Rajasthan High Court - Jodhpur
Jagdish Prasad Hudda vs The State Of Rajasthan ... on 23 January, 2025
[2025:RJ-JD:4503]
HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR
S.B. Civil Writ Petition No. 1212/2025
Ram Chander
----Petitioner
Versus
The State Of Rajasthan
----Respondent
Connected With
S.B. Civil Writ Petition Nos. 1267/2025, 1285/2025, 1287/2025,
1454/2025, 1383/2025, 1406/2025, 1407/2025, 1608/2025 &
1623/2025.
For Petitioner(s) : Mr. J.S. Bhaleria, Mr. Deepak Pareek,
Mr. K. R. Saharan, Mr. Mukesh
Rajpurohit, Mr. Ramesh Kumar,
Mr.Devendra Sahlot, Mr. A.R. Godara,
Mr. Parmendra Bohra
For Respondent(s) : Mr. I.R. Choudhary, AAG through VC
Mr. Pawan Bharti
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
23/01/2025
1. This court is yet again being swamped each day with writ
petitions by transferees of Panchayat department, alleging that
the mass transfers carried out, are in violation of the letter & spirit
and the intent of Section 89(8-A) of the Rajasthan Panchayati Raj
Act, 1994 coupled with the fact that the transfer guidelines framed
by this Court in Kera Ram Vs. The State of Rajasthan & Ors. : S.B.
Civil Writ Petition No. 2909/2024, decided on 30.04.2024 have
been flagrantly violated, compelling them to approach this Court
to seek issuance of a writ in the nature of certiorari to quash the
respective transfer orders.
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2. Facts of the individual cases need not be gone into, as what
is under challenge herein simpliciter is the manner, procedure,
legality and administrative propriety of the transfers/postings.
Assertion is that not only it is mechanical exercise of mind, but
also colorable exercise of powers taking advantage of the non
obstante clause contained in the Section ibid.
3. In fact, instead of adjudicating the controversy all over
again, suffice it would be to reproduce the relevant extract of the
judgment rendered in Kera Ram ibid, as below:-
"13. The following questions of law are being formulated, which
need to be addressed to adjudicate on the merits of impugned orders:-
1.to 5. xxx xxx xxx
6. What is the legislative intent and scope of the
State's power under the non-obstante clause in
Section 89(8)(A) of the Panchayat Raj Act, 1994,
as amended by Act No. 23/1994 in Rajasthan?
14. to 16 xxx xxx xxx
17. While the State Government has, no doubt, all pervasive powers
under the Act, it should refrain from completely taking over the self-
governance powers vested in the Panchayats. It is a situation
somewhat akin to Article 254 of the Constitution, which envisages that
in the event of inconsistency between Parliament and Legislature of
State, laws made by Parliament shall prevail on the matters of
concurrent list. Likewise, power of transfer of panchayati raj officials
herein is concurrently vested with democratically elected panchayati
institutions, as well as, State government. It is thus desirable that in
keeping with the real intent and spirit of the law, the State Government
should only invoke its inherent powers sparingly when there is a
conflict with Panchayati Raj elected bodies and avoid exercising these
powers in routine Panchayat affairs.
18.to 19 xxx xxx xxx
20. Ultimately, the imperatives of procedural rigor and legal
compliance thereof serve as bulwarks against the capricious exercise
of transfer authority, ensuring equity and transparency in
administrative actions.
In essence, the delicate balance between autonomy,
accountability, and effective governance must be maintained, ensuring
that decisions are made with due consideration for both procedural
norms and administrative exigencies.
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21 to 25 xxx xxx xxx
26. Adverting once again to the core issue i.e. the legal intricacies
surrounding the constitutional status and functional autonomy of
Panchayati Raj institutions in India, established under Part IX of the
Indian Constitution through the 73rd Amendment Act, 1992. The
involvement of local committees, such as the District Establishment
Committee, in transfer decisions examplifies the commitment to
decentralized governance and the protection of constitutional
principles. Interference of the State Government, where necessary, is
no doubt legally permissible as all pervasive powers have been given
to it under the Act but at the same time it should not amount to
completely taking over the powers of self governance vested with the
Panchayats to make the latter as completely redundant.
