Rajasthan High Court - Jodhpur
Dev Pal Singh Khinchi vs State Of Raj. & Ors on 26 August, 2010
Author: Vineet Kothari
Bench: Vineet Kothari
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF
ORDER DTD.26.8.2010
1/29
IN THE HIGH COURT OF JUDICATURE FOR RAJSTHAN AT
JODHPUR.
S.B. CIVIL WRIT PETITION NO.6691/2010
Shashikala Tripathi and anr.
Versus
The State of Rajasthan and ors.
and 29 connected writ petitions
(see Schedule)
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Dr.P.S.Bhati, Mr. C.S. Kotwani, }
Mr.H.S. Sidhu, Mr. Vinod Chaudhary }
Mr.Usma Ghani, Mr. P. Bohra, } for the petitioners.
Mr.V.K.Bhadu, Mr. Rajesh Chaudhary,}
Mr. J.P. Bhardwaj, Mr. H.R. Chawla }
Mr.Kuldeep Mathur, }
Mr.R.L. Jangid, AAG for the respondent - State.
DATE OF JUDGMENT : 26.8.2010
REPORTABLE
JUDGMENT
1. In the present set of writ petitions, the Teachers Grade III are before this Court in a batch of writ petitions and more than one joining in one writ petition also, who are working in various Government Schools in rural areas under the different Panchayati Samitis and who have been transferred from one place to another within the same Panchayati Samiti by a common order passed by the Dist. Education Officer (Elementary Education) of different Districts on 20.6.2010 and 22.7.2010. They have SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 2/29 challenged the jurisdiction of the said authority to pass the impugned transfer order from one Government School to another Government school within the same Panchayati Samiti and they claimed that the same is contrary to the provisions of Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) and the Rules made thereunder.
2. It would be appropriate to give a brief history of this litigation before the controversy raised in the present set of writ petitions is dealt with by this Court.
3. While dealing with a batch of writ petitions in which similar transfer orders within same Panchayat Samiti passed by the Dy. Secretary of Government of Rajsthan, Jaipur transferring the teachers- members of service of Rajasthan Panchayati Raj Institution (schools) was challenged by the said teachers before this Court and by the decision of coordinate Bench of of this Court in the case of Ram Singh V/s State of Rajasthan reported in 2008(2) RLW 1750 decided on 18.2.2008, the learned Single Judge of this Court held that the State Government acting through its Dy. Secretary does not have such power to transfer teachers - members of service from one school to another within the same Panchayat Samiti since non-obstante provisions of Section 89(8A) of the Act of 1994 while overriding S.89(8), specifically omits such power of the State Government while giving power to the State Government to transfer such members of service from one Panchayati Samiti to another Panchayat Samiti or from one SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 3/29 Zila Parishad to another Zila Parishad. Following the said decision, another decision was rendered by this Court recently in a batch of writ petitions on 13.7.2010, namely Badur Ram Khileree V/s State of Rajasthan and reiterating the aforesaid decision this Court again held that the State Government specifically does not have this power to transfer the teachers within the same Panchayat Samiti and it is only the competent authority defined and included within the ambit and scope of the Act of 1994 who can pass such orders. Consequent to the decision of this Court, the Elementary Education Department of Government of Rajasthan appears to have issued an order dtd.22.7.2010 taking a decision following the dictum of this Court in the case of Badur Ram Khileree (supra) - SBCWP No.5784/2010 decided on 13.7.2010 and in the same order, the Dy. Secretary, Government of Rajsathanm declared that for effecting transfer of such teachers within the same Panchayat Samiti under the Equalisation and Rationalisation Policy, appropriate orders may be issued by the competent Dist. Education Officer (Elementary Education).
4. In pursuance of this order, on the same date, the concerned Dist. Education Officer (Elementary Education) appears to have passed the impugned orders which are now challenged before this Court in the present set of writ petitions. In some of the Panchayat Samities, even prior to 22.7.2010, on 20.6.2010 some transfer orders were made by the competent Dist. Education Officer (Elementary Education)-cum-Additional Chief SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 4/29 Executive Officer, transferring such teachers from one school to another within the same Panchayat Samiti and those orders are also under challenge.
