Mohan Ram Nehara vs State and Others

Dinesh Maheshwari, J.—By way of this writ petition, the petitioner, working on the post of Gram Sevak, seeks to question the order dated 13.07.2007 (Annex.6) issued by the State Government in its Panchayati Raj Department whereby he has been transferred from Panchayat Samiti, Ladnu to Panchayat Samiti, Rewdar (Sirohi); and the order dated 19.07.2007 (Annex.9) passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur dismissing his appeal (No. 974/2007) against the said transfer order.

The petitioner has averred in the writ petition that he was initially appointed on 21.03.1997 on the post of Gram Sevak; that by the order dated 26.06.2006 (Annex.1) he was transferred to Gram Panchayat, Silnavad and then, by the order dated 11.05.2007 (Annex.2) he was directed to report at Sub-Division Office, Ladnu; that thereafter he was transferred to Gram Panchayat, Balsamand by the order dated 30.06.2007 (Annex.3). The petitioner has raised the grievance that by the order dated 12.07.2007 he was transferred from Panchayat Samiti, Ladnu to Panchayat Samiti, Dhorimanna (Barmer) and has taken the averments that the petitioner was not working at Panchayat Samiti, Ladnu but was working at Gram Panchayat, Balsamand; and the order was issued without any administrative exigency. The petitioner has further averred that the order was passed in complete non-application of mind regarding his place of posting. The petitioner has further stated that the very next day, i.e. 13.07.2007, another list came to be issued and surprisingly he was shown transferred from Panchayat Samiti, Ladnu to Revdar (Sirohi) without assigning any reason.

The petitioner has referred to the circular dated 24.02.2007 (Annex.7) issued by the State Government requiring that ordinarily the Gram Sevak will not be transferred outside the District and it was only in the special circumstances that such transfers could be made subject to prior permission of the higher officials; and that it was not clarified that what seniority was assigned to the petitioner in absence whereof it seems that the seniority of the petitioner is not kept intact by the respondents. The petitioner has pointed out that he filed an appeal against the said transfer order before the Rajasthan Civil Services Appellate Tribunal, Jaipur that has been dismissed by the Tribunal on 19.07.2007 according to the petitioner, without assigning proper reasons and without addressing to the issues arising in the matter.

The petitioner has further averred that after dismissal of the appeal, he came to know that not only the transfer was made without any administrative exigency but at the same was made mala fide inasmuch as one Devaram Patel, President, Bhartiya Janta Party, Gramin Mandal, Ladanu and other party members forwarded a desire whereby it was requested that the petitioner may be transferred outside the District for his activities that were not suitable to the ruling party.

Seeking to assail the orders aforesaid, learned Counsel for the petitioner has referred to Rules 289, 290 and 291 of the Panchayati Raj Rules, 1996 and while strongly relying upon the requirements of a circular dated 24.02.2007 (Annex.7) submitted that normally an employee like the petitioner is not to be transferred out of the District; that there is no such administrative exigency spelt out for which the petitioner is required to be transferred to a far distant place; that the transfer order has been passed without obtaining prior sanction of the higher officials; and that seniority of the petitioner is likely to be affected for his transfer outside the District when nothing has been stated about protection of his seniority. Learned Counsel has also contended that the petitioner has been subjected to frequent transfers and has referred to the four transfer orders made in his relation one after another. Learned Counsel also contended that the impugned order of transfer has been issued with total non-application of mind inasmuch as the authority concerned was not aware as to where the petitioner was posted at; and the place of the posting of the petitioner has wrongly been mentioned as Panchayat Samiti, Ladnu in the impugned order dated 13.07.2007. Learned Counsel further contended that the transfer of the petitioner has been ordered under political influence and suffers from mala fide and that he has old handicapped mother and the transfer will cause serious inconvenience to the family. According to the learned Counsel, the Tribunal has not considered the facts of the case in their proper perspective nor has applied the law applicable to the case and, for the reasons and on the grounds aforesaid, the impugned orders deserve to be quashed.

Having given a thoughtful consideration to the submissions made by the learned Counsel for the petitioner and having examined the matter in its totality, this Court is clearly of opinion that the present petition for writ is bereft of substance and does not merit admission.

In the first place it is noticed that the petition is founded on incorrect presentation of facts particularly in relation to the postings of the petitioner. The submission that the authority transferring the petitioner was not aware of his place of posting, are not correct to the extent that the petitioner was in fact working at Panchayat Samiti, Ladnu and from the said Panchayat Samiti only he has been transferred. The earlier orders dated 26.06.2006, 11.05.2007 and 30.06.2007 were not issued by the Government but by the said Panchayat Samiti only; and the averments in their relation do not make out any such case of frequent transfers that might be relevant in relation to the impugned order dated 13.07.2007.

It is of course true that the impugned order of transfer dated 13.07.2007 has been issued immediately the day next after passing of the order dated 12.07.2007 but then, there is nothing on record to find if the order dated 12.07.2007 was ever implemented and given effect to qua the petitioner?

