Rajasthan High Court - Jaipur
Smt Anita Middha vs Raj Civil Service Appe Tribu&Ors on 12 October, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1. SB Civil Writ Petition No.3539/2011 Smt Anita Middha Versus Rajasthan Civil Services Appellate Tribunal, Jaipur & ors 2. SB Civil Writ Petition No. 16387/2010 Smt Mamta Sidana Vs Rajasthan Civil Services Appellate Tribunal, Jaipur & ors 3. SB Civil Writ Petition No. 15745/2010 A One Versus District Elementary Education Officer, Jaipur & ors Date of Order : 12th October, 2011. PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr HP Singh Mr Anil Upman Mr Ashok Bansal - for petitioners Mr Ganesh Meena, Government Counsel Ms Priyanka Pareek, Dy GC Mr Ajay Raj Tantia for respondents BY THE COURT:
REPORTABLE Since on same of facts, similar relief has been claimed, all these writ petitions have been heard together and decided by this common order.
By these writ petitions a challenge to the order of transfer has been made by the petitioners.
Learned counsel for petitioners submit that petitioners were appointed on the post of Teacher Gr III. They have been transferred now from one Panchayat Samiti to another Panchayat Samiti in violation of section 89 (8) (ii) of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994'). As per aforesaid provision, transfer can be made after consultation with the Pradhans or Pramukhs, as the came may be, of the Panchayat Samitis or Zila Parishads from and to which such transfer is proposed to be made. In the present matter, though transfer is from one Panchayat Samiti to another but Pradhans of the Panchayat Samitis have not been consulted before passing of the orders of transfer. Looking to the aforesaid, impugned orders of transfer deserve to be quashed on this ground alone.
Learned counsel for petitioners further submit that petitioners having been appointed under Panchayat Samiti cannot be transferred by an order of transfer issued by an officer of the Education Department. In the present matter, District Elementary Education Officer (for short 'the DEEO') has passed the order ignoring the aforesaid and, otherwise, he cannot be considered to have an authority to exercise power of the State Government to effect transfer order if at all section 89(8A) of the Act of 1994 is relied upon by the respondents. On the aforesaid ground also, impugned orders of transfer deserve to be set aside. This is more so when the Rajasthan Civil Services Appellate Tribunal, Jaipur (for short 'the Tribunal') ignored relevant legal issue raised therein while dismissing the appeals of the petitioners.
Learned counsel for petitioners have given reference of the judgment in the case of Mohan Lal Gurjar Versus State of Rajasthan & ors, reported in 2011 WLC (Rajasthan) UC 197 to show that transfer from one Panchayat Samiti to another has been held to be illegal finding it to be without consultation.
Learned Government Counsel Mr Ganesh Meena, on the other hand, submits that impugned orders of transfer have been passed by the DEEO under the provisions of section 89(8A) of the Act of 1994 read with section 84 (10) of the Act of 1994. Under sub-section 8A of section 89, the State Government is given power to transfer any member of service from one Panchayat Samiti to another Panchayat Samiti within district or even out side the district. This is apart from the transfer from one Zila Parishad to another Zila Parishad. Aforesaid power has been given to the government notwithstanding what is contained in sub-section 8 of section 89 of the Act of 1994. The State Government is thus competent to issue orders of transfer. Under section 84 (10) of the Act, the DEEO has been made officer in-charge of elementary education for Zila Parishad and to exercise such of the powers and perform such other functions as are conferred upon or assigned to him by the government. The State Government, vide its order dated 22.7.2010 authorised the DEEO for transfer of teachers. In view of aforesaid, the DEEO is competent to effect the order of transfer.
The issue in regard to transfer from one place to another within the Panchayat Samiti is under the competence of the DEEO as has been decided in the case of Shashikala Tripathi & anr Versus The State of Rajasthan & ors, SB Civil Writ Petition No. 6691/2010, decided on 26.8.2010 at Principal Seat, Jodhpur.
I have considered rival submissions of learned counsel for parties and perused record of the case carefully.
