MATHUR, J. - (1.) THESE two petitions for writ involve common questions of facts and law, therefore, are decided and governed by this common judgment.
(2.) THE petitioners by an order dated 11. 10. 2006 issued by the Collector, Jodhpur are subjected to transfer as Patwari from one patwar circle to another with different Tehsil in District Jodhpur. THE challenge is given to the order aforesaid being in violation of Rule 9 read with Rule 412 of the Rajasthan Land Revenue (Land Records) Rules, 1956 (hereinafter referred to as "the Rules of 1957" ). THE Rules aforesaid read as follows:- " 9. Transfers.- (1) THE Collector may transfer a Patwari from one circle or tehsil to another in his own district; but no transfer 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. THE Sub-divisional Officers are also empowered to transfer a Patwari from one circle to another in the same tehsil or to another tehsil in their sub- division on sufficient grounds. Provided that if a Patwari is transferred out of the district on his own request he shall rank junior to existing Patwari's of that district. (ii) Transfers of patwari's should not be made unless the officer has satisfied himself that such transfer are necessary in the interest of efficiency of work or to fill up vacancy created by long leave, resignation, dismissal, suspension or transfer of a Patwari. THE Patwari going on transfer shall have to complete all his record and clear all his work in arrear before handling over charge to his successor. THE Tehsildar may, with the approval of the Sub-Divisional Officer, get the incomplete record completed by employing extra staff and paying such staff by deducting the required amount from the salary of the negligent Patwari. THEn unsatisfactory work or conduct of a Patwari should not be a ground for his transfer but for penal action. 412. Administrative matters pertaining to Patwaris.- THE Collectors are solely responsible for the appointment, transfer and discipline of Patwaris. Transfer of Patwaris are ordinarily undesirable and should on no count be made to suit the convenience of individuals. THEy can only be made under the conditions given in paragraph 9 and these conditions should be strictly observed. In order to avoid unnecessary transfers, Patwaris picked out for transfer, should, so far as possible be exchanged with one another rather than with other Patwaris. Transfers by way of punishment are not contemplated by law. Moreover, a transfer is hardly a substitute for punishment. " The requirements to transfer a Patwari from one Patwar circle to another in different Tehsil of same District as per Rules 9 and 412 of the Rules of 1957 are:- (1) the power to transfer a Patwari vests with the Collector; (2) the transfer of Patwari in ordinary course is undesirable; (3) the Collector can transfer a Patwari only on being satisfied that it is necessary in interest of work or to fill up vacancies created due to various reasons; (4) a Patwari should not be subjected to transfer for unsatisfactory work or for his conduct. No transfer of a Patwari should be made to accommodate individuals. The grounds to assail the order impugned in the present petitions for writ is non application of mind by the Collector as per Rules 9 and 412 of the Rules of 1957 while effecting transfers of the petitioners. It is contended that the order of transfer is passed by the Collector under the instructions of the Deputy Secretary to the Government of Rajasthan, Department of Revenue Group-II without getting himself satisfied that it was necessary for efficiency of administration or for any other reason given in Rule 9 of the Rules of 1957. It is also urged that the petitioners are subjected to transfer to accommodate private respondents at the place of their choice. In reply to the writ petition the official respondents came forward with the case that:- (1) the order impugned is issued in pursuant to the directions of the State Government making relaxation in Rule 9 (i) of the Rules of 1957; and (2) the Collector is having absolute authority to adjudge administrative exigency to effect transfer, therefore, such an order cannot be subjected to challenge.
(3.) THE respondent No. 4 raised various objections for invoking writ jurisdiction to challenge the order impugned dated 15. 10. 2006 and those are:- (1) an efficacious alternative remedy is available to the petitioners to challenge the order impugned by way of filing an appeal under the Rajasthan Civil Services (Service Matters) Appellate Tribunal Act, 1976 (hereinafter referred to as `the Act of 1976"), therefore, this Court must restrain itself to exercise discretionary powers vested to it by Article 226 of the Constitution of India; (2) the order of transfer should not be interfered with if there is no malafides or violation of statute and the instant matters lack such reasons; (3) a government servant cannot claim to remain at a specific place as it is out look of the government where the incumbent is to be posted: (4) the petitioners themselves were posted at their present place of posting under an order dated 15. 7. 2006 and that too was in violation of Rules 9 and 412 of the Rules of 1957, therefore, by conduct they are disentitled to challenge the order dated 11. 10. 2006; and (5) the quashing of the order dated 11. 10. 2006 shall restore the order dated 15. 7. 2006. i. e. the earlier order of transfer that was also passed in violation of Rule 9 read with Rule 412 of the Rules of 1957, hence this Court must not exercise its discretionary powers to quash the order dated 11. 10. 2006. After considering the averments contained in pleadings, this Court by order dated 8. 11. 2006 directed the Collector, Jodhpur as under:- (1) to place on record the order passed by the Government of Rajasthan making relaxation in Rule 9 (i) of the Rules of 1957 as averred in para 2 of the reply filed in behalf of the respondents No. 1, 2 and 3; (2) to place on record the order dated 9. 10. 2006 issued by the Deputy Secretary to the Government of Rajasthan, Departments of Revenue Group-I, that is referred in order dated 11. 10. 2006; (3) to place on record copy of the order dated 15. 7. 2006 from Divisional Commissioner, Jodhpur referred in the order dated 15. 7. 2006 (Anx. A/2) passed by the Collector, Jodhpur. (4) to produce the entire record showing that the Collector, Jodhpur before issuing the orders dated 15. 7. 2006 and 11. 10. 2006 adjudged efficiency of the Patwaris so transferred to satisfy himself that such transfers are necessary in the interest of efficiency of the work or to fill up the vacancy created by long leave, resignation, dismissal, suspension or transfer of Patwari; and (5) to place on record the government orders referred in column No. 7 of the order dated 15. 7. 2006 (Anx. A/2) on basis of which transfers of the persons whose names appears at Serial No. 1 to 65 were effected by the order aforesaid. The documents desired as per the order dated 8. 11. 2006 except noted at Serial Nos. 1 and 4 are shown to the Court and their photocopies are taken on record. Quite frankly it is stated by the official respondents that there was no order given by the Government to relax Rule 9 and no such power is available under the Rules of 1957. The averment with regard to relaxation of Rule 9 of the Rules of 1957 by the State Government was erroneously made in reply to the writ petition. It is also stated that while passing the order impugned the Collector has not recorded his satisfaction for effecting the transfers of Patwaris as the transfers were made to implement the instructions given by the government. ;