Rajasthan High Court - Jodhpur
State Of Rajasthan vs Mool Shanker on 14 January, 2022
Bench: Akil Kureshi, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 683/2021
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Govt. Of Rajasthan, Jaipur.
2. The Principal Secretary, Panchayati Raj Department,
Government Of Rajasthan, Jaipur.
3. Director (Non Gazetted), Medial And Health Services,
Rajasthan, Jaipur.
4. Principal Medical Officer, Barmer.
----Appellants
Versus
Mool Shanker S/o Deva Ram, Aged About 38 Years, By Caste Jat,
R/o Village Murtala Gala, Post Mahabar, Tehsil Barmer, District
Barmer (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 17/2022
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Secretariat, Jaipur.
2. Director, Medical And Health Services, Tilak Marg, Jaipur.
3. Chief Medical And Health Officer, District Churu.
4. Block Chief Medical And Health Officer, Rajgarh, District
Churu.
5. Principal Secretary, Department Of Rural Development
And Panchayati Raj, Jaipur, Rajasthan.
----Appellants
Versus
Krishna Devi W/o Shri Surendra Singh, Aged About 52 Years,
Resident Of Vill Kandhran Teh. Rajgarh, Distt. Churu At Present
Working As Anm, Chc, Rajgarh, The. Rajgarh, District Churu.
----Respondent
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For Appellant(s) : Mr. K.S. Rajpurohit, AAG
through V.C. Mr. Rajat Arora.
For Respondent(s) : Mr. Rishabh Tayal
through V.C.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MS. JUSTICE REKHA BORANA
Judgment 14/01/2022 These appeals arise out of a common judgment of the learned Single Judge dated 02.08.2021 passed in the respective petitions.
Brief facts may be noted at the outset.
The State Government had transferred some of its activities and employees and placed them at the disposal of the Panchayats for working in various Panchayati Raj institutions. In furtherance of this scheme, under a notification dated 11.03.2011, the State Government had promulgated the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (hereinafter to be referred to as the 'Rules of 2011'). The term 'transferred employee' was defined in Rule 2(iv) of the Rules of 2011 as to mean the employees working on the posts relating to activities transferred to the Panchayati Raj Institutions. Chapter-II of the said Rules pertains to controlling of transferred employees. Rule 3 contained in the said chapter reads as under:
"3. Status.- (1) The transferred employees of State Government shall remain the employees of the State Government and their services shall be governed by the service rules concerned of the State Government. (Downloaded on 15/01/2022 at 08:45:32 PM)
(3 of 14) [SAW-683/2021] (2) The cadre control of the transferred employees shall be with the department concerned of the State Government."
Rule 7, which pertains to disciplinary proceedings and provides that the disciplinary matters of the transferred employees shall be governed by the provisions of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. Rules 8, which pertains to transfer, is of considerable importance and reads as under:
"8. Transfer.- Transfer of such transferred employees shall be made under the transfer policy and directions issued by the State Government from time to time, by:-
(i) the Administration and Establishment Committee of the Panchayat Samiti concerned within the same Panchayat Samiti.
(ii) the District Establishment Committee of the Zila Parishad concerned from one Panchayat Samiti to another Panchayat Samiti within the same District.
(iii) the department concerned from one district to another district with the consent of the Panchayati Raj Department."
As per this rule, the transfer of the transferred employees shall be made under the transfer policy and directions of the State Government. However, if such transfer is to be made within the same Panchayat Samiti, the same would be done by the Administration and Establishment Committee of the Panchayat Samiti concerned. If such transfer is from one Panchayat Samiti to another Panchayat Samiti within the same district, the same shall be done by the District Establishment Committee of the Zila Parishad concerned. When such transfer is from one district to another district, it would be done by the department concerned with the consent of the Panchayati Raj department. This rule shall come up for reference later.