Reference to the circular Annexure-7 and Rules 289, 290 and 291 of the Panchayati Raj Rules, 1996 does not make out any case that the transfer order suffers from violation of any statutory requirement. Rules 289, 290 and 291 of the Rules of 1996 read as under:

Rule 289. Transfer within the district.-(1) The name of the employee desiring transfer or desired to be transferred within the district shall be communicated to the district Establishment Committee by the Panchayat Samiti.

(2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or Zila Parishad concerned on the recommendation of the district Establishment Committee.

(3) State Government may issue orders regarding transfers from time to time. In case District Establishment Committee/Standing Committee of Panchayat Samiti does not agree, Chief Executive Officer/Vikas Adhikari as the case may be, shall carry out orders of the State Government.

(4) On transfer of the employee, his confidential roll and service record will be transmitted, without avoidable delay, to the Panchayat Samiti/Zila Parishad to whom his services have been transferred.

Rule 290. Transfer outside the district.- (1) The name of the employee desiring transfer or desired to be transferred from one district to another shall be communicated to the Director by the Panchayat Samiti or the Zila Parishad, as the case may be.

(2) Posting by transfer of such an employee shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the State Government against the vacant posts existing at such time. The State Government may transfer any member of service from one Panchayat Samiti to another Panchayat Samiti within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from Panchayat Samiti to Zila Parishad or from a Zila Parishad to Panchayat Samiti and may also stay the operation of, cancel, any order of transfer made under these rules. Chief Executive Officer or Vikas Adhikari concerned shall carry out such orders.

(3) On transfer of an employee, his confidential roll and service record will be transmitted without avoidable delay to the Panchayat Samiti/Zila Parishad to whom his services have been transferred.

Rule 291. Seniority on transfer.- Seniority of an employee transferred outside the district, by the State Government under Sub-section (8-A) of Section 89 shall be determined by the Committee of the District to which he is transferred:

(i) if the transfer is made on the request of the employee, his seniority shall be fixed at the bottom of the seniority list of the cadre to which he belongs; and

(ii) if the transfer is made on administrative or other reasons, his seniority shall be fixed on the basis of his continuous length of substantive service on an analogous post.

(underlining supplied for emphasis)

Sub-section (8-A) of the Rajasthan Panchayati Raj Act, 1994 reads as under:

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 Panchayat Samiti to Zila Parishad or from a Zila Parishad to a Panchayat Samiti and may also stay the operation of, cancel, any order of transfer made under Sub-section (8), or the rules thereunder:

A bare look at the Rules aforesaid and the source of wide powers of State Government that is, Sub-section (8-A) of Section 89 of the Panchayati Raj Act, 1994 makes it clear that it is within the competence of the State Government to transfer an incumbent like the petitioner from one Panchayat Samiti to another Panchayat Samiti within the same District or outside the District. The transfer order relating to the petitioner does not suffer from any want of authority nor has been issued in violation of any statutory condition or requirement. There does not appear any requirement for the Government to state and specify the administrative reason wherefor the order of transfer has been issued. Further, the transfer order in relation to the petitioner having been issued by the State Government on administrative reasons, the operation of Rule 291 is clear on maintaining his seniority on the basis of continuous length of substantive service; and a feeble suggestion on the seniority being affected is neither correct nor makes out any case of any prejudice having been caused to the petitioner in his service conditions.

So far the policy suggested by way of the circular dated 24.02.2007 (Annex.7) is concerned, the same remains a matter to be considered by the competent authority while effecting a transfer; and the petitioner is not invested with any right to question the transfer order on its basis. The order dated 24.02.2007 is nothing but a proposition that ordinarily the Gram Sevak will not be transferred outside the District but in special circumstances, the competent authority could do so with the permission of the higher officials. It is noticed that the impugned order dated 13.07.2007 has been issued by none other than the Deputy Secretary to the Government in its Panchayati Raj Department.

So far the suggestion about political influence is concerned, the petitioner has of course placed on record a photostat of the letter dated 06.07.2007 (Annex.10) said to have been written by the Chairperson of Bhartiya Janta Party, Gramin Mandal, Ladnu suggesting to the M.L.A. of Ladnu for transferring the petitioner but there is no material on record to find if such suggestion was available with the authority concerned while making the transfer order and further, there is nothing on record to conclude that the authority concerned has passed the order at all influenced by such proposition. Mere suggestion about some representation having been made against the petitioner does not by itself lead to the conclusion that the transfer has been effected for any extraneous reason or consideration.

So far the personal difficulties of the petitioner are concerned, the Tribunal has rightly observed that it was for the petitioner to have made a proper representation to the authorities concerned but the transfer order cannot be said to be illegal or unjustified on the grounds suggested by the petitioner.

Having examined the material placed on record and the submissions made on behalf of the petitioner, this Court is clearly of opinion that there is no cause or justification to interfere with the impugned orders in extraordinary writ jurisdiction of this Court.

The writ petition fails and is, therefore, rejected.