27. Trite law it is that the non obstante clause essentially connotes
that it shall have over riding effect and shall take precedence over any
other clause and shall prevail in the event of any conflicting provision.
However, here is a case where in the absence of any conflict, powers
have been invoked in routine and massive transfer drive has been
carried out by transferring as many as more than 885 Panchayat
Officials without even first letting the elected Panchayati bodies to
carry out the said exercise. The intent of non obstante clause to ensure
clarity and consistency in the application of law seems to have been
thus misused by colorable exercise of powers.
28. xxx xxx xxx
29. There is another crucial aspect to consider i.e. the State
Government had imposed an absolute ban on transfers throughout the
State of Rajasthan. However, the administration temporarily lifted this
ban first for 10 days followed by another 2 days, perhaps with an
intended view, as it does not seem to be a mere coincidence, to
completely strip the Panchayati Raj Institutions of their
constitutionally and statutorily mandated powers. The mode, manner
and timing of State administration to invoke its broad powers under
Section 89 sub-section 8A of the Act raises serious suspicions and
appears to be a colorable exercise of power to carry out the massive
transfer drive of the Panchayati Raj officials.
FINDINGS:
30. In the light of discussion and analysis contained in preceding
paragraphs let us now revert to address the questions framed in para
13, ibid:-
ANSWERS:-
1.to 5 xxx xxx xxx
6. The last question concerns the legislative intent
behind Section 89(8)(a) of the Panchayati Raj
Act, 1994. This section emphasizes
decentralization, delegating specific functions to
Panchayats for managing human resources. The
rules ensure effective implementation of this
legislative intent. While the State Government
holds overriding authority for issuing transfer
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orders, this power should not undermine the
autonomy of Panchayati Raj Institutions..
Striking a balance is essential to maintain the
local bodies' autonomy and constitutional
integrity. Thus, while the State has absolute
power to issue transfer orders, this power should
not be exercised in a manner that undermines the
faith in democratically elected Panchayati Raj
Representatives.
CONCLUSION:-
31. While concluding, in order to avoid needless litigation in future,
this Court deems it appropriate to frame/issue following guidelines in
matters of transfer of Panchayati Raj officials of the rank of Village
Development Officers/Assistant Administrative Officer/Gram
Sewak/LDC/Junior Assistants/Junior Technical Assistant/Gram Vikas
Adhikari :-
Transfer Guidelines
(I). **District-Level Transfers:** Panchayat officials
recruited for district-cadre posts cannot and ought not
to be transferred in routine outside their respective
districts, except wherever permissible under the Act and
the Rules framed there under .
(II). **Consultation for Transfers:** Transfers must be
made only after consulting the Pradhan of the
Panchayat Samiti.
(III). **Zilla Parishad Transfers:** Transfers within a Zilla
Parishad require consultation with the Pramukh of the
Zilla Parishad.
(IV). **State Overriding Power:** The State can make
transfers without consulting the Pradhan or the
Pramukh.
(V). **Intra-District Transfers:** The State has the
authority to transfer Panchayat officials within or
between Panchayat Samitis within the same district.
(VI). **Inter-District and Intra-Zilla Parishad Transfers:**
The State can transfer officials from one Zilla Parishad
to another, from a Panchayat Samiti to a Zilla Parishad,
or within the same Zilla Parishad or Panchayat Samiti,
with or without consultation of Pradhan or Pramukh.
(VII). Section 89(8)(ii) of the Act, 1994 mandates that a Zilla
Parishad can transfer an employee from a Panchayat
Samiti only after consulting the Pradhans or Pramukhs
of the respective Panchayat Samitis or Zilla Parishads
involved in the transfer.
(VIII). Scheme of Rules, 1996 envisage that the Zilla Parishad
is the controlling authority for employees appointed in
Panchayat Samitis. Transfers within a Zilla Parishad
from one Panchayat Samiti to another must comply with
Section 89(8)(ii), ensuring consultation with the
respective Pradhans or Pramukhs.