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(4 of 14) [SAW-683/2021] The Health department of the State Government in exercise of the powers under Rule 8, made a major reshuffle of its medical and para-medical staff by passing transfer orders in the month of December, 2020. These transfer orders included medical as well as para-medical staff such as Doctors, Nurses etc and the transfer orders were of all three kinds namely, within the same Pachayat Samiti area, inter Panchayat Samiti areas within the same district, as well as from one district to another. In the case of Krishna Devi, the employee happened to be a Nursing staff and she has been transferred from one district to another. In the case of Mool Shanker, he also happened to be a Nursing staff and he has been transferred from one Panchayat Samiti to another Panchayat Samiti, but within the same district. Both these employees had therefore approached the High Court and challenged their orders of transfer primarily on the ground that such transfer orders were passed by the Health department without the consent of the Panchayati Raj department. We may record that large number of similar writ petitions have been filed before the High Court. The High Court had stayed all these transfer orders. Learned counsel for the Government submitted that this has brought about a difficult situation for the administration. In the case of those employees, who have approached the High Court and whose transfer orders were stayed the administration could not shift them from their original place of posting. As against this, those employees who were transferred vice the petitioners, who were protected by the High Court, they left the charge of their original place of posting and reported at the place of transfer. As a result, there are large number of cases where there are two incumbents (Downloaded on 15/01/2022 at 08:45:32 PM) (5 of 14) [SAW-683/2021] against one post and conversely there are number of places where the posts have remained vacant without any posting.
The learned Single Judge by the impugned common judgment allowed the petitions along with several other petitions involving similar question of law. The learned Single Judge was of the opinion that the requirement of obtaining consent from the Panchayati Raj department was mandatory in nature and not merely directory. Since in the present case, no such consent was obtained, in the opinion of the learned Single Judge the orders were bad in law. The State Government has filed appeals against two of these orders and we are informed that the Government has not accepted the judgment in the case of all the employees similarly situated. We are also informed that close to 100 petitions involving similar challenge are still pending and are not yet disposed of by the learned Single Judge.
Learned counsel for the Government raised the following contentions:
(i) The requirement of obtaining consent as referred in Rule 8 of Rules of 2011 is directory and not mandatory. He submitted that since there is no adverse consequence of not obtaining consent, such requirement should be interpreted as directory.
(ii) He pointed out that Rule 13 of the Rules of 2011 provides that in case of doubt in relation to the interpretation and scope of any of the provisions of the rules, the decision of the Panchayat Raj department would be final. With the aid of this provisions, he referred to the order dated 16.06.2018 issued by the Chief Secretary, Panchayat Raj department in which it is provided that in view of the order passed by the (Downloaded on 15/01/2022 at 08:45:32 PM) (6 of 14) [SAW-683/2021] State Government dated 12.03.2018 which contained permission for effecting transfer during this period, obtaining consent of the Panchayati Raj department for effecting transfer would not be necessary. Heavy reliance was placed on this order in order to contend that the learned Single Judge committed error in quashing the transfer orders for want of consent from the Panchayati Raj department.
(iii) He further submitted that the view taken by the learned Single Judge has led to major administrative difficulties. As pointed out earlier, there are large number of posts on which there are no incumbents working on the existing posts and number of posts have remained vacant. At the time when the administration is dealing with major health challenges due to Coronavirus, keeping such posts vacant is not conducive of good administration.
On the other hand, Mr. Rishabh Tayal appeared for the original petitioners on caveat and opposed the appeals contending that the learned Single Judge has given cogent reasons for setting aside the transfer orders. He submitted that Rule 8 refers to the requirement of obtaining consent from the Panchayati Raj department before effecting inter district transfers of the employees. Admittedly, in the present case no such consent has been obtained.
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 73 rd Amendment Act, 1992 with effect from 24.04.1993. This chapter contains detailed provisions for constitution and composition of Panchayats through which the Panchayati Raj institutions have (Downloaded on 15/01/2022 at 08:45:32 PM) (7 of 14) [SAW-683/2021] 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. It is in this context that Rule 2(iv) of the Rules refers to 'transferred employees'. Sub-rule (1) of the Rule 3 provides that a transferred employee of the State Government shall remain the employee of the State Government and therefore his services shall be governed by the service rules concerned of the State Government. As per Sub-rule (2) of Rule 3, control of the transferred employee would be with the department concerned of the State Government. We have also noticed that as per Rule 7, the disciplinary matters of the transferred employee shall be governed by the provisions of the Rajasthan Civil Services (Classification, Control and Appeal) Rules. In this context, we have to interpret the provisions of Rule 8 pertaining to transfer of such employees. As noted such transfer can take place under any one of the three eventualities namely;
(i) When the transfer is within the same Panchayat Samiti;
(ii) Where the transfer is from one Panchayat Samiti to another Panchayat Samiti but within the same district; and
(iii) Where such transfer is effected inter-district.
