Surendra Kumar Bhatt & Ors. v. State Of Rajasthan & Ors.

M.N Bhandari, J.:— By these writ petitions, a challenge is made to the order, by which, the petitioners were transferred from one set up to another, i.e, from Panchayati Raj Department to Education Department.

2. Learned counsel submits that petitioners were appointed in pursuance to the selection made by Panchayati Raj Department as per the provision of Rajasthan Panchayati Raj Act, 1994 (for short “Act of 1994”) and Panchayati Raj Rules, 1996 (for short “Rules of 1996”). In view of the above, their services were not liable to be transferred under different set of rule. It is moreso when, no provision for it exists.

3. A reference of provision of the Act of 1994 and Rules of 1996 respectively has been given to show mode of appointment of the petitioners on the post of Teacher Gr.III Looking to the aforesaid, it is prayed that impugned order may be set aside.

4. It is also stated that on account of change of set up, the petitioners would be brought under the Rajasthan Educational Subordinate Service Rules, 1971 (for short “Rules of 1971”). It will affect their seniority position. It is for the reason that after appointment under Panchayati Raj Department, they obtained their seniority position within the number of teachers working in the Department at the district level. By bringing them from Panchayati Raj Department to Education Department, they would be affected because merging in a bigger group will demolish their further chance of promotion on account of change in seniority. In view of the above, their existing rights would also be affected.

5. In few petitions, a challenge is made even on the ground of violation of seniority in giving effect to Rule 6D of the Rules of 1971. It is stated that person senior to the petitioners have been kept in the Panchayati Raj Department while transferring the junior person in violation of Rule 6D of the Rules of 1971, thus for the aforesaid reason also, the impugned order deserves to be quashed.

6. Learned Additional Advocate General Mr. SK Gupta has contested the cases. It is submitted that Rule 6D of the Rules of 1971 permits appointment by way of transfer of teachers of Panchayat Department. The impugned order has been passed by invoking the said provision. It was done in order of seniority of the employees. The senior most teachers have been transferred under the Rules of 1971, thus it is incorrect to say that there exists violation of seniority while passing the impugned order. It is also stated that Sub-section (9) and (10) of Section 89 of the Act of 1994 permits appointment by the method provided under the Rule 6D of the Rules of 1971. It is not only that employees of Panchayati Raj Department can be transferred in the State Service but the employees of the State Service can also be transferred to the Panchayati Raj Department. In the light of the aforesaid provision, it is not correct to state that an employee of the Panchayati Raj Department was not liable to be transferred for appointment under the State Service. The impugned order has 5 been passed as the State Government made appropriate provision for appointment by transfer of the teachers of Panchayati Raj Department under the Rules of 1971, thus impugned order has been passed with sanctity of law.

7. Coming to the reasons of transfer, it is submitted that teachers in the Panchayati Raj Department work at the level of primary and upper primary school only as and when a school is upgraded to secondary to senior secondary and comes under the Rules of 1971, the teachers, working in the Panchayati Raj Department, need to be appointed or absorbed under the Rules of 1971 to provide sufficient number of teachers in upgraded school.

8. It is stated that in recent past, certain schools were upgraded and by virtue of it, there was a necessity to pass the order of transfer for appointment of the teachers of Panchayati Raj Department in the Education Department. The impugned order is thus passed for justified reasons and in the administrative exigency. In absence of order of transfer, there would be scarcity of teachers under the Rules of 1971 after up gradation whereas there may be cases where teachers may became excess in Panchayati Raj Department. In the background aforesaid, the impugned order has not been passed by the State Government arbitrarily but for the justified reasons.

9. It is lastly contended that while making transfers for appointment under the Rules of 1971, the seniority has been taken into consideration. The senior most teachers have been transferred for appointment under the Rules of 1971. While doing the aforesaid also, care was taken to transfer the employees either to a school nearby or in the same school so as to cause least disturbance to them. By virtue of the impugned order, none of the petitioners are going to be suffered either in seniority or in the pay-scale. Their service benefits would not be affected in any manner by virtue of the impugned order for appointment under the Rules of 1971.

10. The petitioners have shown apprehension regarding seniority. It is by showing their transfer from small set up to bigger set up. The illustration aforesaid has been given without actual figures and otherwise, without realising that as and when next promotion is made to the post of teacher Gr.II and further promotion, common seniority list is drawn and based on it only, promotions are made. While the petitioners are transferred from one set up to another, their seniority would be reckoned from the date of initial appointment except in those cases where transfer is sought by the employee himself effecting his seniority due to placement in the bottom of the seniority, thus the impugned order is not going to affect any of the service benefits of the petitioner. Looking for all the reasons, the writ petitions may be dismissed.

