Case title: Kera Ram VS. The State Of Rajasthan ORS.
Case no : S.B. Civil Writ Petition No. 2909/2024
Order on: 30/04/2024
Qoram: HON’BLE MR. JUSTICE ARUN MONGA
Fact of the case:
The petitioner, Kera Ram, is currently serving as a Gram Sewak cum Village Development Officer at Panchayat Samiti, Sarnau. He was transferred to Panchayat Samiti, Bagora via an order dated 19.02.2024 issued by the Chief Executive Officer (CEO) of Zila Parishad, Jalore. A large number of panchayat officials, including Village Development Officers/Assistant Administrative Officers/Gram Sewak/LDC/Junior Assistants/Junior Technical Assistants/Gram Vikas Adhikari, have been transferred through various orders issued by the State Government, CEOs of respective districts, and other officials like BDOs/VDOs. The petitioner challenges the legality of these transfer orders, alleging violations of the Rajasthan Panchayati Raj Act, 1994, and the Rules framed thereunder. Kera Ram claimed that the Chief Executive Officer of the Zila Parishad and other officials did not follow the proper procedures and guidelines for transferring employees within the Panchayat system.
Issues Framed by the Court
- Does the omission to mention a specific location of Gram Panchayat for a Panchayat Samiti official’s new duty station invalidate a transfer order?
- Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?
- Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad?
- Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?
- Is the recommendation of the District Administration and Establishment Committee necessary for the transfer of an employee within a Panchayat Samiti or Zila Parishad by the Chief Executive Officer of a Zila Parishad?
- What is the legislative intent and scope of the State’s power under the non-obstante clause in Section 89(8A) of the Panchayat Raj Act, 1994, as amended by Act No. 23/1994 in Rajasthan?
Legal provisions:
Constitution of India:
Article 243A – Gram Sabha: Empowers the Gram Sabha to exercise powers and perform functions at the village level as determined by the State Legislature.
Article 243B – Constitution of Panchayats: Mandates the constitution of Panchayats at the village, intermediate, and district levels in every State, except those with populations below 20 lakhs, where intermediate level Panchayats may not be constituted.
Article 243C – Composition of Panchayats: The composition of Panchayats shall be determined by the Legislature of the State.
Article 243G – Powers, Authority, and Responsibilities of Panchayats: Empowers the Legislature of a State to endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government.
Article 243H – Powers to Impose Taxes by, and Funds of, the Panchayats: The State Legislature may authorize Panchayats to levy, collect, and appropriate taxes, duties, tolls, and fees.
Panchayati Raj Act, 1994:
Section 9 – Constitution of Panchayats
Section 10 – Creation of Panchayat Samitis
Section 51 – Functions of Panchayat Samiti
Section 89(8A) – Transfer of Employees
Rule 289: Procedures for transfer within a district under Panchayat Samiti or Zila Parishad
Contentions of Appellant:
The petitioner argues that the CEO of Zila Parishad is not legally competent to pass a transfer order for a Village Development Officer as per the provisions of the Rajasthan Panchayati Raj Act, 1994, or the Rules framed thereunder. The transfer order lacks prior approval or consent from the Samiti through its Pradhan, which is mandatory under Section 89(8)(ii) of the Act of 1994. The District Establishment Committee (DEC) of Zila Parishad is the competent authority to pass transfer orders, which should be based on the request of the Panchayat Samiti through its Pradhan. Petitioner also argued that the transfer does not reflect any administrative exigency as no one has been posted in the petitioner’s place. The transfer order does not specify the particular Gram Panchayat to which the petitioner should report, leaving him in a state of suspense. The transfer orders passed by the State suffer from non-application of mind as many officials have been transferred without being assigned any specific place of posting. Transfer protocols must be followed to avoid misuse of power, including recommendations from the DEC and prior consultation with the Pradhan or Pramukh. Some transfer orders were passed during a period when there was an absolute ban on transfers, violating administrative instructions issued by the Chief Secretary.
Contentions of Respondents:
The Respondent here is State Government retains exclusive right to transfer Panchayati Raj officials anywhere in the State. The State instruct CEOs or BDOs to carry out such transfers as per Rules 89 and 290. The State’s transfer orders merely select the officials to be transferred, leaving the task of assigning specific transferred locations to the CEOs. Under sub-section 8A of Section 89, the State has the power to transfer any panchayat officials without requiring prior consultation with the Pradhan or Pramukh or a recommendation from the DEC. Consultation with the Pradhan or Pramukh is directory, not mandatory. The term “consultation” implies soliciting input rather than requiring consent. Section 89(8)(ii) differentiates between fresh appointments and routine postings. The sub-section concerns new appointments, not routine postings. Most transfer orders specify the place of posting, and only a few exceptions exist where this was not mentioned, thus not warranting interference by the court.
Court analysis& Judgement:
The court emphasized the constitutional direction for decentralized governance and the empowerment of Panchayati Raj institutions (PRIs) to manage local affairs autonomously. The 73rd Constitutional Amendment supports this decentralized system. The court pointed out that while the State Government has oversight powers, it should not interfere excessively in the routine administrative affairs of PRIs, thereby respecting their autonomy and the constitutional scheme of self-governance. The court stressed the importance of following procedural norms for transfers, including the necessity of consulting relevant Panchayat officials (Pradhans or Pramukhs) to maintain transparency and accountability. The court examined the powers under Section 89(8A) of the Panchayat Raj Act, which allows the State Government to transfer Panchayati Raj officials without following other procedural safeguards. However, the court maintained that this power should be exercised sparingly and only in cases of administrative exigency. The court repeated that adherence to established judicial precedents could avoid needless litigation.
The court framed specific guidelines for the transfer of Panchayati Raj officials to ensure clarity and prevent arbitrary decisions, this are; Panchayat officials recruited for district-cadre posts should not be transferred outside their respective districts routinely, except where permissible under the Act and Rules. Transfers must be made only after consulting the Pradhan of the Panchayat Samiti. Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad. The State can make transfers without consulting the Pradhan or the Pramukh. The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district. The State can transfer officials from one Zilla Parishad to another, from a Panchayat Samiti to a Zilla Parishad, or within the same Zilla Parishad or Panchayat Samiti, with or without consultation of Pradhan or Pramukh. Consultation is not required for transfers made under this section, which gives the State Government the power to stay or cancel transfer orders made under Section 89(8) or associated rules. The Chief Executive Officer/Vikas Adhikari must execute transfer orders passed by the State Government. They do not have any independent power to pass transfer orders. The Committee is empowered to exercise transfer powers in accordance with Government policies and directions, ensuring that the Panchayati Raj institutions’ constitutional status is upheld. Inter-district transfer orders by other Departments must obtain consent from the Panchayati Raj department. ‘Consent’ implies a voluntary, informed decision, and must be explicitly stated through a conscious decision-making process. The court allowed the writ petitions, set aside the impugned transfer orders, and directed the respondents to pass fresh orders if necessary, based on administrative exigencies and within the parameters of the guidelines issued by the court.
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Judgement Reviewed By- Antara Ghosh
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