Rajasthan High Court - Jodhpur
Murari Lal vs State Of Rajasthan & Ors on 7 September, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3595 / 2017
Murari Lal S/o Shri Hardwari Lal, Aged About 50 Years, R/o New
Peerkhana, Ward No. 17, Tehsil- Pilibanga, District- Hanumangarh.
----Petitioner
Versus
1. The State of Rajasthan Through the Secretary, Department of
Rural Development and Panchayati Ra, Govt. of Rajasthan,
Secretariat, Jaipur.
2. The Chief Executive Officer, Zila Parishad, Hanumangarh,
District- Hanumangarh.
3. The Vikas Adhikari, Panchayat Samiti, Pilibanga, District-
Hanumangarh.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. J.S.Bhaleria
For Respondent(s) : Mr. Manish Patel, AGC
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
Order 07/09/2017
1. This petition is directed against order dated 9.3.17 issued by Chief Executive Officer, Zila Parishad, Hanumangarh, whereby the petitioner holding the post of Gram Sewak and Ex Official Secretary, Gram Panchayat, Goluwala Sihagan, Panchayat Samiti, Pilibanga has been transferred to Gram Panchayat, Kulchandra, Panchayat Samiti, Tibbi.
2. Learned counsel appearing for the petitioner contended that as per the provisions of Rule 289 of Rajasthan Panchayati Raj Rules, 1996 (for short "the Rules"), the order transferring the petitioner from one Panchayat Samiti to another Panchayat Samiti (2 of 3) [CW-3595/2017] could have been issued only on the recommendations of the Administration & Establishment Committee of the Zila Parishad, Hanumangarh, and thus, order impugned issued by the Chief Executive Officer without there being any such recommendations is ex facie without jurisdiction. Learned counsel drawing the attention of the court to Section 89 (8) (ii) of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act"), submitted that the transfer from one Panchayat Samiti to another Panchayat Samiti is permissible to be made only after consultation with the Pradhans of Panchayat Samiti from and to which such transfer is proposed to be made but no such consultation was made and thus, the order impugned issued in violation of the provisions of Section 89(8) (ii) of the Act is ex facie illegal and deserves to be quashed.
3. Learned Additional Government Counsel submitted that the transfer is incidence of service and the petitioner holding the transferable post cannot claim to continue at any particular place and thus, the order impugned issued for administrative exigency does not warrant any interference by this court. Learned counsel submitted that in the first instance the petitioner holding the post of Gram Sewak and Ex Officio Secretary, Panchayat Samiti, Goluwala Sihagan was kept awaiting posting order at Panchayat Samiti, Pilibanga as a disciplinary proceeding was contemplated against him and thereafter, he has been posted at Gram Panchayat, Kulchandra, Panchayat Samiti, Tibbi. It is submitted that since the petitioner has not raised any grievance against the order whereby he was kept under awaiting posting order, he cannot be permitted to question the impugned posting order.
(3 of 3) [CW-3595/2017]
4. I have considered the rival submissions and perused the material on record.
5. A bare perusal of Section 89(8)(ii) of the Act makes it abundantly clear that in case an employee is proposed to be transferred from one Panchayat Samiti to another by the Zila Parishad concerned on the recommendations of Administration & Establishment Committee of Zila Parishad concerned consultation with the Pradhans of Panchayat Samitis from and to which such transfer is proposed to be made is mandatory. That apart, by virtue of Section 289 (2), the Chief Executive Officer of the Zila Parishad concerned is not competent to issue the transfer order in absence of any recommendations made in this regard by the Administration & Establishment Committee of Zila Parishad concerned. In this view of the matter, viewed from any angle, the order impugned issued by the Chief Executive Officer, Zila Parishad straight away transferring the petitioner from one Panchayat Samiti to another Panchayat Samiti without compliance of the provisions of Section 89(8)(ii) of the Act and Rule 289(2) of the Rules is ex facie without jurisdiction.
6. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 9.3.17 issued by the Chief Executive Officer, Zila Parishad, Hanumangarh is quashed. It is made clear that the respondents shall be at liberty to issue fresh transfer order of the petitioner in case of administrative exigency in accordance with law. No order as to costs.
(SANGEET LODHA), J.
aditya/