5. Since the academic session has already started in the State of Rajasthan on 1.7.2010 and on account of Equalization and Rationalization policy, mass transfer of teachers in the Government schools as well as those teachers attached with the schools in the rural areas of Panchayat Samitis have been effected and it has resulted also in mass litigation in the form of teachers challenging such orders by filing a host of writ petitions before this Court both at the Principal Seat at Jodhpur and Bench at Jaipur challenging such transfer orders on one ground or the other.
6. In the present set of writ petitions, the challenge by the petitioners is restricted to the ground of lack of jurisdiction of such Dist Education Officer (Elementary Education) (for short the DEEO) for effecting such transfer of teachers within the same Panchayat Samiti and these writ petitions are being disposed of by this common order.
7. The learned counsel for the petitioner as well as the respondents drew the attention of the Court towards the following provisions of the Act of 1994 as amended by Act No.8/2004 known as Rajasthan Panchayati Raj (Amendment) Act, 2004 by which certain important amendments were made in Section 89 of the Act and therefore, SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 5/29 these provisions of the Act and the Rules as now amended are reproduced hereunder for ready reference.
8. Firstly, the statement of object and reasons for the said Rajsathan Panchayati Raj (Amendment) Act, 2004 (Act No.8 of 2004) are reproduced below:
"STATEMENT OF OBJECTS AND REASONS Section 89 of the Rajasthan Panchayati Raj Act, 1994 provided that selection for appointment on the posts of primary and upper primary teachers shall be made at district level by the District Establishment Committees. These Committees adopted different procedures/yardsticks for selection by interpreting rules and departmental instructions in different ways. This resulted in heavy litigation. Situation had arisen in which it had become practically impossible to hold selections for appointment of teachers in primary schools. To avoid uncalled for litigation and discrepancy in selection process, it was considered necessary to make selections through a single agency and single procedure. As a result it was decided that the task of selection for appointment on the posts of primary teachers should be entrusted to the Rajasthan Public Service Commission. Therefore, it was necessary to amend Secs.89 and 90 of the aforesaid Act suitably.
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 6/29 Since the Rajasthan Legislative Assembly was not in session and circumstances existed which rendered it necessary for the Governor of Rajasthan to take immediate action, he, therefore, promulgated the Rajasthan Panchayati Raj (Amendment) Ordinance, 2004 (Ordinance No.3 of 2004) on 28.2.2004, which was published in Rajasthan Gazette, Part IV (B), Extraordinary, dated 28.2.2004.
The bill seeks to replace the aforesaid Ordinance."
9. The relevant provisions of Rajasthan Panchayati Raj Act, 1994 as amended by Act No.8 of 2004 are reproduced below:
"81A. Powers & Functions of the Block Elementary Education Officer- The Block Elementary Education Officer shall-
(a) act as officer incharge of elementary education for the Panchayati Samiti, and
(b) exercise such powers and perform such other functions as are conferred upon, or assigned to, him by the State Government."
"82. Chief Executive Officer and other Officers.-(l) An Officer of the Indian Administrative Service or the Rajasthan Administrative Service or a Project Director specially selected by the Rural Development Department] SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 7/29 shall be the Chief Executive officer of the Zila Parishad who shall be appointed by the Government. Likewise, the Government may appoint an Additional Chief Executive Officer for a Zila Parishad on such terms and conditions as may be prescribed.
'[Explanation.-The Chief Executive Officer shall include an Additional Chief Executive Officer.] (2) The Government shall also appoint a Chief Accounts Officer, a District Elementary Education Officer and a Chief Planning Officer for each Zila Parishad.
(3) The Government shall post from time to time in every Zila Parishad such number of its officers as the Government considers necessary.
(4) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any other officer or other authority authorised by it in this behalf shall have power to effect transfer of the officers and officials so posted from one district to another."
"84. Powers and functions of the Chief Executive Officer and other Officers.- (1).......... (2)....
Sub-Section (10) inserted by Section 50 of Rajasthan Act No.9 of 2000:.
(10) The District Elementary Education Officer shall act as officer incharge of elementary education for Zila Parishad and exercise such other powers and perform SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 8/29 such other functions as are conferred upon or assigned to him, by the State Government."