In the first eventuality, the power to transfer is vested with the Pancahayat Samiti concerned. In the second case, the transfer can be ordered by the District Establishment Committee of the Zila Parishad. In the third scenario, when the transfer is inter-district, (Downloaded on 15/01/2022 at 08:45:32 PM) (8 of 14) [SAW-683/2021] the same can be ordered by the department concerned but with the consent of the Panchayati Raj department. In this case, we are concerned with scenagrio no. 2 and 3. In case of Mool Shanker, the transfer is within the same district but order has been passed by the department of Health and not by the District Establishment Committee of the Zila Parishad concerned, as is referred to, in Rule 8. In case of Krishna Devi, the order of transfer has been passed again by the department of Health but without the consent of Panchayati Raj department.
First, dealing with the first situation, we may recall that as per Rule 8, transfer of a transferred employee would be made under the transfer policy and directions issued by the State Government from time to time and when such transfer is within the same district but from one Panchayat Samiti to another Panchayat Samiti, the same would be made by the District Establishment Committee of the Zila Parishad concerned. When Rule 8 refers to the transfer to be made under the transfer policy and directions issued by the State Government from time to time, the same cannot completely take away the powers of the District Establishment Committee of the Zila Parishad to order transfers. Rule 8 in this context requires that the transfer that may be made by the District Establishment Committee would have to follow the transfer policy framed by the Government and directions issued by them in this regard. 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 (Downloaded on 15/01/2022 at 08:45:32 PM) (9 of 14) [SAW-683/2021] 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. In the present case, the Health department has totally disregarded the District Establishment Committee and reshuffled the medical and para- medical staff within the same district and issued orders of transfer. In our opinion, the same is wholly impermissible. This however does not prevent the administration from undertaking the exercise of rationalizing the medical and para-medical staff by posting suitable personnel in sufficient numbers at various places within the district. Nothing stated in the judgment of the learned Single Judge or in this judgment would prevent the administration from undertaking such exercise afresh and nothing would prevent the Zila Parishad concerned from ordering transfers of such employees within the same district by keeping in mind the Government policy and directions issued from time to time for the purpose of transfers.
Coming to the validity of the transfer orders of the staff which effects inter-district transfers, the question that arises is whether the Health department can order such orders without obtaining consent of the Panchayati Raj department. The term 'consent' has not been defined in the rules but carries the specific connotation in legal term. Consent has been defined in Section 13 of the Contract Act, 1872 as two or more persons are said to be in consent when they agree upon the same thing in the same sense. The Law Lexicon by P Ramanatha Aiyar further explains the term (Downloaded on 15/01/2022 at 08:45:32 PM) (10 of 14) [SAW-683/2021] 'consent' as an act of reason, accompanied with deliberation, the mind weighing as in a balance the good and evil on each side. The Law Lexicon by Sumeet Malik defines the term 'consent' as an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. The legislature has thus used the term 'consent' which has a specific legal connotation. Such consent cannot be tacit or through non-resistance. It must be expressed in specific term and through conscious decision making process.
