Rajasthan High Court - Jodhpur
Smt. Chanda Devi vs State (Pan. Raj. & Rural Deve.) & Ors on 2 April, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
SBCWP No. 2222/2012.
Smt. Chanda Devi Vs. State of Rajasthan & Ors.
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S.B. CIVIL WRIT PETITION NO. 2222/2012.
Smt. Chanda Devi
Vs.
State of Rajasthan & Ors.
..
Date of Order :: 2nd April 2012.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Kishan Bansal, for the petitioner.
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BY THE COURT:
The petitioner, working on the post of Teacher Gr.III, seeks to question by way of this writ petition, the order dated 01.03.2012 whereby the Rajasthan Civil Services Appellate Tribunal, Jaipur ('the Tribunal') has dismissed her appeal against the orders dated 26.09.2010 whereby she was transferred from the Government Upper Primary School, 4E Chhoti, Panchayat Samiti Sriganganagar to the Government Upper Primary School, 30BB Padampur, Panchayat Samiti Padampur; and dated 28.12.2010 whereby her representation was rejected by the Department.
The transfer order aforesaid is sought to be questioned by the petitioner as being violative of the statutory provisions contained in Section 89(8) of the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') and Rule 289 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996') because she was ordered to be transferred from Panchayat Samiti Sriganganagar to Panchayat Samiti Padampur by the District SBCWP No. 2222/2012.
Smt. Chanda Devi Vs. State of Rajasthan & Ors.
[ 2 ] Elementary Education Officer ('the DEEO') who was not competent to do so; and then, the order was issued without mandatory consultation with the Pradhans of both the Panchayat Samitis Further, according to the petitioner, the transfer order is not bonafide as she had been transferred only in order to accommodate the respondent No. 3 in her place.
It is noticed from the material placed on record that the petitioner earlier challenged the said transfer order dated 26.09.2010 in an appeal (No. 3068/2010) before the Tribunal; and the Tribunal, by its order dated 02.11.2010, disposed of the said appeal while directing the petitioner to submit a representation and to the respondents to decide the representation with a reasoned order and while staying the relieving order in the meantime. Pursuant to the order aforesaid, the petitioner made a representation on 01.12.2010 that was, however, rejected by the respondents on 28.12.2010. Thereafter, the petitioner preferred another appeal (No. 552/2011) seeking to question the said orders dated 26.09.2010 and 28.12.2010. In this appeal, the principal ground urged before the Tribunal was that the transfer order was wholly unauthorised for having been issued by the DEEO who was not competent to do so per Sub-sections (8) and (8- A) of Section 89 of the Act of 1994 read with Rule 289 of the Rules of 1996. It was also submitted that the petitioner could not have been transferred from one Panchayat Samiti to another without compliance of the requirements of consultation with the respective Pradhans per Sub-section (8) of Section 89 SBCWP No. 2222/2012.
Smt. Chanda Devi Vs. State of Rajasthan & Ors.
[ 3 ] of the Act of 1994. The Tribunal has, however, rejected such contentions and dismissed the appeal with reference to the order dated 12.10.2011 as passed by this Court at Jaipur Bench in a batch of petitions led by CWP No. 3539/2011: Smt. Anita Middha Vs. Rajasthan Civil Services Appellate Tribunal, Jaipur & Ors.
Seeking to assail the orders aforesaid, it is submitted that as per Section 89(8) of the Act of 1994, the transfer of the employees in the Panchayati Raj institutions could be made only 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; and in the instant case, when the impugned transfer order has been issued without consultation with the Pradhans of the respective Panchayat Samitis, it is in gross violation of the mandatory requirements of the Act of 1994. It is further submitted that the impugned transfer order is even otherwise not sustainable as the same has not been issued in any administrative exigency or public interest but has only been issued with a view to accommodate the respondent No. 3 in place of the petitioner. The learned counsel for the petitioner has relied upon the decision of this Court in the case of Narpat Singh Rajpurohit Vs. State of Rajasthan: WLR 1991 (S) Raj
136. After having given a thoughtful consideration to the submissions made with reference to the law applicable, this Court is unable to find any reason to entertain this writ petition.
SBCWP No. 2222/2012.
Smt. Chanda Devi Vs. State of Rajasthan & Ors.
[ 4 ] So far the statutory requirements are concerned, it does not remain much of doubt or dispute that Sub-section (8-A) of Section 89 of the Act of 1994 empowers the State Government to transfer any member of service from one Panchayat Samiti to another, from one Zila Parishad to another, and from one Panchayat Samiti to a Zila Parishad or from one Zila Parishad to a Panchayat Samiti notwithstanding anything contained in Sub-section (8) of Section 89 of the Act of 1994. In the case of Smt. Anita Middha (supra), after examining the scheme of the provisions aforesaid, a co-ordinate Bench has held,-
"In view of aforesaid, while transfer order is passed invoking sub-section (8A), consultation with the Pradhan or Pramukh, as the case may be, is not required. Such consultation is required only when transfer is effected by invoking provision of sub-section (8) of section 89 of the Act of 1994. Since provision of sub-section (8A) is specific and clear in its term, the argument of learned counsel for petitioners in regard to sub section (8)(ii) of section 89 of the Act of 1994 cannot be accepted as the order of transfer has been passed by the DEEO. The provision of section 84 (10) of the Act of 1994 is also relevant for that purpose."
In the said decision, the issue as to whether the DEEO is having the power to transfer was also considered with reference to an order issued by the Government on 27.07.2010 and thereafter, the Court said,-
"Perusal of the para quoted above reveals that circular was issued by the State Government to delegate its powers to the DEEO. In view of aforesaid and co-joint reading of section 89 (8A) with section 84 (10) of the Act of 1994 along with the order dated 22.7.2010 referred to above, delegation of power exists in favour of the DEEO, who has passed the impugned orders of transfer.
In view of the above, the contention as urged on behalf of the petitioner that the order of transfer suffers from violation SBCWP No. 2222/2012.
Smt. Chanda Devi Vs. State of Rajasthan & Ors.
[ 5 ] of the statutory requirement falls to the ground.
So far the suggestion that the transfer order has been issued only in order to accommodate the respondent No. 3 is concerned, in the first place, such an argument is not found specifically urged before the Tribunal. Moreover, an order of transfer cannot be considered invalid only on the suggestion that it has been made with a view to accommodate any other incumbent; and, as held by the Hon'ble Supreme Court in the case of Shilpi Bose Vs. State of Bihar: AIR 1991 SC 532, in a given case, a competent authority could issue transfer order even with a view to accommodate a public servant to avoid hardship. Hence, the observations as occurring in Narpat Singh Rajpurohit's case (supra) with reference to the contentions urged on behalf of the petitioner therein, do not inure to the benefit of the present petitioner. On the cursory suggestions as made in the present case, it is difficult to make out that the impugned transfer order suffers from mala fide.
In view of what has been discussed above, no case for interference in the writ jurisdiction is made out.
The petition fails and is, therefore, dismissed.
(DINESH MAHESHWARI), J.
//Mohan//