"89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service.-(1) There shall be constituted for the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as the service and recruitment thereto shall be made district wise.
Provided that selecdtion for the posts specified in clause (iii) of sub-section (2) shall be made at the State level.
(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of-
(i) village level workers;
(ii) Gramsevikas;
(iii) Primary and Upper Primary School teachers; and
(iv) ministerial establishment (except Accountants and Junior Accountants).
(3) The State Government may encadre in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Parishads and not included in Class IV Services.
(4) The State Government may prescribe the duties, functions and powers of each grade and each category of officers and employees encadred in the service. (5) All appointments to posts in the service shall be SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 9/29 made--
(a) by direct recruitment; or
(b) by promotion; or
(c) by transfer.
(6) Appointment by direct recruitment on the posts
specified in clauses (i), (ii) and (iv) of sub-section (2) and on the posts encadred under sub-section (3) shall be made by a Panchayat Samiti or Zila Parishad, as the case maybe, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of section 90.
(6A) Appointment by direct recruitment on the posts specified in clause (iii) of sub-section (2) shall be made by a Panchayati Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts by the Rajasthan Public Service Commission in accordance with the rules made by the State Government in this behalf.
(7) The Appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee:
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 10/29 Provided that no appointment on temporary basis shall be made on the posts specified in clause (iii) of sub-section (2).
(8) Appointments by--
(i) promotion shall be made by the Panchayat Samiti or the Zila Parishad, as the case may be, in the prescribed manner from amongst the persons whose names have been entered in the list prepared by the District Establishment Committee; and
(ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be, of the Panchayat Samitis or the Zila Parishads from and to which such transfer is proposed to be made.
(8A) Notwithstanding anything contained in sub-section (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to Zila Parishad or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of, or cancel, any order of transfer made under sub- section (8) or the rules made thereunder.
(9) Persons holding posts encadred in the service shall also be eligible for appointment or promotion to posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 11/29 promoted shall count the period of their holding posts in the service constituted under this section for the purposes of seniority and pension.
(10) Persons holding appointment in a state service shall also be eligible for appointment by transfer to a post encadred in the service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.
(11) Every person holding a post encadred in the service constituted under this section shall be entitled to the payment of a pension by the State Government out of the consolidated fund of the State in accordance with rules made by it in that behalf."
"90. Constitution and Function of the District Establishment Committee: (1) For each District, there shall be a District Establishment Committee consisting of the following-
(i) Zila Pramukh, as the Chairman,
(ii) Chief Executive Officer, and
(iii) District Elementary Education Officer (where the matter before the said committee relates to the appointment of, or disciplinary proceedings against, a teacher of a primary school; and
(iv) An officer nominated by the competent authority (2) The District Establishment Committee shall-
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 12/29
(a) make selection on the posts in different grades and categories, existing in the service except the posts specified in clause (iii) of sub- section (2) of Section 89 in the Panchayat Samiti and the Zila Parishad in the district in accordance with the rules made by the State Government in this behalf.
(b) regulate the mode of temporary appointment and recommend the names of persons for extending such appointments beyond six months;
(c) prepare lists of persons for promotion in the prescribed manner; and
(d) advise the Panchayat Samitis of the district and the Zila Parishad all disciplinary matters affecting the officers and other employees thereof other than those referred to in Secs.79 and 82, which may arise under Sec.91."
10. The relevant rules of Panchayati Raj Rules, 1996 are also reproduced hereunder for ready reference:.
"Rule 277A. Procedure and method of direct recruitment for the post of Primary and Upper Primary School Teacher :(1) Notwithstanding anything contained in these rules, procedure for direct recruitment on the post of Primary and Upper Primary School Teacher shall be as specified in sub-rule (2) to sub-rule (13)-
(2) The post of primary and upper primary school teachers shall be filled in by direct recruitment SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 13/29 through a competitive examination conducted by the Rajasthan Public Service Commission in accordance with these rules.
(3) The syllabus for competitive examination for direct recruitment to the posts of primary and upper primary school teachers shall be as specified in Schedule II.
(4) The application shall be invited by the Rajasthan Public Service Commission by advertising the posts in such manner they may deem fit and shall be made in such format as may be approved by it. The candidates shall be required to state in the application form, the names of all the 32 districts in order of their preference, in which they want to serve.
