- (1.) THESE six writ petitions raise common questions of law and are based on identical facts and therefore, they were heard together and are being decided by a common order/judgment.
(2.) THE facts necessary to be noticed for the disposal of these six writ petitions briefly stated are : (1) FACTS OF RAMKISHORE SHARMA's CASE : THE case of the petitioner is that he was initially appointed as Gram Sewak-cum-Secretary with effect from 30. 7. 1977 in Panchayat Samiti, Simbalwada District Doongarpur. THEreafter, he was transferred to Panchayat Samiti, Shahpura (District Jaipur) and from there, he has been transferred to Panchayat Samiti, Bhopalgarh on the same post with effect from 30. 11. 1983. It is alleged that now he has been transferred to Panchayat Samiti, Osian vide order Annexure P. l dated 30. 7. 1992 and has already been relieved to join his new place of posting. It is this order, which is under challenge in this writ petition. (2) FACTS OF CHHOTU SINGH's CASE : Petitioner Chhotusingh was initially appointed as Gram Sewak-cum-Secretary with effect from 30. 8. 1962 in Panchayat Samiti, Balesar, District Jodhpur. THEreafter, in the year 1965, he was transferred to Panchayat Samiti, Luni. He was then transferred to Panchayat Samiti, Shergarh in the year 1977 and he remained there for about 9 months. He was again transferred to Panchayat Samiti, Luni in the year 1978 and is continuously working there on the post of Gram Sewak cum-Secretary. It is alleged that by order Annexure-P. 1 dated 30. 7. 1992, he has now been transferred to Panchayat Samiti, Mandore. He has challenged the order Annexure-P. 1 dated 30. 7. 1992, whereby he has been transferred to Panchayat Samiti, Mandore. (3) FACTS OF BABU LAL PAREEK's CASE: It is alleged that the petitioner was initially appointed as Lower Division Clerk with effect from 2. 4. 1968 in Panchayat Samiti, Balesar and he was, thereafter, transferred to various Panchayat Samities but ultimately, he came to be posted in Panchayat Samiti, Luni with effect from 22. 10. 1985 and is working there on the same post since then. He also stands transferred to Panchayat Samiti, Mandore vide order Annexure-P. 1 dated 30. 7. 1992 and has been relieved to join his new place of posting. (4) FACTS OF GANGA SINGH's CASE: Petitioner Ganga Singh was initially appointed on the post of Gram Sewak with effect from 23. 12. 1988 and was posted in Panchayat Samiti, Shergarh, from there, he has been transferred to Panchayat Samiti, Luni vide order Annexure P. l dated 30. 7. 1992. He has been relieved to- join his new place of posting. (5) FACTS OF SURENDRANATH ARORA's CASE: THE case of the petitioner is that he was initially appointed as Teacher IIIrd Grade with effect from 8. 7. 1992 in Panchayat Samiti, Bap and is working since then. It is alleged that by order Annexure-P. 1 dated 30. 7. 1992, he has been transferred to Panchayat Samiti, Mandore and has been relieved to join his new place of posting. (6) GULAB SINGH's CASE: It is alleged that the petitioner was initially appointed as Lower Division Clerk with effect from 9. 1. 1968 in Panchayat Samiti, Bilara. It is alleged that while he was working as L. D. C. in Panchayat Samiti, Bilara, he has been confirmed on the pot of L. D. C. It is further alleged that thereafter, the petitioner was transferred to Panchayat Samiti, Bap with effect from 25. 9. 1971, and from there, he was transferred to Panchayat Samiti, Rohat in the month of March 1971 on the post of Gram Sewak. However, he was again transferred on the post of Lower Division Clerk in the month of June 1979 in Panchayat Samiti, Bap and is working there since then. It is alleged that by order Annexure-P. 1 dated 30. 7. 1992, he has been now transferred to Panchayat Samiti Phalodi and has been relieved to join his new place of posting. According to the petitioners, the Secretary, District Establishment Committee has no powers to transfer them from one Panchayat Samiti to another Panchayat Samiti because it is a case of routine transfer but not a case of transfer by appointment and it results in the change of employer, which is not permissible by the Rules. It was further contended that the Panchayat Samities, where they have been transferred, have not determined any vacancies as per Rule 8 of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 (for short 'the Rules' herein) and therefore, it is a case of routine transfer and not a transfer by appointment. The contention of the petitioners is that the Panchayat Samiti being an autonomous body, its prior consultation was essential and since before their transfers, their respective Panchayat Samities were not consulted, these transfers are violative of R. 28 of the Rules as also the provisions of s. 86 (9) of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959 (hereinafter to be referred as 'the Act' ). They have further submitted that before their transfers, they were also not consulted and these transfers are also violative of the provisions of R. 6 of the Rules and S. 86 (5) of the Act. They have submitted that the provisions of R. 28 of the Rules cannot override the provisions of ss. 86 and 89 of the Act. According to them, transferring them from one Panchayat Samiti to another Panchayat Samiti by the Secretary, District Establishment Committee is a fraud on the provisions of the Act and the Rules and it is also malicious in character and, therefore, they have filed these writ petitions to quash these transfer orders, although they have been relieved to join their new places of postings. A reply to the writ petition has been filed on behalf of the respondents in the writ petition filed by Shri Surendranath Arora, wherein it has been contended that before issuing these transfer orders, the concerned Panchayat Samities were consulted. According to the respondents, before making transfer of an employee, it is not necessary to take his consent. It was further submitted that the powers of the State Govt. to transfer any member of the Service from one Panchayat Samiti to another Panchayat Samiti in the same District under Sec. 86 (9a) of the Act have been delegated by the State Govt. to the Secretary, District Establishment Committee under s. 84 (2) of the Act vide Notification No. F. 2 (5) Gramin/p. Raj/c. E. 0/89/48 dated 19. 1. 1990 issued by the Director-cum-Special Secretary to the Govt. , Gramin Vikas and Panchayati Raj. Department, Govt. of Rajasthan, Jaipur and, therefore, these transfers are absolutely valid and the petitioners are entitled to no relief. It was submitted that a member of Zila Parishad and Panchayat Service can be transferred from one Panchayat Samiti to another Panchayat Samiti for administrative reasons and this question came up for consideration before a Division Bench of this Court in State of Rajasthan vs. Ram Pratap & 29 Others (1), wherein it has been held that the conferment of powers on Govt. to make intra-District and inter- District transfers is not bad and s. 86 (9-A) of the Act is valid and constitutional.
(3.) ACCORDING to the respondents, ever since his selection, the petitioner Surendra Nath Arora remained posted at Bap. It was further submitted that there were some complaints against him and therefore, he has been transferred. I have heard Mr. P. P. Choudhary, the learned counsel appearing for the petitioners and Mr. Vijay Bishnoi, the learned counsel appearing for the respondents and have carefully gone through the record of the case. Mr. P. P. Choudhary, the learned counsel appearing for the petitioners has contended that Panchayat Samities are autonomous bodies and the petitioners are the employees of the Panchayat Samities as per the provisions of S. 86 read with Ss. 31 and 60, of the Act. According to Mr. Choudhary, the learned counsel appearing for the petitioners, there are only three modes of appointments, which have been provided in s. 86 (5) of the Act, which are : (a) appointment by direct recruitment; or (b) appointment by promotion, or (c) appointment by transfer. According to him, it is not a case of appointment by transfer but it is a case of routine transfer and therefore, it is not covered by the provisions of S. 86 (5) of the Act. ;