N. C. SHARMA, J. - (1.) THIS is a writ petition by Rameshwar Prasad Dixit and Madho Lal Jat, who are Gram Sevaks and ex-offlcio Secretaries of the Gram Panchayat challenging their transfer from Panchayat Samiti, "niwai to Panchayat Samiti,'deoli by order dated August 30, 1989 (Ex. 4) issued by the Secretary District Establishment Committee, Zila Parishad, Tonk.
(2.) BOTH the petitioners were Gram Sevak and ex-officio Secretary of the Gram Panchayat in substantive capacity. It is alleged that District Establishment Committee by its order dated April 22, 1989 (Ex. I) ordered the transfer of the petitioners from Panchayat Samiti, Niwai to Panchayat Samiti, Tonk The petitioners made an approach to the Government and after' considering their matter, the-Government of Rajasthan in Rural Development and Pancha-yati Raj Department by order dated July 1, 1989 (Ex. 2) cancelled their transfers However on August 30, 1989, the District Establishment Committee, Tonk by order Ex. 4 transferred the petitipners from Panchayat Samiti, Niwai to the Panchayat Samiti, Deoli. The petitioners have stated that this transfer was malafide and further that the power of transfer within district or outside district can be exercised only at the request or desire of the employee concerned. It is also stated that if there were any administrative reasons which warranted transfer of the petitioners they could have been transferred and posted at any of the three Gram Panchayats under the Panchayat Samiti, Niwai. The writ petition was opposed by respondents No. 2 and 3 who have stated that petitioner No. 1 Rameshwar Prasad was holding the post of Gram Sevak and ex-officio Secretary in Panchayat Samiti Niwai since 1961 and he was working in Gram Panchayat Samiti, Sirohi since 1983. The petitioner Madho Lal Jat was working in Gram Panchayat Samiti, Niwai since 1977 and in Gram Panchayat, Behad since June, 1987. It has been stated that both the petitioners had a long stay under Panchayat Samiti, Niwai and they were transferred keeping in view the exigencies of service. The allegations regarding mala-fides and abuse of power are denied. During the course of arguments, the learned counsel for the petitioners contended that under the Rajasthan Panchayat Samitis & Zila Parishads Act, 1959 and the Rajasthan Panchayat Samitis & Zila Parishads Service Rules, 1959, transfer is a mode of appointment and, therefore, the power of transfer can only be exercised if it is exercised for the purpose of making appointment. It was urged that it cannot be exercised simply to transfer an employee working in Panchayat Samiti or Zila Parishad for the sake of transfer, even on administrative reasons The learned counsel for the respondents, on the other hand, urged that the power of transfer is vested in the District Establishment Committee by virtue of the provisions contained in Rule 28 of the aforesaid Rules. Although, the above point has not been taken by the petitioners in their writ petition, but since the issue raised is a pure question of law and is of importance, it was allowed to be raised. Sec. 86 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (for short, hereinafter, "the Act") inter alia, provides that there shall be constituted for the State, service designated as Rajasthan Panchayat Samitis and. Zila Parishads Service and the recruitment to that service shall be made District-wise. This service is divided into different categories like village level workers, Gram Sewaks, Primary School Teachers, Ministerial Establishment, except the Accounts Clerks, Fieldmen, Stockmen and Vaccinators. Sub-section (5) of sec. 86 expressly provides that except for first appointment to posts in the Service referred to in sub-section (5) of Section 31, all appointments to posts in the service shall be made in accordance wit the provisions of Sections 31 and 60- (a) by direct recruitment, or (b) by promotion, or (c) by transfer. It would, thus, appear that transfer is a mode of appointment to post in the Service. Sub-section (4) of Section 31 also provides that appointments to other posts fixed under subsection (1) or created under sub-section (2) shall be made by the Panchayat Samiti in the prescribed manner from out of persons selected for the Rajasthan Panchayat Samiti and Zila Parishad Service constituted under Section 86. Section 60 of the Act provides that the provisions of Section 31 shall apply in relation to the staff of a Zila Parishad other than the Secretary subject to the variation that for the expressions "panchayat Samiti" and "vikas Adhikari" occurring therein, the expression "zila Parishad" and "secretary" shall respectively be substituted. Sub-section (6) of Sec. 86 provides that appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of Section 88. Sub-section (9) of Section 86 deals with appointments by promotion or transfer of incumbents holding posts encadered in the Service ' shall be governed by rules made in this behalf and may be ordered by the Panchayat Samiti or the Zila Parishad, as the case may be, from amongst persons entered in district wise lists in prescribed manner, (a) in the case of promotions or transfers within the same district by the District Establishment Committee constituted under section 88; anc (b) in the case of other transfers, by the Selection Commission constituted under Sub-section (6), on the recommendation of the Panchayat Samiti or the Zila Parishad under whose administrative control they are for the time being and after consulting the Panchayat Samiti or the Zila Parishad, as the case may be, be under whose administrative control they are proposed to be transferred. To give effect to the provisions contained in Sec. 86 of the Act and other relevant sections, Rajasthan Panchayat Samitis & Zila Parishads Rules, 1959 were framed. Since they are rules framed under the Act, they cannot be interpreted to run counter to the Act, but have to be read and interpreted consistently with the provisions of the Act. Rule 6 of the Rules clearly provides that vacancies after the commencement of these Rules shall be filled : - (a) by direct recruitment in the lowest grade of each category, (b) by promotion from a lower to a higher grade in the same category and (c) by transfer of persons holding corresponding posts under a Panchayat Samiti, Zila Parishad or Government. Thus, Rule 6 of the Rules is in perfect harmony with Sub-section (5) of Section 86 of the Act. The word "vacancies" in Rule 6 is important and it is quite clear that only a vacancies after the commencement of these Rules can be filled by transfer of persons holding a corresponding post under a Panchayat Samiti* or Zila Parishad. Rule 8 of the Rules expressly provides that subject to the provisions of the Rules, and the directions of Government, the Panchayat Samiti or the Zila Parishad shall determine and intimate to the Commission twice in every year i. e. first January and first July, the number of vacancies anticipated under each category during the following six months, period and the number of persons likely to be recruited by each method. Procedure is provided for in the Rules for direct recruitment from Rules 15 to 19. Rule 20 deals with recruitment by promotion Rules 28 and 29 with transfer within district and outside district. This power of transfer under Rules 28 and 29 is for the purpose of making appointment to the Service against vacancies. This is not a power of transfer of employee working under one Panchayat Samiti to another Panchayat Samiti as an administrative power of transfer of employees. It is a method of appointment to vacancies and the power under Rr. 28 and 29 can only be exercised if there are vacancies and they are determined in accordance with Ru!e 8 of the Rules. Rr. 28 and 29 have to be read with sub-sec. (9) of Sec. 86 (a ). Sub-rule (2) of Rule 28 of the Rules also makes it clear that appointment by transfer, of such employees shall be made by the Panchayat Samiti or the Zila Parishad concerned on the recommendation of the District Establishment Committee which shall consult Panchayat Samiti or the Zila Parishad, as the case may be, under whose administrative control they are for the time being and also under whose administrative control they are proposed to be transferred by transfer of employee. Confidential roles and service records are also transmitted to the Panchayat Samiti to whom his services have been transferred. In the instant case, the power of transfer has not been exercised by respondents No. 2 and 3 in order to make an appointment to the Service by transfer, but it has been exercised. simply treating it as an ordinary power of transfer of an employee from one Panchayat Samiti to another on administrative grounds. This exercise of power is not only violative of the provisions contained in Sec. 86 of the Act, but is also in violation of Rule 28 of the Rules. On this ground alone, Annexure 4 deserves to be quashed. I allow this writ petition and quash the order dated August 30, 1989, passed by the District Establishment Committee, Zila Parishad, Tonk transferring the petitioners from Panchayat Samiti Niwai to Panchayat Samiti, Deoli. The petitioner would be allowed to work as Gram Sewak and ex-officio Secretary, Panchayat Samiti, Niwai. In the circumstances of the case, I shall leave the parties to bear their own costs. . ;