TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE writ petitions are decided by this common judgment as there are common questions of facts and laws are involved in these petitions. S. B. Civil Writ Petition No. 4178/2002 has been filed by the Rajasthan Shikshak Sangh (Sanadhya) through its National Secretary Shri Kishan Gopal Joshi; whereas other writ petitions have been filed by private individual persons challenging the order of transfer, passed by the District Education Officer (Primary Education), transferring the petitioners engaged in primary education in various schools situated at different places but within the State of Rajasthan. According to learned counsel for the petitioners, the orders of transfer are without jurisdiction on the ground that though earlier subject of primary education was with the Education Department of the Government of Rajasthan but, the State Government decided to transfer the subject of Primary Education in the State of Rajasthan to the Panchayati Raj Institutions of the Rajasthan, to give effect to the 73rd Constitutional Amendment by which item No. 234 (B.) has been amended. For this the State Government issued order on 29. 4. 2000. Copy of this order is Annexure A/1. Therefore, entire administration of primary education now vests with the Panchayati Raj Institutions and the Dist. Education Officer though appointing authority of the petitioners left with no jurisdiction to pass the orders of transfers of the teachers engaged in primary education. The State government thereafter, further issued number of orders which also shows that the State government had intention to transfer the entire subject of Primary Education to the Panchayati Raj Institutions and one of those order is the order dated 19. 7. 01 (Annex. A/2 ). This order dated 19 July 2001 was issued by the State government, when the State Government came to know that, in the matter of transfer of teachers engaged in Primary Education, the orders are being issued in violation to the guidelines issued by the State Government, therefore, the State Government directed various authorities to see that the guidelines issued by the State government be followed strictly and in case any order in violation of the guidelines is issued, than action be taken against the guilty officer under the provisions of C. C. A. Rules and in the case against the public representatives such action may be taken under section 38 of the Rajasthan Panchayati Raj Act. It is relevant to mention here that the above order dated 19 July 2001 was issued by the Director, Panchayati Raj Department, Government of Rajasthan. According to learned counsel for the petitioners, not only this but, despite clear direction of the State government, the education Department officers did not stop issuing transfer orders, therefore, the State Government took a serious view and the State government issued another circular dated 28. 8. 2001 informing all concerned authorities that, to give effect to the decision of handing over work of primary education to the Panchayati Raj Institution, necessary amendments have been made in the Rajasthan Panchayati Raj Act, therefore, all work relating to the primary Education which was being done by the Chief Executive Officer/the local Officer now will be done by the District Primary Education Officer/sub-Primary Education Officer but it does not mean that work of primary education has been separated from the Panchayat Samiti. In fact, Primary Education Officer has also been included with Chief Executive Officer and both will work under the control and supervision of Zila Pramukh. By this circular new guidelines are issued, making it clear that at district level, the Chief Executive Officer and at Panchayat Level, the Development Officer shall be Chief Administrative Officer and they will have powers, including the power to give directions to the District Primary Education Officer and to take proposals in the matter of transfers, disciplinary and other administrative matters from District Primary Education Officer/sub Primary Education Officer so that agenda for educational work may be prepared for taking decision by the District Establishment Committee and thereafter, the implementation of the decisions Committee and thereafter, for implementation of the decisions they may be sent to Primary Education Officer/sub Primary Education Officer upon which, necessary orders may be issued by the District Primary Education Officer/sub Primary Education Officer. Copy of this circular is Annexure 1. Petitioners have placed on record yet another order dated 4th October 2002 issued by the Panchayati Raj (Primary Education) Department, prescribing the procedure to be adopted in the matter of transfers and postings of the teachers working in the primary education, therefore according to the learned counsel for the petitioner, the respondent No. 1 State as well as the Panchayati Raj Department of the State cannot take contrary stand to their own orders and circular. It is further submitted that, the intention to transfer the entire primary education to the Panchayati Raj Institutions can be achieved only by giving full power to the Panchayati Raj Institutions including the power of posting and transfers of the teachers in the schools without which object of transfer of primary education to the Panchayti Raj Institution cannot be fulfilled, therefore, the transfer orders issued by the District Education Officer, in whom no power remains, to transfer teachers working in the primary School, are without jurisdiction and without authority of law. Next it was contended by the learned counsel for the petitioners, that the teachers engaged in primary education, can be transferred only in accordance with the provisions of the rule 289 of the Rajasthan Panchayati Raj Rules 1996. As per Rule 289 of the rules of 1996, transfer orders of the teachers can be issued by the Panchayat Samiti or Zila Parisad only after getting approval from the District Establishment Committee. The rule 289 has not been amended by the State government to give power of passing order of transfer of teachers by the District Education Officer. Learned counsel for the petitioners relies upon the judgment of this court delivered in case of Rajasthan Shikshak Sang vs. State and Others (1), decided on 2. 4. 