(5) Subject to the provisions of these rules notice shall among other thing state:-
(a) Number of posts to be filled in as the result of such examination indicating separately the number of posts reserved for candidates of the Scheduled Castes, Scheduled Tribes, other Backward Classes, Women candidates, physically handicapped and sports persons, if any,
(b) date of submission of applications for admission.
(c) qualification required for admission at the examination and the steps to be taken by candidates to establish their ability.
(6) In addition to the notice the Rajasthan Public Service Commission may issue, in such other manner, as the Rajasthan Public Service Commission may deem fit, such other instruction for the guidance of the candidates.
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 14/29 (7) A candidate for direct recruitment to the post in the service shall pay to the Rajasthan Public Service Commission such fee as is fixed by them, from time to time in such manner, as may be indicated by them.
(8) No claim for the refund of the examination fees shall be entertained nor the fee shall be held in reserve for any other examination except when the advertisement is cancelled by the Rajasthan Public Service Commission because of withdrawal of requisition by the Director of Elementary Education order any other reason in which case the amount shall be refunded:
Provided that no claim for the refund of fees shall be entertained after a period of one month from the date of issue of letter of refund by the Rajasthan Public Service Commission to the candidate.
(9) The applications which are found to be incomplete or have not been filled in accordance with the instructions issued by the Rajasthan Public Service Commission shall be rejected by them at the initial stage. The Rajasthan Public Service Commission shall permit rest of those candidate to appear in the examination provisionally to whom they consider it proper to grant the certificate of admission. No candidate shall be admitted to the examination unless he holds the certificate of admission that examination granted by the Rajasthan Public Service Commission before appearing at the examination it should be ensured by the candidate himself/herself that he/she fulfills the conditions in regard to age, educational qualification experience if any, as provided in the rules. Being allowed to take the examination shall not entitle SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 15/29 the candidate to presumption for eligibility. The Rajasthan Public Service Commission shall scrutinize later on the application of such candidates only, as qualify in the written examination.
(10) The decision of the Rajasthan Public Service Commission as to the admission of a candidate to an examination and eligibility shall be final. (11) The Rajasthan Public Service Commission shall prepare merit list of the candidates declared successful in the primary and upper primary school teachers examination.
Provided that the Rajasthan Public Service Commission may, to the extent of 50% of the finally intimated vacancies, keep names of suitable candidates on the reserve list. The Commission may on requisition recommend the name of such candidate in the order of merit to the Director, Elementary Education within six months from the date on which original list was forwarded by the Commission.
Provided further that the Rajasthan Public Service Commission shall prepare separate list of the candidates belonging to the Scheduled castes and Scheduled Tribes, Other Backward Classes women candidates etc. in accordance with the reservation prescribed by the Government from time to time.
(12) The names of the candidates shall be arranged in the respective list in the order of aggregate marks obtained by them in the examination.
(13) The Rajasthan Public Service Commission shall send these lists to Director of Elementary Education SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 16/29 who shall notify it for the information of concerned appointing authority. Out of these lists, Director of Elementary Education shall allot district the candidate according to the preference of candidate written by application form."
"Rule 289. Transfer within the district.-(1) The name of the employee desiring transfer or desired to be transferred within the District shall be communicated to the District Establishment Committee by the Panchayat Samiti.
(2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or Zila Parishad concerned on the recommendation of the District Establishment Committee.
(3) State Government may issue orders regarding transfers from time to time. In case District Establishment committee/ standing committee of Panchayat Samiti does not agree, Chief Executive Officer/Vikas Adhikari as the case may be, shall carry out orders of the State Government. (4) On transfer of the employee, his confidential roll and service record will be transmitted, without avoidable delay, to the Panchayat Samiti/Zila Parishad to whom his services have been transferred".
"29O. Transfer outside the District.- 1) The name of the employee desiring transfer or desired to be transferred from one district to another shall be SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 17/29 communicated to the Director by the Panchayat Samiti or the Zila Parishad, as the case may be.
