Rajesh Kumar Parihar vs State Of Rajasthan And Ors

This writ petition filed by the petitioner is directed against the order dated 4/2/2019 (Annex.1) passed by Vikas Adhikari, Panchayat Samiti, Shergarh (Jodhpur), whereby, the petitioner, who was posted as Gram Vikas Adhikari at Somesar has been placed Awaiting Posting Order ('APO').

It is inter alia indicated in the writ petition that the petitioner has been replaced by one Ram Kishore Meena - respondent no.4, who despite being on probation has been posted in place of the petitioner, which clearly indicates that the petitioner has been placed APO only to accommodate said Ram Kishore Meena.

Further submissions have been made that the transfer of the petitioner is contrary to Rule 289 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules, 1996'), which requires recommendation of the Administration and Establishment Committee of the Zila Parishad concerned, which recommendation has admittedly not been made and the Vikas Adhikari on his own has passed the order of transfer, which is illegal.

Further submission has been made that placing the petitioner APO is contrary to the Government decision under Rule 25A of the Rajasthan Service Rules ('RSR') and on that count also the order impugned deserves to be quashed and set aside.

During the course of submissions, though the issue was not raised in the writ petition, an additional submission was made that even as per Rule 334 of the Rules of 1996, Vikas Adhikari can only transfer any member of the service after approval of the Standing Committee Administration, which approval has not been taken and on that count also the order impugned is illegal and deserves to be set aside.

Reliance has been placed on Vijay Prakash Sharma vs. Administration and Establishment Standing Committee & Ors. : 2012 (3) WLN 379.

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

The issue raised regarding transfer of respondent no.4, who is claimed to be on probation, in place of petitioner being illegal has been noticed only to be rejected. Though transfer of an employee during period of probation is not desirable, as there is no prohibition under any provision, whereby, a probationer cannot be transferred based on administrative exigency the transfer of an employee on probation can always be made.

The provisions of Rule 289 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 Administration and Establishment Committee of Zila Parishad concerned 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 Administration and Establishment committee of Zila Parishad concerned.

(3) State Government may issue orders regarding transfers from time to time. In case Administration and Establishment Committee of Zila Parishad concerned/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."

(emphasis supplied)

The above Rule deals with a case where the transfer is made within the district. The purpose and purport of the said Rule is to deal with a situation where a person is required to be transferred from one Panchayat Samiti to another Panchayat Samiti within the same district and the said Rule has no application insofar as the transfer within the same Panchayat Samiti is concerned.

The above aspect is clearly reflected from the fact that the requirement/desire for transfer is to be communicated to the Administration and Establishment Committee of the Zila Parishad concerned and on its recommendation the posting by transfer can be made. The very fact that sub-rule (4) of Rule 289 requires transmission of confidential roll and service record to the Panchayat Samiti/Zila Parishad to whom the services are transferred necessarily implies that the transfer has to take place from one Panchayat Samiti to another Panchayat Samiti, as in case of transfer of present nature within the same Panchayat Samiti there is no question of transmission of record to another Panchayat Samiti/Zila Parishad and as such the said provision of Rule 289 of the Rules, 1996 insofar as the transfer within the same Panchayat Samiti is concerned has no application.

Rule 334 of the Rules, 1996, insofar as relevant, reads as under:

"Rule 334. Other powers and duties of Vikas Adhikari.- In addition to the duties of Vikas Adhikari as laid down in Sec.81 of the Act, he shall also exercise powers and perform duties as under-

(1) ......

(2) .....

(3) Transfer any member of the service within the area of the Panchayat Samiti after 2 years or before two years with approval of the Standing Committee Administration."

(emphasis supplied)

The above Rule deals with the powers of Vikas Adhikari which includes power to transfer any member of service within the area of Panchayat Samiti after two years and in case transfer is made before two years, he is required to take approval of the Standing Committee Administration.

It is not in dispute that the petitioner was working at Somesar for more than two years.

Learned counsel for the petitioner attempted to make submission that the approval of the Standing Committee Administration in terms of Rule 334 (3) is required in all cases irrespective of the time spent at a particular place, which has no basis inasmuch as a plain reading of the Rule reveals that distinction has been made with regard to transfer after two years or before two years, which necessarily means that the provision regarding approval only is required in case transfer has been made before two years, else a simple provision regarding transfer of any member of service within the area of Panchayat Samiti with approval of the Standing Committee Administration would have been made. As such, under the provisions of Rule 334, the Vikas Adhikari, who has passed the impugned order is well within his powers to transfer within the area of the Panchayat Samiti and, therefore, the order impugned cannot be questioned on the said count as well.

So far as the judgment in the case of Vijay Prakash Sharma (supra), relied on by learned counsel for the petitioner, is concerned, from the facts of the said case it is not apparent as to whether the petitioner therein was transferred within two years or after two years and on the other hand the plea raised in the said matter was that the transfer could have been made only under Rule 334 of the Rules, 1996 by the Vikas Adhikari and, therefore, said judgment has no application to the facts of the present case.

Coming to the alleged violation of instructions issued by the State Government under Rule 25A of the RSR, the mere fact that the petitioner has been placed APO is not sufficient to claim such violation within a period of 15 days of such order.

In view of the above discussion, it is apparent that for effecting transfer within the same Panchayat Samiti approval of the Administration and Establishment Committee of Zila Parishad is not required under Rule 289 of the Rules of 1996 and under Rule 334 of the Rules, 1996 a Vikas Adhikari can order for transfer within the area of Panchayat Samiti after two years without the approval of the Standing Committee Administration.

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