Aradhana Vyas @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition has been filed by the petitioner aggrieved against the order of transfer dated 25.06.2018 (Annex.3) passed by the Deputy Secretary,

Primary Education & Panchayati Raj Department whereby the petitioner has been transferred from Govt. Girls Upper Primary School, Meghwal

Basti, Raj Bagh, Panchayat Samiti Jodhpur to Govt. Primary School, Janiyon Ki Dhani, Panchayat Samiti Luni, District Jodhpur for administrative

reasons.

It is, inter-alia, submitted by learned counsel for the petitioner that the action of the respondents in transferring the petitioner is contrary to the

provisions of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (‘the Rules of 2011’) whereby for transferring an employee

from one panchayat samiti to another panchayat samiti within the same district, only the District Establishment Committee is entitled to order for

transfer under Rule 8 and therefore, the order impugned deserves to be quashed and set-aside.

Further submissions have been made that in place of petitioner, one Smt. Sarika Ojha, who is Teacher Grade-III (LevelII) has been posted whereas

the post being held by the petitioner is that of Level-I, which is also contrary to law, wherein a teacher of Level-II cannot be posted against the post of

Level-I. Another submission has been made that the order impugned is malafide, inasmuch as, only for the purpose of accommodating said Smt.

Sarika Ojha, the order has been passed for transfer of the petitioner.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

A bare perusal of the order impugned as noticed hereinbefore indicates that the order has been passed by the Deputy Secretary, Primary Education

and Panchayati Raj Department. Provisions of Section 89(8A) of the Rajasthan Panchayati Raj Act, 1994 (‘the Act’) reads as under :-

“89(8A). Notwithstanding anything contained in sub-sec. (8), the State Government may transfer any member of the service (from any place of

posting to any other place of posting whether within the same Panchayat Samiti or) 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 a 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-sec.

(8), or the rules made thereunder.â€​

Once the provisions of the Act by way of non-obstante provision confers the power on the State Government to transfer any member of the service

from any place of posting to any other place of posting irrespective of the Panchayat Samiti, Zila Parishad or District, reliance placed on the

provisions of the Rules of 2011 is wholly misplaced.

Submission was made by learned counsel for the petitioner that as the Rules of 2011 have been framed after the provisions of Section 89(8A) were

enacted, the Rules of 2011 would prevail. The said submission has been noticed only to be rejected, inasmuch as, the provisions of the Rules cannot

control/override the provisions of the main enactment.

So far as the submissions made by learned counsel for the petitioner regarding ineligibility of Smt. Sarika Ojha, the teacher who has been posted in

place of the petitioner is concerned, the said aspect by itself cannot vitiate the order of transfer of the petitioner. The petitioner has not challenged the

order of transfer of Smt. Sarika Ojha to the post of Teacher Grade-III (Level-I) and she has not been impleaded as party and therefore, even if the

submission made by the petitioner in regard to ineligibility of Smt. Ojha is accepted the same ipso facto cannot vitiate the order of her transfer.Â

Further submission regarding the malafide involved also, in absence of any implement in this regard, cannot be examined.Â

During course of submission it was fairly submitted by learned counsel for the petitioner that the petitioner has been working at the present place since

the year 2008 and in that view of the matter it cannot be said that there has been any victimization of the petitioner in ordering for her transfer.

In view of above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.