(2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the State Government against the vacant posts existing at such time The State Government may transfer any member of service from one Panchayat Samiti to another Panchayat Samiti within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from Panchayat Samiti to Zila Parishad or from a Zila Parishad to Panchayat Samiti and may also stay the operation of or cancel, any order of transfer made under these rules. Chief Executive Officer or Vikas Adhikari concerned shall carry out such orders.
(3) On transfer of an employee, his confidential roll and service record will be transmitted without avoidable delay to the Panchayat Samiti/Zila Parishad to whom his services have been transferred."
" Rule 291. Seniority on transfer: Seniority of an employee transferred outside the district, by the State Government under Sub-sec.(8-A) of Sec.89 shall be determined by the Committee of the District to which he is transferred-
(i) if the transfer is made on the request of the employee, his seniority shall be fixed at the bottom of the seniority list of the cadre to which he belongs; and SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 18/29
(ii) if the transfer is made on administrative or other reasons, his seniority shall be fixed on the basis of his continuous length of substantive service on an analogous post."
"336. Other powers and functions of the Chief Executive officer:- In addition to the powers and duties laid down in Section 84 of the Act, the Chief Executive Officer shall assist the Pramukh in discharge of functions specified in Rule 336 and perform additional duties and exercise powers as under:-
(1)...
(2)...
(36) Transfers of members of Panchayat Samiti and Zila Parishad Service within the District as per general guide lines or decision of Zila Parishad. No Gram Sevak shall be posted in Home Panchayat."
11. The learned counsel for the petitioners also submitted that while this Court has already held in the case of Ram Singh V/s State (supra) and Badur Ram Khileree V/s State of Rajathan (Supra) that the State Government does not have jurisdiction to pass transfer orders effecting transfer of teachers within the same Panchayat Samiti, the impugned orders passed y the DEEO are also orders passed by the authority of the State Government only and therefore, such orders also cannot be sustained for the same reasons and they deserve to be quashed. They also contended that as per Section 81A of the Act, only Block Elementary Education Officer (BEEO) has jurisdiction to effect such SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 19/29 transfer of teachers within the same Panchayat Samiti and not the District Elementary Education Officer (DEEO).
12. On the other hand, Mr. R.L. Jangid, AAG for the State urged that with amendment effected in Section 89 by inserting Sub- Section (6A) in Section 89 and also amending the relevant Rules like insertion of Rule 277A to fall in line with such amendment, as far as Teachers who are members of service vide Clause 2(iii) of Section 89 are concerned, they have been separated from the control of the Panchayat Samiti and appointment will now be undertaken through RPSC at the State Level and transfers can also be effected by the authority of the State Government. The learned AAG also contended that even as per the existing provisions prior to amendment of 2004, the Dist. Education Officer (Elementary Education) Officer cum Additional Chief Executive Officer had such power to effect transfer of teachers within the same Panchayat Samiti by virtue of Section 84(10) of the Act of 1994 and therefore, the impugned orders cannot be said to be without jurisdiction at all. Taking the Court through the various provisions of the Act quoted above, the learned AAG submitted that the work of DEEO is to supervise and control the administration of Elementary Education the Government schools at District level including transfers of teachers within the same Panchayat Samities, whereas the Block Elementary Education Officer (for short, the BEEO) is to control and supervise such administration of Elementary Education at Block level; a step SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 20/29 lower than the District level and therefore, he submitted that the contention of the learned counsel for the petitioners that the jurisdiction to transfer teachers within the same Panchayat Samiti from one school to another School vested in the BEEO and not in DEEO is unsustainable because the said authority - DEEO had specifically been included under Section 84(10) of the Act for the purpose of vesting him with the powers of administration, supervision and control of such teachers working in the schools as he is incharge of such elementary education now in Panchayat Samities under this Act and his powers were not the same as were exercised by the concerned Dy. Secretary of the Government of Rajasthan, whose orders came to be quashed by this Court in the case of Ram Singh and Badur Ram Khileree cases (supra) cited by the learned counsel for the petitioners. He submitted that such DEEO had complete powers and jurisdiction to effect such transfers of teachers within the same Panchayat Samiti also and same was not at all hit by the provisions of Section 89(8A) of the Act as it stood. He further submitted that even otherwise DEEO being a higher authority than BEEO, could exercise such powers as he had such powers concurrently with BEEO, and Section 81A could not be said to exclude such powers of DEEO as he is overall incharge of Elementary Education at District level by virtue of Section 84(10) of the Act. Therefore, the present writ petitions are misconceived and same deserves to be dismissed. SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 21/29
13. Having heard the learned counsels at length and after giving my thoughtful consideration to the relevant amended provisions of the Act and the Rules, this Court is of the view that there is considerable force in the submissions made by the learned AAG and the present writ petitions assailing the impugned transfer orders passed by the DEEO as defined in Section 84(10) of the Act, deserve to be dismissed.
