Rajasthan High Court quashes transfer of 198 Panchayat officials; issues guidelines for such transfers

The Rajasthan High Court recently issued guidelines on the transfer of Panchayat officials of various ranks, while emphasising on the autonomy of local bodies and the need to strengthen democracy at the grassroot level [Kera Ram v. The State of Rajasthan].Justice Arun Monga said though it is permissible for the State government to exercise its pervasive powers under Rajasthan Panchayati Raj Act, it should not amount to completely taking over the powers of self governance vested with the Panchayats to make the latter as completely redundant.The State government's role should primarily be one of general oversight rather than direct interference, the Court said while questioning the mass transfer of more than 885 Panchayat Officials. "Ordering the transfer of an employee within the Panchayat Samiti undermines the constitutional autonomy of Panchayati Raj Institutions and contravenes the constitutional mandate intended to empower these local self-governing bodies," the Court said..It was dealing with about 198 petitions challenging the transfers of various Panchayati Raj officials of the rank of Village Development Officers, Assistant Administrative Officer, Gram Sewak, LDC, Junior Assistants, Junior Technical Assistant and Gram Vikas Adhikari.The Court framed and answered the following questions after hearing the parties,.1. Does the omission to mention a specific location of Gram Panchayat for a Panchayat Samiti official's new duty station invalidate a transfer order?Taking into account the earlier judgments on the issue, Justice Monga said if the transferring authority is unaware of the required destination of the transferred official, the motive for transfer becomes questionable. "It raises concerns about the possible misuse of administrative discretion or punitive intentions. A transfer order rooted in genuine administrative need would specify the new duty location, allowing the official to promptly assume their duties. Therefore, the answer to the first question is affirmative," the Court said.2. Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?The Court in this regard noted that Section 89(8)(ii) of the Panchayati Raj Act states that "transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be of the Panchayat Samitis or the Zila Parishad from and to which such transfer is proposed to be made."The consultation serves a dual legislative purpose of upholding self-governance in panchayats and managing human resources effectively, the Court opined.Though the Court agreed that the consultation may not be equivalent to seek consent, it added,"However, at the same time, equating consultation with consent could empower Pradhans and Pramukhs excessively, leading to potential misuse. Hence, the requirement of consultation should not be wholly disregarded, to ensure Pradhans and Pramukhs are not made mere bystanders. The answer to the second question is negative, but transparency demands that reasons for bypassing consultation and disregarding its outcomes be documented.".3. Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad? The Court said such unilateral exercise of powers is not permissible."In my opinion, Rule 289 does not authorize unilateral transfers by Chief Executive Officers in the absence of specific recommendations or requests. Rule ibid underscores the importance of adherence to procedural norms and the principle of administrative exigency in effecting transfers, thereby preventing arbitrary exercises of power and safeguarding the rights of the employees," the judgment stated.4. Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?The Court said the BDOs/VDOs are not authorized independently to transfer Panchayat officials within the Panchayat Samiti. "Further, BDOs/VDOs are not authorized to independently order an appointment by transfer of Panchayat officials within the Panchayat Samiti without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad. Thus, the answer to questions 3 and 4 is negative.".5. Is the recommendation of the District Administration and Establishment Committee necessary for transfer of an employee within a Panchayat Samiti or Zila Parishad by the Chief Executive Officer of a Zila Parishad?The Court answered the question in affirmative"The recommendation of the District Administration and Establishment Committee is necessary for transfer of an employee by the Chief