Rameshwar Lal Saini vs State of Rajasthan and Others

S.N. Bhargava, Member

These writ petitions have been filed by the Patwaris who have been transferred from one District to another District by order dated 6-8-1988. The writ petitions were admitted and notices were issued to the opposite parties and operation of the tmpugned transfer order dated 6-8-1988 was stayed. Notices were served. The writ petitions came up for confirmation of stay order on 14-9-1988 when time was sought and one month''s time was granted to file the reply. The cases again came up for confirmation of stay order on 26th October, 1988 but the reply had not been filed till then and three week''s time was further granted to file the reply. The petitions again came up for orders on 10-11-1988. Mr. K.N. Shrimal, Additional Government Advocate prayed for further time to file the reply but we did not think it necessary or proper to grant further time to file reply. These cases have again came up today i.e. on 21-11-1986 but the reply has not been, filed so far. Arguments were heard in part on 18-11-1988 and arguments were concluded on 21-11-1988 and order was reserved.

Learned Counsel for the petitioner (D.B. Civil Writ Petition No. 2878/1988) has very vehemently argued the case and has brought to our notice Rule 4 of the Rajasthan Land Revenue (Land Records) Rules, 1937, here in after teferred to as the ''Rules of 1957'' which provides that a Patwari shall be appointed to each circle and that appointment of Patwari shall be made by the Collector and that their seniority is to be reckened district-wise.

Our attention has further been drawn to Rule 9 of the Rules of 1957 which provides that the Collector may transfer a Patwari from one circle or Tehsil to another in his own district but no transfers of a Patwari from one district to another shall be made without the sanction of the Member, Land Records, Board of Revenue. Transfers from one division to another will be sanctioned by the Board of Revenue. It has further been specified in Sub-clause (2) of Rule 9 of the Rules of 1957 that a transfer of Patwari should not be made unless the officer transferring has satisfied himself that such transfers are necessary in the interest of efficient working or to fill up vacancy created by a long leave, resignation, dismissal, suspension or transfer of Patwari. It further provides that unsatisfactory work or conduct of a Patwari should not be a ground for transfer but for penalcotion.

Learned Counsel for the petitioners has drawn our attention to Rule 412 which provides that the Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are ordinarily undesirable and should on no account be made to suit the convenience of individuals. They can only be made under the conditions given in para 9 and those conditions should be stricaty observed. Transfer by way of punishment are not contemplated by law.

He has further submitted that no sanction or permission was obtained from the Member, Land Records, Board of Revenue before passing the impugned order nor such transfer was necessary in the interest of officiency of work or to fill up vacancy as envisaged in Rule 9.

He has also drawn our attention to various circulars No. R.B /L.R./B 3/P-10/82/262-88 dated 10-1-1985, No. F. 7(22) Raj/Cr. 1/83 dated 9-2-1984 and No. R.B./L.B./R. 3/F-10/82/5664-90 dt. 9-8-1984 issued by the Board of Revenue in connection with transfer of Patwaris wherein it has been impressed upon the Collectors that transfer of Patwaris should be strictly made in accordance with the Rules, within their district and if they want to transfer in other district, they should seek prior sanction from the Board of Revenue.

Learned Counsel for the petitioners has placed reliances on Ramnik Choudhary v. State of Bihar 1975)(2) SLR 67 where in a learned Single Judge of the Patna High Court after discussing several cases, has observed that transfer to accomodate a particular official and an order passed for a coleter&l purpose in the garb of a legal purpose, amounts to colourable exercise of power and therefore, the transfer order can be quashed in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India.

He has also placed reliance on P. Pushpakafan v. The Chairman, Coir Board, Cochin and Anr. 1979(1) SLR 309 wherein a learned Single Judge of Kerala High Court (Justice V. Khalid, an he then was), quashed the transfer order since the same was malafide and was passed merely as a punishment then administrative exengencies.

Our attention was also drawn to State of MP. v. Shankar Lal and Ors. 1980 (1) SLR 461 wherein the Supreme Court has observed that the power of transfer of employees getting small enoluments should be exercised very sparingly as it is likely to create tremondous problems and difficulties in the way of law paid employees.

Reliance has also been placed on Baldev Ram and Ors. v. State of Rajasthan and Ors. 1981(3) SLR 154 wherein this Court quashed the order of transfer of Class-Ill employees from one district to another district as the seniority of Class-Ill employees was maintained revenue district-wise. There being no State-wise seniority list and promotions also being made on the basis of district-wise seniority, the emplyees should not be transferred from one District to another district.

Learned Counsel for the petitioners has also placed reliance on Krishna Kumar Shtivastava v. Bihar State Agricultural Marketing Board, Patna and Ors. 1983(2) SLR 221 wherein Patna High Coutt cancelled the transfer order as the petitioner in that case was transferred outside his cadre.

Learned Counsel for the petitioners has put main reliance on a decision of this Court in Asu Singh v. State of Rajasthan 1983 (3) SLR 783, where in a learned Single Judge after considering the case law at length, had observed that the courts should ordinarily feel relunctant to interfere with the order of transfer because it is the Government who has to run the administrative machinery. If a particular act of the Government is done in normal course, be it dis-advantageous to some and advantageous to others, the Courts interference would be undesirable. How ever, if there are elements of malafides or there is violation of any rule or administrative order, in that regard, Courts should not snick from scrutinising the matter and interferring with the impugned order. Executive instructions laying down the guidelines for the transfers are meant to be followed and it is not open for the State Government to pass orders against its own instructions or policy. It has further been observed in that case that the burdan to prove malafides lies on the petitioner who alleges the same, and that a transfer order only to accomodants another person is liable to be quashed.

Lastly, he has drawn out attention to B. Varadha Rao Vs. State of Karnataka and Others, wherein their lordships of the Supreme Court have observed that transfer is an incident of service and the order of transfer not resulting in alternation of any condition of service to his disadvantage, is not appeolable to the State Government it has further been observed that the Government servant is liable to be transfered to a similar post in the same cadre, is a normal feature and on incident of government service and no government servant can claim to remain in a particular place or in a particular place or in a particular post unless of course big appointment itself is to a specified, non-transferable post, Their Lordships further observed that if the power of transfer is abused, the exercise of power is vitiated. An order of transfer which is not made in public interest but for delateral purposes and with oblique motive is vitiated by abuse of powers. Their Lordships had noticed the judgment of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra (1985) Lab. IC. 73 wherein the Bombay High Court relying on the observations of the Supreme Court in E.P. Royappa Vs. State of Tamil Nadu and Another, , observed that it was no doubt true that the Government has power to transfer its employees employed in transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then, obviously, the order of transfer is liable to be struck down.

Keeping in mind the various contentions raised by the learned Counsel for the petitioner, mentioned above, we are of the opinion that the transfer order of the petitioners from one district to another district being in violation of the instructions issued by the Board of Revenue in 1983 and 1984 coupled with the fact that seniority of Patwaris in maintained district-wise, and the same having been done without the prior sanction of the Board of Revenue as required by the Instructions and the Rules, deserve to be quashed.

In the result, these writ petitions are allowed, the impugned transfer order dated 6-8-1988 is hereby quashed but looking to the facts and circumstances of the case, parties are left to bear their own costs.