14. The decisions rendered by this Court in the case of Ram Singh and Badur Ram Khileree (supra) were rendered in view of casus omissus in the non-obstante provisions of Section 89(8A) of the Act which as quoted above can be seen to be omitting such powers of the State Government itself and power to transfer to be exercised by the State Government is only when such transfers are affected from one Panchayat Samiti to another Panchayat Samiti or from one Zila Parishad to another Zila Parishad, but not to be exercised while effecting transfers of teachers within the same Panchayat Samiti. The purpose and object of this deliberate omission based on the maxim casus omissus pro omisso habendus est (meaning a case omitted is to be held as intentionally omitted as per Blacks' Law Dictionary) is obvious and that is in consonance with 73rd amendment of Constitution of India with a view to decentralize the power upto the ground level and to give supremacy to the Panchayati Raj Institutions, this power was deliberately kept with the Panchayati Samiti and with the Dist. Establishment SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 22/29 Committee in consonance with Section 89(8A) of the Act, but those judgments do not apply in the facts and circumstances of the present case, where such transfer orders have been effected by the competent authority defined under Section 84(10) of the Act of 1994 and such orders have been passed by him on 20.6.2010 independently or even in pursuance of order dtd.22.7.2010 of the Dy. Secretary to the Government of Rajasthan, Jaipur while canceling the earlier transfer orders passed by such Dy. Secretary himself vide decision dtd.22.7.2010 taken by the Dy. Secretary in terms of judgment of this Court in the case of Badur Ram Khileree (supra), while at the same time directing the DEEO to effect such transfers. These transfer orders passed by the DEEO would not be rendered illegal or without jurisdiction, even if they were passed on 22.7.2010 at the instance or directions of the Dy. Secretary of the Government of Rajasthan.
15. The said transfer orders for all purposes have been passed by the competent authority, namely, DEEO who has full competence and jurisdiction to pass such orders under the Act of 1994. The contention of the learned counsel for the petitioner that a lower authority namely, BEEO as empowered in Section 81A of the Act only had such power and that too to the exclusion of the DEEO, is misconceived and deserves to be rejected. The very purpose for which the DEEO was given such power of supervision and control of public service which as per Section 89(2)(iii) included the teachers of primary and upper primary schools SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 23/29 working in the School covered by the Panchayati Raj Institutions set up, is to give him the power of effective control of administration and supervision of such public service at District level. Merely because such power is also vested in the BEEO at Block level, which would also of course cover his power to transfer the teachers within the same Panchayat Samiti, does not mean that such powers of the higher authority DEEO stands excluded. Such interpretation would render the very purpose of amendment for vesting the powers and control of supervision at District level which includes power to transfer within the same Panchayat Samiti also in the authority designated as DEEO, nugatory. Such cannot be the intention at all of the legislation nor such an interpretation can be put by this Court. Therefore, the impugned transfer orders passed by the higher authority than the BEEO, namely, DEEO cannot be said to be without jurisdiction and illegal in any manner and therefore, in the considered opinion of this Court, challenge to the impugned transfer orders by the petitioners deserve to fail.
16. This view is strengthened by the following decisions of the Apex Court, where powers of disciplinary action exercised by higher Authority was upheld by the Hon'ble Supreme Court. In the case of State Bank of India V/s Anjay Sanyal and ors. reported in (2001) 5 SCC 508, the Hon'ble Supreme Court held as under:
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 24/29 "An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order. Keeping in view Rules 47, 49, 50(1), 66 and 67 of the State Bank of India Officers' Service Rules, when one considers the legality of an order of transfer, allegedly passed on 14.6.1986, after the employee had continued in Calcutta for more than a decade and the said order had not been held by the High Court either to be mala fide or incompetent, it is not possible to come to a conclusion that the said order had not been passed nor had been communicated to the employee concerned. The correspondence between the Bank and the respondent and the entire fact situation unerringly points out to one fact, namely, that the respondent flouted the orders of transfer."