While effecting inter-district transfers of transferred employees, the powers are retained by the department concerned but in all such cases the consent of the Panchayati Raj department has to be obtained. This has dual purpose. The cadre controlling and the powers of posting an employee across the district in the State would be retained with the parent department of the employee but at the same time since such an employee has been placed at the disposal of Panchayati Raj institution, the Panchayati Raj department would be in ideal position to concur or object to any such inter-district transfer. Such requirement of consent cannot be brought down to a mere formality by suggesting that the same is not mandatory but directory in nature. We are conscious of the decisions of the Supreme Court which suggests that one of the indicators of legal requirement being mandatory or directory is whether non-adherence to such requirement leads to any adverse penal consequences or not. However, this is not the (Downloaded on 15/01/2022 at 08:45:32 PM) (11 of 14) [SAW-683/2021] only indicator nor the only means to interpret the statutory provision either as mandatory or directory. In the present case, treating such provision as directory, would completely neutralize the Rule of the Panchayati Raj department, in the context of transfer and posting of the Government employees who are posted at the disposal of the Panchayati Raj institution for carrying out the transfer activities. The consent of the Panchayati Raj department, in our opinion, is therefore necessary before transferring any such employee from one district to another. Neither recourse to Rule 13 of the Rules of 2011 nor the order dated 16.06.2018 passed by the Panchayati Raj department would save the position. Rule 13 merely provides that in case of doubt in relation to interpretation or scope of the Rules, the decision of the Panchayati Raj department would be final. Firstly, we do not find the Panchayati Raj department has interpreted this provision. Secondly, such finality would not bind the Court when in exercise of writ jurisdiction it examines the legality of the Government action and in the context interpreting the Rule position. The order dated 16.06.2018 merely records that in view of the permission granted by the Government under order dated 12.03.2018, the consent of the Panchayati Raj department before transferring employee would not be necessary. Firstly, the order dated 12.03.2018 of the Government has not been produced before us despite our earlier request and time being granted. Secondly, this appears to be the order permitting transfer of the employees during a certain period. The Panchayati Raj department cannot abdicate its powers by providing that during such period transfer of transferred employees can be done dehors the statutory requirement.
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(12 of 14) [SAW-683/2021] However, this would not complete the full story. We have noticed that this has brought about a grim situation. The administration is saddled with two employees against one vacant post in some cases and in some cases the posts are vacant without anybody looking after it. Even if the situation has been brought about on account of administrative errors, we would like to find a way out of this impasse particularly looking to the great challenges that the Government administration in general and the Health department in particular is facing due to the recent third wave of Coronavirus. Even otherwise it is not in interest of the administration of public health that large number of posts are unoccupied whereas some places have excess incumbents.
In this context, we do not find any limitation or inhibition under the Rules by virtue of which the ex-post facto consent of the Panchayati Raj department can not be obtained. The consent of the Panchayati Raj department is of course needed before effecting inter-district transfer as we have already concluded. However, there is nothing in the Rules to suggest that the same is a sine qua non and if the consent is obtained post facto, the order of transfer cannot be validated. We notice that in the judgment dated 11.10.2018 passed by the Division Bench of this Court in the case of State of Rajasthan and others Vs. Samleta (D.B. Spl. Appl. Writ No. 736/2018), the Court had confirmed the judgment of the learned Single Judge setting aside orders of transfers under similar circumstances where the consent of the Panchayati Raj department was not obtained. In that case, the counsel for the employees-original petitioners had argued that the ex-post facto sanction granted by the Panchayati Raj department would not save the order of transfer. The Division Bench while (Downloaded on 15/01/2022 at 08:45:32 PM) (13 of 14) [SAW-683/2021] confirming the view of the learned Single Judge had not given any declaration on this question. The judgment on this point is thus sub silentio and in our view does not lay down any ratio of a binding nature on this question. Under the circumstances, we reiterate that the Rules of 2011 do not prohibit ex-post facto sanction being granted by the Panchayati Raj department and if such ex-post facto sanction is obtained hereafter, it would be open for the Government to regularize all orders of inter district transfers.
In the result both the appeals are disposed of in the following manner:
In so far as the case of Mool Shanker is concerned, in our view, the order of transfer could not have been passed by the Health department since, essentially the power vests with the District Establishment Committee of the Zila Parishad concerned to order transfers. The judgment of the learned Single Judge is therefore confirmed. However, nothing stated in the judgment of the learned Single Judge or by us in this judgment would prevent the District Establishment Committee concerned from ordering transfers in consultation with the Health department.
So far as the case of Krishna Devi is concerned, this is the case of inter-district transfer. Her transfer has been made without the consent of the Panchayati Raj department which the learned Single Judge has rightly not approved. However, as observed above, in her case and all other similar cases, nothing stated in the judgment of the learned Single Judge or in this judgment would prevent the authorities from obtaining the ex-post facto consent of the Panchayati Raj department. If so done, the same would be seen as validation of the original order of transfer. It (Downloaded on 15/01/2022 at 08:45:32 PM) (14 of 14) [SAW-683/2021] would not be necessary for the Health department to issue fresh orders of transfers for such purpose.
Both the appeals are disposed of accordingly.
(REKHA BORANA),J (AKIL KURESHI),CJ
110s,111s-jayesh/-
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