The issue for my consideration is as to whether section 89 (8) (ii) of the Act of 1994 comes in the way to issue order of transfer without consultation of two Pradhans of respective Panchayat Samitis in case of transfer from one Panchayat Samiti to another Panchayat Samiti and Zila Pramukhs in case of transfer from one Zila Parishad to another. For the aforesaid, it would be gainful to refer section 89 of the Act of 1994 which is quoted thus -
89. Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service : (1) There shall be constituted for the State 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.
(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 Accounts).
(3) The State Government may encadered 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 made-
(a) by direct recruitment; or
(b) by promotion; or (c ) by transfer.
(6) Appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad , as the case may, 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.
(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.
(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) to (11) ...
Perusal of the provision quoted above reveals that section 89 of the Act of 1994 provides for constitution of Rajasthan Panchayat Samiti and Zila Parishad Service. Sub-section (8) provides for appointment and transfer. Sub-section (8A), however, gives power to the State Government to transfer any member of service from one Panchayat Samiti to another and from one Zila Parishad to another, from one Panchayat Samiti to a Zila Parishad or from one Zila Parishad to Panchayat Samiti notwithstanding anything contained in sub-section (8).
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.
Aforesaid issue came up for consideration before this court in the case of Bhagwan Das Mittal & 207 ors Versus State of Rajasthan & ors, reported in 2007(2) WLC (Rajasthan) 775. Paras 11 to 14 of the said judgment are quoted thus -
11. Section 89 has been enacted to create and regulate a service. Sub Section 8 deals with appointments against the posts of the service. Sub Section 5 deals with mode of appointment. Sub Section 6 deals with direct appointment and Sub Section 7 is procedural whereas Sub Section 8 (i) deals with appointment by promotion and Sub Section 8(ii) appointment by transfer in consultation with Pradhans or the Pramukhs of one Panchayat Samiti or Zila Parishad to another as the case may be. It has nothing to do with the transfer of an employee. The provision for transfer of the employees is contained in Sub Section 8A of the Act of 1994 which reads as under:
(8)(A)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:
12.By virtue of Sub Section 8A of Section 89 of the Act of 1994, the State Government has been vested with power to transfer any member of the service or Panchayat Samiti to any other Panchayat Samiti or the same district or outside it. This provision of law further transpires that the Government can also stay of, or cancel, any order of/ transfer/ which means order of appointment by transfer.
13. There is glaring anomaly in the Rules. When sub section 8 is read with sub section 8A appointment by promotion and appointment by transfer which are recognized mode of appointment to service, in the Rules, no power has been specifically and expressly vested with the appointing authority to transfer an employee in terms of section 89. Sub Section 8A only deals with the transfers. There is no substance in the plea of the leaned counsel for the petitioners that Section 89(8)(ii) deals with transfers. Sub section 8 contains opening word Appointment by--. Two separate modes of appointment have been suggested by means of sub section 8(i) and Sub section 8(ii). It does not deal with simplicitor transfer. It deals with appointment by transfer after consultation with the Pradhans or the Pramukhs, as the case may, of the Panchayat Simitis or the Zila Parishads. However, Sub Section 8A which opens with the words Notwithstanding anything contained in subsection( 8)..........
14. Thus, the State Government has power to transfer an employee from Simiti to another Panchayat Simiti from Zila Parishad to Panchayat Simiti and by vice versa. No power to any authority of the State has been vested for transferring by an employee under Sub Section 89(8)(ii). The impugned orders have been issued by the Government and the Government has absolute power to make such transfers in exercise of power contained in section 89(8A).
Perusal of above quoted paras show that the government is having power to transfer an employee from one Panchayat Samiti to another Panchayat Samiti. The argument raised by learned counsel for petitioners has already been answered in the paras quoted above. In view of the above, first issue needs no further discussion. This is more so when rules made under the Act of 1994 cannot circumvent or nullify the provisions of the Act.
I have gone through the judgment in the case of Mohanlal Gurjar (supra) as has been cited by learned counsel for petitioners and find that there the order of transfer was effected by the Chief Executive Officer, Zila Parishad, Karauli and not by the DEEO. As and when the orders of transfer are effected at the level of Pradhan or Zila Pramukh, provision of section 89(8) has to be taken note of and, accordingly, aforesaid judgment was rendered. Since in the present matters, orders of transfer have not been issued by the Chief Executive Officer of the Zila Parishad but have been issued by the DEEO, the judgment in the case of Mohanlal Gurjar (supra) has no application in the present matter.