17. In the case of A. Sudhakar V/s Postmaster General, Hyderabad reported in (2006) 4 SCC 348, it has been held as under:
"If an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 25/29 the same but in a case of this nature where clause (1) of Article 311 of the Constitution envisages that a major penalty should not be imposed save and except by an order passed by the appointing authority, the latter becomes the designated authority. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution."
18. In the case of Government of Andhra Pradesh V/s N.Ramanaiah reported in (2009) 7 SCC 165, the Hon'ble Supreme Court has observed as under:
"Rule 14(2) clearly enables not only the appointing authority but any authority to which the appointing authority is subordinate, to impose penalties including dismissal of government servant from service. There is no provision in the Rules which prohibits the Government from exercising power of appointing authority in the matter of imposition of penalties specified in clauses (ii) and (v) to (ix) of Rule 9, which includes dismissal from service. The disciplinary authority endowed with the jurisdiction to impose on a member of subordinate service, the penalties specified in clause (ii) to (v) to (ix) of Rule 9 includes not only the appointing authority but any authority to which the SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 26/29 appointing authority is subordinate. The power is concurrently conferred upon the appointing authority and as well as the authority to which the appointing authority is subordinate. The Engineer-in-Chief being the appointing authority in respect of the post that was held by the respondent delinquent at the time of initiation of disciplinary enquiry is subordinate to the Government. In such view of the matter, it cannot be said that the Government had no jurisdiction or the authority under the Rules to impose a major penalty on the respondent employee."
19. The amendment effected in Act of 1994 by the Act No.8 of 2004 in the year 2004 was with a view to take away the power of selection of teachers from Panchayat Samiti and to vest the same in the RPSC at State level was obviously with a view to make such selection process more centralized, concentrated, regular and transparent and to make it available at State level as against at Panchayat level. Though appointments have to be made by Panchayat Samiti or Zila Parishad as per Sub-Section (6A) of Section 89, but the same has to be out of the persons so selected by RPSC at State level as per Rule 277A of the Rules of 1996 quoted above. This change might have been brought about to obviate the arbitrariness in the selection process or irregularities committed at local levels of Panchayat Samiti as is evident from the statement of objects and reasons of Act No.8 of 2004 quoted SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 27/29 above. The fact remains that the amendment of law now takes away this power of selection of teachers from Panchayat Samitis. The power of appointment thus effectively now vests with the State/RPSC and obviously, the power of effective control and supervision including the disciplinary action of such members of service, namely, teachers should also vest in the State Government. Though Sub-Section (6A) of Section 89 does not specifically include the power of transfer and speaks only about appointment, but since control and supervision is vested in the authority of the State like the DEEO, who has been deputed to exercise such control and supervision as defined in Section 84(10) of the Act and he has been made incharge of Elementary Education at District level under the Panchayati Raj Act read with relevant Rules 289 and 290, there is no need to read these provisions as excluding such powers to transfer the teachers within the same Panchayat Samiti from the jurisdiction of the DEEO. Thus, both DEEO and BEEO have concurrent powers to effect transfer of teachers from one school to another within the same Panchayat Samities on a harmonious reading of the relevant provisions of the Act and the Rules.
20. Consequently, this Court is of the view that the impugned transfer order of the petitioners - teachers within the same Panchayat Samiti passed by the Dist. Education Officer (Elementary Education) cannot be successfully assailed on the ground of lack of jurisdiction. SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 28/29
21. The learned counsel for the petitioners also relied upon the decision of this Court in the case of Jagmala Ram V/s State of Rajasthan reported in 2004 WLC (Raj.) UC 483 in which dealing with Rules 289 and 290 of the Rules of 1994, the transfer orders of teachers from one district to another passed by the Director (Elementary Education) was challenged and the Court held that such power was not vested in the Director - an authority of the State and therefore, such transfer orders were liable to be quashed. This judgment is of no avail to the petitioners in the present case since in that case transfers were effected from one district to another, outside same Panchayat Samiti, whereas in the present case, the transfer orders have been passed by the competent authority, namely, the DEEO, within the same Panchayat Samiti and by DEEO who has been specifically deputed and defined to exercise such powers of administration and control of elementary education under Section 84(10) of the Act and therefore, the said decision is of little help to the learned counsels for the petitioners.