(IX). Under Section 89(8A) of the Act, 1994, Consultation is
not required for transfers made under this section. It
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gives the State Government the power to stay or cancel
transfer orders made under Section 89(8) or the
associated rules.
(X). In Compliance with State Orders, The Chief Executive
Officer/Vikas Adhikari are empowered must to execute
transfer orders passed by the State Government, as
interpreted by a harmonious reading of Rule 289(3)
with Sub-section 89(8A). They do not have any
independent power to pass transfer orders.
(XI). The Government must respect the role of the District
Establishment Committee of the Zilla Parishad in
issuing transfer orders/policies. The Committee is
empowered to exercise transfer powers in accordance
with Government policies and directions, ensuring that
the Panchayati Raj institutions' constitutional status is
upheld.
(XII).Inter-district transfer orders by other Departments must
obtain consent from the Panchayati Raj department.
'Consent' implies a voluntary, informed decision, and
must be explicitly stated through a conscious decision-
making process, not assumed through tacit or non-
resistant behavior.
32. The respondent no.1 is directed to issue necessary administrative
instructions to the officials of the concerned Panchayati Raj officials to
sensitize them about the aforesaid guidelines framed by this Court along
with copy of the instant judgment. Needless to say, their non compliance
would expose the respondents to the necessary consequences arising
thereof."
4. Notwithstanding the aforesaid unambiguous enunciation
rendered by this Court, a massive transfer drive, yet again in the
similar manner, as also noted in the judgment, ibid, has been
carried out of more than 1000 Panchayat officials. The
administrative power by the state authority has been exercised
invoking the non obstante clause, by transgressing into the
democratic domain of the elected Panchayat bodies.
5. In fact, it so transpires that the censure issued by this Court
in para 32 of the judgment ibid seems to have been taken very
lightly, coupled with the reluctance of the petitioners to issue any
pre contempt legal notices as a precursor to institute contempt
proceedings, being fearful that any such action on their part will
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further antagonize the mighty State officials resulting in
unforeseen further adverse actions qua them.
6. Be that as it may, even this Court would refrain to adopt an
obstructive approach in the administrative exigencies, which
warrant transfers of the Panchayat officials by state officials,
provided, a case qua the same is made out. However, it so
appears that the sheer number (stated to be more than 1,000) of
the Panchayat officials transferred by the State officials without
even giving the opportunity to the elected Panchayat bodies to
exercise their own powers under the relevant Statute read with
Rules framed there under, is merely reflective of their adamancy
to not let go of their administrative superiority by asserting their
dominant position, instead of decentralizing the power, which was
the very genesis of constitutional amendment carried out by the
Parliament of the Country resulting in enactment of Panchayati Raj
Act.
7. With these observations, the writ petitions are being
disposed of with a direction to the Secretary, Department of Rural
Development and Panchayati Raj that he shall either himself take
the remedial measures and/or direct the competent authorities to
take a fresh look at all the transfers, by taking a wholesome view
of the matter.
8. If after reconsideration of the matters, the competent
authorities are still of the opinion that they need to exercise their
powers as provided under Section 89 of the Act of 1994, those
cases will be segregated by giving specific reasons thereof. For
rest of the matters, fresh orders may then be passed by the
respective Panchayat bodies in accordance with law, if so
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warranted, depending upon the administrative exigencies within a
period of thirty days.
9. Till a decision as aforesaid is taken, the impugned transfer
orders in all these petitions shall be put on hold for a period of
thirty days.
10. At this stage, Mr. I.R. Choudhary, learned Additional
Advocate General submits that passing of the fresh orders
requires prior sanction from the competent authority in view of
the ban imposed by the Chief Secretary vide an administrative
order dated 03.01.2024. In view thereof, in order to obviate any
procedural hurdle, it is made clear that since the transfer orders
have been put on hold by mandamus of this Court, thus taking
fresh administrative decision qua the petitioners shall be
construed to be in continuation of the earlier transfer orders. No
prior sanction would thus be required in terms of the circular
dated 03.01.2024 issued by the Chief Secretary.
11. Pending application(s), if any, stand(s) disposed of.
(ARUN MONGA),J
182, 184 to187, 34, 44, 45,
70, 75 -AK Chouhan/-
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