11. I have considered rival submissions of the parties and scanned the matter carefully.

12. It is not in dispute that petitioners were appointed by the Panchayati Raj Department under the Act of 1994 and Rules made thereunder. Sub-sections (9) and (10) of Section 89 of the Act of 1994, however, provides for appointment in State service and for ready reference, the aforesaid provisions are quoted hereunder:

“(9) Persons holding posts encadred in the service shall also be eligible for appointments or promotion to posts in a State Service or under the State Government in accordance with the rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or promoted shall count the period of their holding posts in the service constituted under this section for the purpose of seniority and pension.

(10) Persons holding appointment in a State Service shall also be eligible for appointment by transfer to a post encadred in the service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.”

13. As per Sub-section (9) of Section 89 of the Act of 1994, the persons holding posts encadred in the services are eligible for appointments or promotion to posts in a State Service.

14. According to the petitioners, it only gives eligibility and does not provide for their appointment by transfer. I am unable to accept this argument. When a candidate is held eligible for appointment in the State service yet cannot be appointed if a rule is made by the Government. Rule 6D of the Rules of 1971 provides for appointment and promotion. Therein, option is not required to be sought from the employee and if it is taken then, proviso 1 to the Rule 6D of the Rules of 1971 cannot be adhered to. The said rule is not under challenge, thus has to be given effect. In the light of the aforesaid, when Rule 6D of the Rules of 1971 provides for appointment of the persons of Panchayati Raj Department, the impugned order cannot be nullified on the ground raised by the learned counsel for the petitioners. It is moreso when Sub-section (10) of the Section 89 of the Act of 1994 provides appointment from State Service to Panchayat Service as well. It is by way of transfer, thus conjoint reading of Subsections (9) and (10) of Section 89 of the Act of 1994 shows that appointment from Panchayati Raj Department to State Service and vice versa can be made by way of transfer.

15. Learned counsel for the petitioners could not show any provision, which imposes bar for inter se transfer from Panchayati Raj Department to Education Department. It is no doubt true that petitioners' initial appointment was in a particular set up but the provisions of the Act of 1994 so as the Rules of 1971 permit appointment of persons working on the encadre post, thus this Court should not interfere in any of the order passed in consonance thereof. It is moreso when, the transfer is not going to affect service benefits of the petitioners in any manner.

16. It is admitted by learned Additional Advocate General Mr. SK Gupta that seniority of the petitioners would be maintained from the date of appointment while effecting the impugned order except in those cases where the transfer is sought by the employee at his/her own effecting seniority. In view of the above, even if the petitioners are transferred from one set up to another, they would not loose seniority, rather it would be maintained, as explained above. Their pay and other emoluments would also be kept intact. In the background aforesaid, the impugned order is not going to affect any service benefits available to the petitioners at present.

17. The respondents have further given justification for passing the order.

18. It is stated that in recent past, many school from the level of primary and upper primary have been upgraded. The teachers of the Panchayati Raj Department are kept up to the level of upper primary school. Once, upper primary school is upgraded to Secondary or Senior Secondary, it has to be maintained by Education Department. The teachers working at the level of primary and upper primary, have to be governed by the Rules of 1971, if they are continued in the upgraded schools and otherwise, they became extra in Panchayati Raj Department. In view of the above, a teacher working under the same school is transferred under the Rules of 1971 to continue them at the same place to save their displacement. It is to have least disturbance of the teachers even after up-gradation of the schools and smooth working of the schools. It is further a fact that if the schools are upgraded and by virtue of it, it is brought under the Rules of 1971 requiring number of teachers equivalent to the post therein, then after up-gradation, there would be scarcity of the teachers at the level of Secondary and Senior Secondary whereas Panchayati Raj Department may have excess teachers at the place after upgradation of the schools. In the background aforesaid, I find even justification in the action of the respondents.

19. The only question now remains about compliance of the Rule of 6D of the Rules of 1971 and more specifically first proviso.

20. The allegations have been made that the persons junior have been transferred in ignorance to the provision. It is admitted by learned Additional Advocate General that when Rule 6D of the Rules of 1971 is to be invoked, the appointment by transfer is to be made in order of seniority. The petitioners have shown violation of seniority, thus needs consideration and requires an appropriate direction.

21. Accordingly, while not interfering in the impugned order for the reasons given above, the writ petitions are disposed of with the direction to the respondents to look into the seniority of all teachers, so transferred. If any senior teacher is left out and at the same time, junior teacher has been transferred, then they are directed to correct the order within a period of four weeks from the date of receipt of copy of this order.

22. It is made clear that compliance of the directions given by this Court would be made in strict terms and while revising the list, if so required. It would be in strict adherence to the provisions of Rule 6D of the Rules of 1971 and in future also, similar exercise would not be taken in violation of the said rule, otherwise the Department is directed to fix the responsibility of the officer concerned so that litigation may not come on account of violation of Rule 6D of the Rules of 1971.