        without requisite consent under Rule 8 has been set
        aside in Smt. Bimla Devi v. State of Rajasthan & Ors. ;
        SB Civil Writ Petition No.16963/2018, decided on
        12.11.2018 at Jaipur Bench.
        .........

.........

In view of the express provision of Rule 8 as well as the judgment in the case of Bimla Devi (supra), wherein the circular sought to be relied on by the respondents has been taken into consideration, the action of the respondents in effecting transfers of the petitioners in SBCWP Nos.4214/2019 and 7212/2019 cannot be sustained. The order dated 08.03.2019 (Annex.2 in SBCWP No.4214/2019) and order dated 08.03.2019 (Annex.8 in SBCWP No.7212/2019), qua the petitioners are quashed and set aside."

19. State's endeavour to justify, rather defend impugned order(s) by submitting that these transfers have been made in public interest and that too by the Medical & Health Department, which is the best suited to ascertain the suitability of an employee considering the ground realities, also does not cut any ice.

20. It is settled preposition of law that if a statute or rule provides something to be done in a particular manner, such act is required to be done only as mandated by such rule. In the present case, Rule 8 is not only the fountain head of power to transfer but also a dividing line or road-map setting out clearly the authority and manner in which the transfers are to be effected.

21. This Court has no hesitation in holding that transfer of petitioners governed by the Rules of 2011 can be done only by the authorities/committees mentioned in clause (i), (ii) and

(iii) of Rule 8 of the Rules of 2011. No authority or officer, howsoever high he may be placed in the bureaucratic hierarchy, can transfer an employee governed by the Rules of 2011, in violation of Rule 8.

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

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employees of Panchayati Raj Department is 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.

29. As a natural corollary, the impugned transfer orders (dated 29.09.2019) issued by the Additional Director

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(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.

31. At the request of learned Additional Advocate General, the orders of transfer dated 29.09.2019 shall be treated to have been cancelled only qua these petitioners or who are protected by interim orders already passed. Whosoever has/have joined pursuant to the transfer order dated 29.09.2019, at the new place of positing, shall not be entitled for relief and they shall not be disturbed.

32. Needless to observe that if State in administrative exigencies wishes to transfer these petitioners, the same be done, needless to say, strictly in accordance with Rule 8 of the Rules of 2011.

33. Registry is directed to keep photostat copy of this order in each file, mentioned in the Schedule.

34. All interlocutory applications, including stay petitions stand disposed of."

2. In light of the aforequoted order, the present writ petition is

also disposed of in the same terms. Thus, the impugned order

dated 03.08.2022 (Annex.1) is quashed and set aside qua the

petitioner for whom the interim order was passed. It is made clear

that if any person has already joined in pursuance of the transfer

order in question, at the new place of posting, he shall not be

entitled for any relief and shall not be disturbed. Needless to

observe that if State in administrative exigencies wishes to

transfer the petitioner, the same be done, needless to say, strictly

in accordance with Rule 8 of the Rules of 2011.