- (1.) THIS bunch of writ petitions, as per details given in the Schedule, are being disposed of by this common order.
(2.) BY these writ petitions, the only question raised before this Court is the jurisdiction of the Deputy Secretary of the Panchayati Raj Department ( Elementary Education), Govt. of Rajasthan, who passed the impugned transfer order dated 20/6/2010 transferring the petitioner-teachers from one place to another within the same Panchayat Samiti. Learned counsel for the petitioner submitted at the outset that the controversy in hand is squarely covered by the judgment of Coordinate Bench of this Court in the case of Ram Singh vs. State of Rajasthan & Ors. - 2008 (2) RLW 1750 decided on 18/2/2008, wherein, this Court has already held that the State Government acting through its Deputy Secretary does not have such power to transfer the teachers, members of the service, from one school to another school within the same Panchayat Samit since Section 89(8-A) of the Rajasthan Panchayati Raj Act, 1994 specifically omit such power of the State Government while giving power to transfer to the State Government of such members of service from one Panchayat Samiti to another Panchayat Samiti or from one Zila Parishad to another Zila Parishad. On the other hand, learned counsel Mr. R.L.Jangid for the State submitted that the State Government has overriding and non-obstante power to effect such transfers of the teachers even within the same Panchayat Samiti and even though such power is not specifically stipulated in Section 89(8-A) of the said Act, such power should be inferred in view of Rule 289 (3) and 336 (26) of the Rajasthan Panchayati Raj Rules, 1996. He further submitted relying upon the provisions contained in Section 9, 10, 11 & 13 of the said Act, 1994 that since in the different constituents of Panchayati Raj Institution, Gram Panchayat being at the lowest level, Panchayat Samit at one step higher and Zila Parishad being still higher, since the said powers are conferred for transfer of members of service including the teachers from one Panchayat Samiti to another Panchayat Samiti from one Zila Parishad to another Zila Parishad as per Section 89(8-A) of the Act upon the State Government and such overriding power has been given to the State Government, such power can be exercised by the Deputy Secretary of the State Government even for effecting such transfer within the same Panchayat Samiti from one school to another school. He further submitted that this contention has not been raised and decided in earlier judgment in Ram Singh's case (supra) and, therefore, the said decision is distinguishable or deserves to be reconsidered. Having heard the learned counsels, this Court is of the opinion that the issue raised in the present writ petitions is squarely covered by the aforesaid decision of the Coordinate Bench in the Ram Singh's case (supra), which is a well considered and detailed judgment deciding all the contentions raised on behalf of the State including as aforesaid. It would be appropriate to reproduce the relevant paras of the said judgment for ready reference:- 5. The contesting respondents have filed reply in a few of the petitions. Objections have been taken in relation to the petition directly filed to this Court that the petitioner has alternative remedy of filing appeal before the Tribunal and for availability of such alternative remedy, the petition is not competent. It has also been contended that the scope of interference in the transfer order remains limited and unless there be a case of malafide exercise of powers or violation of statutory rules, the order of transfer made in administrative exigency, being of an incident of service, calls for no interference. While justifying issuance of the impugned transfer order by the State Government, it has been contended with reference to 73rd Amendment to the Constitution of India that the elementary education has been placed under the control of Panchayati Raj Department with a view to strengthen the Panchayati Raj institutions and, therefore, according to the respondents, the transfer of the teachers working in elementary schools has rightly been effected by the Deputy Secretary in Panchayati Raj (Elementary Education) Department. It is further the stand of the respondents that the State Government is clothed with powers to make transfers in administrative exigencies; that the powers of the State Government under Section 89 (8-A) of the Act of 1994 are of wide range and amplitude and the State Government is very much authorized to effect such transfers. It has also been contended that the provisions of sub-section (8-A) of Section 89 of the Act of 1994 starting with a non-obstante clause have to be harmoniously construed; and the powers of the State Government to issue transfer orders over and above the powers of other functionaries is required to be given full effect; and likewise, even under Rule 289 (3) of the Rules of 1996, the State Government has ample competence to effect transfers within Panchayati Samiti/District. It is contended that the petitioners hold transferable posts and cannot insist on sticking to the same place of posting. The learned Government Counsel, while opposing the writ petitions, has referred to and relied upon a decision of this Court in the case of Mahendra Kumar Yadav Vs. State of Rajasthan : (2001) 1 WLC 328.
(3.) BEFORE embarking on the core question involved in the matter, it appears appropriate to dispose of the preliminary objection regarding availability of alternative remedy. Availability of an alternative remedy is not of absolute bar on exercise of writ jurisdiction by this Court; and then, in the matters of the present nature questioning the transfer orders specifically on the ground of violation of statute, there appears no reason to relegate the petitioners to the alternative remedy of appeal before the Tribunal. Noteworthy it is that at least two petitions in this batch have been filed after the concerned petitioner had approached the Tribunal and the appeal has been dismissed. In the overall view, the objection regarding alternative remedy in these matters deserves to be, and is, overruled. The short question calling for determination is as to whether the impugned transfer orders suffer from violation of any statutory requirement; or, more appropriately, as to whether the impugned transfer orders issued by the State Government transferring the petitioners from one place to another within the same Panchayat Samiti remain unauthorized and beyond the powers conferred by the statute? The answer, in the opinion of this Court, remains in the affirmative. The impugned transfer orders suffer fundamentally from want of authority. It is the stand of the respondents that the State Government is clothed with powers to make transfers in administrative exigencies; that the powers under Section 89 (8-A) of the Act of 1994 are of wide amplitude and thereby the State Government is authorized to effect such transfers. It has also been contended that sub-section (8-A) of Section 89 of the Act of 1994 starting with a non-obstante clause provides for the powers of the State Government to issue transfer orders over and above the powers of other functionaries; and that under Rule 289 (3) of the Rules of 1996, the State Government has competence to effect transfers within Panchayati Samiti too. A bare look at the relevant statutory provisions is sufficient to find that such contentions remain hollow and spineless; and that the impugned transfer orders of the employees like the petitioners within the same Panchayat Samiti suffer from want of authority with the State Government. ;