Executive Officer of a Zila Parishad himself within a Panchayat Samiti or Zila Parishad. But, if the District Establishment Committee/Standing Committee disagrees on such transfer, the CEO/Vikas Adhikari can follow the State Government's instructions," it said..6. What is the legislative intent and scope of the State's power under the non-obstante clause in Section 89(8)(A) of the Panchayat Raj Act, 1994, as amended by Act No. 23/1994 in Rajasthan?The Court said while the State government holds overriding authority for issuing transfer orders, this power should not undermine the autonomy of Panchayati Raj Institutions.Striking a balance is essential to maintain the local bodies' autonomy and constitutional integrity, it added..In conclusion, the Court issued following guidelines for transfer of Village Development Officers, Assistant Administrative Officer, Gram Sewak, LDC, Junior Assistants, Junior Technical Assistant and Gram Vikas Adhikari.1. Panchayat officials recruited for district cadre posts cannot and ought not to be transferred in routine outside their respective districts, except wherever permissible under the Act and the Rules framed there under.2. Transfers must be made only after consulting the Pradhan of the Panchayat Samiti.3. Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad.4. The State can use overriding powers to make transfers without consulting the Pradhan or the Pramukh.5. The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district.6. 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.7. Section 89(8)(ii) of the Rajasthan Panchayati Raj Act mandates that a Zilla Parishad can transfer an employee from a Panchayat Samiti only after consulting the Pradhans or Pramukhs of the respective Panchayat Samitis or Zilla Parishads involved in the transfer.8. Rajasthan Panchayati Raj Rules, 1996 envisage that the Zilla Parishad is the controlling authority for employees appointed in Panchayat Samitis. Transfers within a Zilla Parishad from one Panchayat Samiti to another must comply with Section 89(8)(ii), ensuring consultation with the respective Pradhans or Pramukhs.9. Under Section 89(8A) of the Rajasthan Panchayati Raj Act, consultation is not required for transfers made under this section. It gives the State Government the power to stay or cancel transfer orders made under Section 89(8) or the associated rules.10. In compliance with State Orders, the Chief Executive Officer/Vikas Adhikari are empowered must to execute transfer orders passed by the State Government, as interpreted by a harmonious reading of Rule 289(3) with Sub-section 89(8A). They do not have any independent power to pass transfer orders.11. The Government must respect the role of the District Establishment Committee of the Zilla Parishad in issuing transfer orders/policies. 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.12. 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, not assumed through tacit or non-resistant behavior..The Court also allowed the petitions and set aside the transfer orders of petitioners with liberty to pass them afresh, depending upon the administrative exigencies.The Court said transfer orders, if needed, must be passed within the parameters of the directives issued above..Advocates JS Bhaleria, Mukesh Rajpurohit, Ramesh Kumar, Kuldeep Singh Solanki, Praveen Karwa, Manoj Kumar Pareek, Mahendra Vishnoi, Dheerendra Singh Sodha, Pawan Singh, Rakesh Matoria, Mahendra Singh Godara, Vijay Kumar, Vinod Jhajhari, Kaushal Sharma, Vikas Bijarnia, Jay Prakash, Mukesh Vyas, Jagatveer Singh, NR Budania, Govind Lal, Sachin Saraswat, Saroj Patel, Hemant Dutt, Ramawatar Singh, VLS Rajpurohit, Sushil Solanki,. Sunil Beniwal, Hanuman Singh, Sunil Purohit, Awar Dan Ujjwal, DS Pidiyar, Shailendra Gwala, Shree Kant Verma, Narpat Singh Rajpurohit, Pritam Joshi, Sanjay Kumar Poonia, Jassa Ram, Sumer Singh Gour, Hemant Shrimali, MR Khatri, Vikram Singh Bhawla, Harshvardhan Singh Chundawat, Rishabh Tayal, PR Kumawat, KL Chouhan, OP Sangwa, Bheru Lal Jat, Devendra Sanwalot, Hapu Ram, Kamlesh Choudhary, Tanwar Singh, Manish Dadhich, Sandeep Kalwaniya, Surendra Singh Choudhary, Chandraveer Singh, Shardul Singh, OP Kumawat, Jitendra Choudhary, Virendra Acharya, Ramesh Dewasi, Nikhil Bhandari and Harish Kumar Purohit represented the petitioners.Additional Advocate General Mahavir Bishnoi and Advocates Gaurav Bishnoi, Lalit Pareek, Rajdeep Singh, Sanjay Nahar, HS Chundawat represented the State..[Read Judgment]