02. In the above writ petition also, the petitioners challenged the orders of transfer made by the Director, Primary Education dated 12. 10. 2001 on the same ground of death lack of competence of the Director Primary Education, placing reliance upon the provisions of Rule 289 of the Rajasthan Panchayati Raj Rules, 1996. In the above case order dated 20 January 2001 conferring the power of transfer within the District upon the Director, Primary Education was considered. It was held in the above case that Government Order cannot be enforced unless the provisions of Rule 289 of the rules of, 1996 have also been amended to that effect. It appears that sufficient material was not placed before the learned single judge therefore, the learned single judge disposed of the writ petition as under :- " Let the matter be considered afresh by the District Establishment Committee, Jodhpur and in case the District Establishment Committee is of the view that the provisions of rule 289 has also been amended, the matter may be referred to Director. Primary Education and the said authority will pass the appropriate order of transfer. In case the District Establishment Committee comes to the conclusion that there is no amendment to the provisions of Rule 289, the Committee shall pass the appropriate order and sent it to the Vikas Adhikari or the competent authority for enforcement. "
(3.) LEARNED counsel for Rajasthan Shikshak Sangh, Mr. M. R. Singhvi, Ms. Kusam Rao for the State, Shri R. S. Saluja for other respondents raised preliminary objections with respect to the maintainability of the writ petitions filed by all the petitioners on the ground of availability of effective alternative statutory remedy to petitioners under the provisions of Rajasthan Civil Services (Service matters appellate Tribunal) Act, 1976. According to the learned counsel's for the respondents, the petitioners have challenged the orders of their transfers. Admittedly the petitioners are the Government servants and could have preferred the appeals against the above orders before the Rajasthan Civil Services Tribunal but instead of availing the statutory remedy available to the petitioners, the petitioners straightway preferred the writ petition under Article 226 of the Constitution of India, without assigning any reason for not filing appeals against the above orders and there exists no ground for not filing the appeals by the petitioners against the above orders, if the petitioners are aggrieved against the above orders of transfers. Mr. M. R. Singhvi relies upon the Judgment of the Hon'ble Supreme Court delivered in the case of Secretary, Minor Irrigation and Engineering Services vs. Sahngoo Ram Arya and Anr. (2), when, the Hon'ble Supreme Court held that even where the Tribunal has no authority to grant the interim orders, even then it cannot be ground to bypass the State Tribunals. It is also submitted by the learned counsel for the respondent that the Primary Teacher is the post available in the Rajasthan Panchayati Raj Act 1994 as well as shown in the rules framed their under which are the rules of 1996. The petitioners in the present writ petitions are not the employees appointed under the above act of 1994 or rules of 1996 but they are the employees of the State and are appointed by following procedure which is provided under the Rajasthan Educational Subordinate Service Rules, 1971. Their appointing authority is the District Education Officer and who is competent to pass the order of transfer of the petitioners from one School to another school. The teachers appointed under the Panchayati Raj act and rules can become the employees of the State services only by their appointment as teacher under rules of 1971 as there is quota provided for giving appointment to the Panchayati Raj Primary Teacher on the post of Teacher under entry 9 (A) of Sec. F of Schedule appended to the Rajasthan Education Subordinate Service Rules, 1971. Therefore, according to the learned counsel for the Respondents, there exists two sets of the teachers engaged in primary education. one is appointee under the provisions of the Panchayati Raj Act, 1994 and another is appointee under the Rules of 1971. Appointing authority of both the teachers are different and therefore, the Rule 289 of the rules of 1996 applies to the teachers appointed under the provisions of the Act of 1994 and the rules of 1996 and these Rules have no application over the petitioners teachers. It is also submitted that the judgment relied upon by the counsel for the petitioners delivered in S. B. Civil Writ Petition No. 4363/01 also goes against the petitioners, as the petitioners are relying upon the various circulars issued by the Panchayati Raj Department or the orders passed by the State Government which cannot override the statutory provisions of the rules of 1971. Another preliminary objection with respect to the maintainability of the writ petition No. 4178/02, filed by the Rajasthan Shikshak Sangh (Sanadhya) is that the petitioner union is not registered union and therefore cannot maintain the writ petition in view of the Full Bench decision of this court delivered in the case of RSEB Accountants Association vs. RSEB, where in the Full Bench of this court held that the writ petition filed by the unregistered association is not maintainable. Learned counsel for the petitioners in rejoinder submitted that the petitioner union is registered union and he can place on record the copy of the registration certificate of the petitioner union. So far as appointment of the members of the petitioners union as well as other petitioners are concerned, the learned counsel for the petitioners frankly admitted that the petitioners are the Government Servant as defined in sub-clause (c) of Sec. 2 of the Rajasthan Civil Service (service matter appellate Tribunal), Act 1976 and their services are being governed by the Rules of 1971, they are not the appointees under the Rajasthan Panchayati Raj Act 1994 or rules framed their under of 1996. Still, according to the learned counsel for the petitioners, since the State government has transferred the subject of Primary Education to the Panchayati Raj Institutions, therefore, only for the purpose of transfers, the petitioners are governed by the rule 289 of the rules of 1996 otherwise there will be no meaning of transfer of primary education to the Panchayati Raj Institutions. ;