Rajasthan High Court - Jodhpur
Dr. Tejpal Singh vs State Of Rajasthan (2025:Rj-Jd:5072) on 27 January, 2025
[2025:RJ-JD:5072]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1646/2025
Dr. Tejpal Singh S/o Shri Bharmal Ram, Aged About 40 Years,
Resident Of Village Hali Bao, Tehsil Chitalwana, District Jalore
(Raj.). Presently Holding The Post Of Bcmo, Barmer.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Principal Secretary, Rural
Development And Panchayati Raj Department,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Principal Secretary, Medical And Health Services,
Government Secretariat, Jaipur.
3. Joint Secretary To The Government, Department Of
Medical And Health (Gr.-2), Government Of Rajasthan,
Secretariat, Jaipur.
4. The Zila Parishad, Through Its Chief Executive Officer,
Barmer.
5. Director (Public Health), Medical And Health Services,
Health Bhawan, Jaipur.
6. Joint Director, Medical And Health Services, Zone Jodhpur,
Jodhpur.
7. The Chief Medical And Health Officer, Barmer.
----Respondents
For Petitioner(s) : Mr. Yashpal Khileree.
For Respondent(s) : Mr. Mukesh Dave, AGC.
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
27/01/2025
1. Petitioner herein seeks quashing of an order dated
15.01.2025 (Annex.-7) passed by respondent No.3, vide which he
has been transferred from Block Chief Medical Officer, Barmer to
Community Health Centre, Barmer.
[2025:RJ-JD:5072] (2 of 5) [CW-1646/2025]
2. The petitioner challenges this transfer, stating that it was
issued without jurisdiction under the Rajasthan Panchayati Raj
(Transferred Activities) Rules, 2011. These rules apply to
employees transferred from the State Government to perform
tasks assigned to Panchayati Raj institutions. According to Rule 8
(ii) of the 2011 Rules, intra-district transfers can only be made by
the District Establishment Committee of the concerned Zila
Parishad. Hence, this petition.
3. In the aforesaid backdrop, I have heard the rival contentions
and perused the case file.
4. In fact, this very Bench, on an earlier occasion, had rendered
a judgment enunciating the entire evolution of law from time to
time in a case titled Kera Ram Vs. State of Rajasthan & Ors.: S.B.
Civil Writ Petition No.2909/2024. Relevant extract, being apposite,
is reproduced herein below:-
"22. I am compelled to reiterate for the education of the
respondents that had they followed the precedents contained in
Mool Shanker & Chandra Kanta (supra), needless litigation
could have been avoided for which State alone is responsible. As
far as Ram Singh's judgment, in my view reliance thereupon by
the petitioners is misplaced. Perusal of Ram Singh judgment
leaves no manner of doubt that as far as Panchayat Samiti is
concerned, any transfer within the same Samiti could not be
carried out by the State Government prior to the amendment.
However, subsequent to the judgment, an amendment was
carried out sometime in year 2015 to overcome the difficulty.
Said amendment is not under challenge. In view of the later
amendment, the said judgment is not applicable to that extent.
Transfers which have been ordered by the State Government
within the same Samiti do not suffer from the vice of lack of
administrative jurisdiction. However, having said that, there are
other issues involved, which require attention of this Court and
adjudication thereof, which have been discussed hereinafter.
23. Let us first have a look at Division Bench judgment rendered
in Mool Shanker (supra) which is post amendment of 89(8-A),
relevant thereof is as below:-
"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 73rd Amendment Act, 1992
with effect from 24.04.1993. This chapter contains
[2025:RJ-JD:5072] (3 of 5) [CW-1646/2025]
detailed provisions for constitution and composition
of Panchayats through which the Panchayati Raj
institutions have 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.
xxxx xxxx
xxxx
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 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.
xxxx xxxx xxxx
23.1. The judgment underscores the process of decentralization,
wherein state government has delegated specific functions and
activities to the Panchayats as per the Rules. This transfer of
functions is crucial for enabling Panchayats to perform their
roles effectively. To facilitate this, certain State Government staff
have been placed at the disposal of the Panchayats. This move
aims to bolster the administrative capacity of Panchayati Raj
institutions, ensuring that they have the necessary human
resources to execute their duties.
However, this decentralized framework also necessitates a
clear delineation of authority and responsibility, especially
concerning the transfer of personnel. The statutorily prescribed
involvement of the District Establishment Committee of the Zila
Parishad in the transfer process is a testament to the
decentralized nature of this governance model.
23.2. A critical aspect underlying the text is the limitation on the
State Government's power to issue transfer orders for staff. It is
that the government's overarching authority in issuing specific
transfer orders must not undermine the autonomy of the
Panchayati Raj institutions. The District Establishment
Committee of the Zila Parishad is vested with the authority to
manage such transfers, ensuring that the local governance
body's functional integrity is maintained.
23.3. The ratio of the judgment reinforces the principle that
while the State Government can provide policy directions and
ensure adherence to broader governance policies, it cannot
exercise sweeping powers that disregard the established
mechanisms within Panchayati Raj institutions. This balance is
[2025:RJ-JD:5072] (4 of 5) [CW-1646/2025]
essential to preserve the autonomy and constitutional sanctity of
these local bodies.
xxxxxxxxxxxxxxx
25. As already noted hereinabove, not only Chandra Kanta
(supra) but even the subsequent judgment rendered in Mool
Shanker (supra) by the Division Bench have attained finality. In
view of the same, petitions deserve to be allowed as the
impugned orders are completely misconceived to say the least.
Petitioners have been compelled to seek indulgence of this Court
on a matter, which was otherwise completely an open and shut
issue."
5. Facts of the present case, which are duly supported by the
affidavit, read with the official record appended by the petitioner
(which is not disputed), clearly reveal that order has not been
passed by the District Establishment Committee of the Zila
Parishad, but by the Joint Secretary of the State, who lacks the
administrative competence in passing such an order.
6. I am unable to convince myself with the arguments
canvassed in support of the impugned order that in view of the
urgency of transferring the panchayat officials due to a lifting of a
ban on transfers for a limited period of two weeks, the needful
compliance of Rule 8(ii) read with the Division Bench judgment in
Mool Shankar ibid, could not be carried out. Such an argument, if
accepted, would result in accepting as if the State Government
officials (in the present case, the Joint Secretary of the
department) have the privilege of enjoying an immunity from
applicability of the relevant provisions of law. Same would thus be
fraught with the dangerous consequences of empowering them to
indulge in arbitrariness non-compliance of Rule of law with
impunity. Lifting of ban of transfers, as imposed by the
administrative circular issued by the Chief Secretary, cannot thus
be a licence to commit violations.
[2025:RJ-JD:5072] (5 of 5) [CW-1646/2025]
7. Furthermore, to argue that since the requisite consent under
Rule 8(iii) has been obtained, therefore, the provision contained in
Rule 8(ii), which proceeds 8(iii), can be given a go bye, is also not
tenable. Both the provisions have to be read harmoniously, not
only consent, but the transfer order has to be passed by the
competent authority.
8. In the present case, concededly the order has been passed
by the Joint Secretary, who is not competent, as already noted
herein-above, therefore, the prior consent becomes insignificant.
9. As an upshot, the instant petition is allowed. The impugned
order dated 15.01.2025 (Annex.7) is quashed and set-aside with
liberty to pass fresh orders.
10. Pending application(s), if any, stands disposed of.
(ARUN MONGA),J
38-DhananjayS/Rmathur-
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