22. Consequently, these writ petitions are liable to be dismissed and the same are hereby dismissed. No order as to costs.
(Dr.VINEET KOTHARI)J. Item No. SS/-
SBCWP NO.6691/2010 - SHASHIKALA TRIPATHI AND ANR V/S THE STATE OFRJAASTHAN AND ORS.: DATE OF ORDER DTD.26.8.2010 29/29 SCHEDULE S.No. SBCWP Name of the parties Impunged Passed by No. order dated 1 7875/2010 Hazari Mal Rao V/s State 28.7.2010 DEEO, Sirohi 7171/2010 Smt. Nirmala Paliwal V/s State 20.6.2010 DEEO cum ACEO, 2 Udaipur.
3 7320/2010 Smt. Shobha Vijayvirgiya V/s State 27.7.2010 DEEO, Bhilwara 4 7303/2010 Mohd. Sohail Khan V/s State 27.7.2010 DEEO, Jodhpur 5 7460/2010 Dungar Ram Godara V/s State 30.7.2010 DEEO, Bikaner 6 7508/2010 Dinesh Kumar Doda V/s State 27.7.2010 DEEO, Sri Ganganagar 7 7522/2010 Smt. Naresh Kumari V/s State 27.7.2010 DEEO, Sri Ganganagar 8 7545/2010 Renu Bala V/s State 31.7.2010 BEEO, Sadulshahar 9 7546/2010 Asha Rani V/s State 31.7.2010 BEEO, Sadulshahar 10 7576/2010 Gopal Yadav V/s State 29.7.2010 DEEO, Udaipur 11 7604/2010 Smt. Sarla Arora V/s State .2.7.2010 BEEO, Sri Karanpur 12 7615/2010 Rakesh Juneja V/s State 31.7.2010 BEEO, Sadulshahar 13 7618/2010 Chhotu Singh Rathore V/s State 27.7.2010 DEEO, Nagaur 14 7619/2010 Dilip Singh & 16 ors. V/s State 27.7.2010 DEEO, Nagaur 7676/2010 Smt. Bashiran V/s State .6.7.2010 DEEO cum ACEO, 15 Bikaner.
16 7786/2010 Surender Kumar Gehlot V/s State 30.7.2010 DEEO, Hanumangarh 17 7876/2010 Surendra Kaur V/s State 27.7.2010 DEEO,Sri Ganganagar 18 7877/2010 Likhma Ram V/s State 27.7.2010 DEEO, Nagaur 19 7878/2010 Smt. Fula Devi V/s State 27.7.2010 DEEO, Nagaur 20 7879/2010 Devpal Singh Khinchi V/s State 30.7.2010 DEEO, Bikaner 6725/2010 Bhoop Singh V/s State 20.6.2010 DEEO cum ACEO, 21 Hanumangarh.
6781/2010 Girdhari Singh Bhati & 5 ors. V/s 20.6.2010 DEEO cum ACEO, 22 State Udaipur 6958/2010 Nathu Lal Rana V/s State 20.6.2010 DEEO cum ACEO, 23 Sirohi 24 7959/2010 Gurmit Singh V/s State 27.7.2010 DEEO,Sri Ganganagar 25 8010/2010 Balvinder Singh V/s State 30.7.2010 DEEO, Hanumangarh 7172/2010 Ilayachi Jain V/s State 20.6.2010 DEEO cum ACEO, 26 Udaipur.
7173/2010 Smt. Renu Dhakar V/s State 20.6.2010 DEEO cum ACEO, 27 Udaipur.
28 7761/2010 Monika Rani V/s State 31.7.2010 BEEO, Sadulshahar 7859/2010 Jugal Kishore Mahatma V/s State 20.6.2010 DEEO cum ACEO, 29 Bikaner