In the light of the discussion made above, it is held that the State Government is having power to effect transfers falling with the purview of sub-section (8A) of section 89 of the Act of 1994 notwithstanding what is contained in sub-section 8 of section 89 of the same Act.
The issue now comes is as to whether the District Elementary Education Officer is having power to issue order of transfer, which power otherwise vests in the State Government in view of conclusion made above showing authority of the State Government to effect transfer. On the aforesaid question, reference of section 84 (10) of the Act of 1994 is relevant thus quoted hereunder for ready reference -
84. Powers and functions of the Chief Executive Officer and other officers:
(1) to (9)...
(10) The District Elementary Education Officer shall act as officer incharge of elementary education for Zila Parishad and exercise such other powers and perform such other functions as are conferred upon, or assigned to him, by the State Government.
Perusal of provision quoted above shows that the DEEO shall act as officer incharge of elementary education for Zila Parishad and to exercise such powers and perform functions as are conferred upon by the State Government. In the light of the provision aforesaid, delegation of power by the State Government can vest in the DEEO, who is otherwise reckoned to be officer incharge of elementary education under Zila Parishad.
Learned counsel for respondents submitted that such powers were conferred on the DEEO vide order dated 22.7.2010. The aforesaid is even coming out from bare perusal of para 9 of the reply in CWP No. 15745/2010. For the aforesaid purpose, even judgment of this court in the case of Jagmala Ram Versus State of Rajasthan, reported in 2004 WLC (Rajasthan) UC 483 is relevant. Para 5 of the said judgment is quoted hereunder for ready reference -
5. It has also been pleaded that the provisions of section 84 have been added introducing sub-section (10), and the State Government, exercising those powers, has issued a circular, AnnexureR/1, being dated 28.1.01, according to which, the State Government has delegated the powers of Elementary Education in rural areas to the District Elementary Education Officer to act as per provisions of law, or as directed by the State Government, and therefore, the State Government has delegated the powers of officer-in-charge to follow the directions issued by the State Government. Hence, the District Elementary Education Officer is empowered for effecting inter district transfers when so directed by the State Government.
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.
It may, however, be noted that in the case of Jagmala Ram (supra) the order of transfer was set aside taking note of the fact that the order of transfer therein was issued at the instance of the Minister, Medical & Health Department & Department of Personnel and not by the Panchayati Raj Department thus it was held to be illegal. Learned counsel for parties failed to bring to the notice of the court therein the authority of the State Government under sub-section (8A) of section 89 of the Act of 1994. However, the judgment aforesaid is distinguishable even on facts. In the case of Shashikala Tripathi (supra) this court held that the DEEO is competent to effect order of transfer. In view of aforesaid, even second argument raised by learned counsel for petitioners questioning the authority of the DEEO to effect orders of transfer cannot be accepted.
Now comes the issue regarding transfer of a teacher of Panchayat Samiti by the DEEO said to be part of the Education Department.
It has already been clarified by learned counsel for respondents that elementary education has been made a part of the Panchayati Raj Department keeping in mind object of 73rd Amendment in the Constitution of India. More specifically the subject given under Schedule-XI. The aforesaid amendment in the Constitution was made to strengthen Panchayati Raj Institutions. The government took a decision to keep elementary education under Paychayati Raj Department and, accordingly, necessary orders were issued by the government as was otherwise quoted by this court in the case of Jagmala Ram (supra) and otherwise flowing from amendment in section 84 of the Act of 1994, where, sub-section (10) was inserted by the amending Act of 2000. The DEEO has been made officer incharge of elementary education for Zila Parishad thus even the last argument as raised by learned counsel for petitioners that the DEEO cannot be said to be officer under the Panchayati Raj Department, cannot be accepted.
In the light of discussion made above, I do not find any illegality in the orders of transfer in these cases. None of the arguments raised by learned counsel for petitioners can be accepted in view of the detailed reasons given above.
In the result, all the writ petitions so as the stay applications, being devoid of merit, are dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J