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Bansi Lal Parihar v/s State of Rajasthan & Others

    Civil Writ Petition No. 7628 of 2010

    Decided On, 10 January 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE GOPAL KRISHAN VYAS

    For the Petitioner: Manoj Bhandari, Advocate. For the Respondents: Hemant Chaudhary, D.S. Rajvi, Advocates.



Judgment Text

1. Today, this writ petition is listed in the Court upon application filed under Article 226 (3), Constitution of India. With the consent of the parties, however, arguments for final disposal have been heard.

2. In this writ petition, the petitioner has prayed for quashing transfer order Annex.-6 dated 03.08.2010, whereby, the petitioner, who was working as Patwari at Patwar Mandal Shobhasar, Colonization Tehsil Kolayat No.1, was transferred to Patwar Mandal-B, Colonization Tehsil Ramgarh No.2 (District Jaisalmer).

3. Main contention of the petitioner is that impugned2 transfer order is in violation of provisions of the Rajasthan Land Revenue (Land Records) Rules, 1957. While inviting attention towards Rule 9(2) and Rule 412 of the Rules of 1957, it is submitted that before transferring the petitioner, the competent authority which is Commissioner, Colonization was to satisfy itself that such transfer is 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. Further, while inviting attention

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of the Court towards Rule 412 of the Rules of 1957, it is submitted that as per the said rule duty is cast upon the competent authority which is Collector/Commissioner for appointment, transfer and discipline of the Patwaris. It is further provided in the said rule that transfers of Patwaris are ordinarily undesirable and should on no account be made to suit the convenience of individuals though such transfers 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 not3 contemplated by law. Moreover, a transfer is hardly a substitute for punishment.

4. In addition to the above contention, learned counsel for the petitioner submitted that earlier vide Annex.-1 the petitioner was transferred from Colonization Tehsil Kolayat No.1 Amarpura B to Colonization Tehsil Ramgarh No.1 (District Jaisalmer); but, that order was cancelled and petitioner was ordered to be transferred again vide order dated 15.10.2009 from Colonization Tehsil Kolayat No.1 Amarpura B to Shobhasar in same Colonization Tehsil vice one Jeevan Ram and that order was challenged by Jeevan Ram before this Court in S.B. Civil Writ Petition No.9989/2009, in which, petitioner Jeevan Ram obtained stay order granted by this Court, therefore, upon the aforesaid reason, the petitioner was given posting in Colonization Tehsil Kolayat No.1 at Patwar Mandal Bhaluri B where the petitioner joined duties. Thereafter, vide Annex.-4 dated 04.12.2009, the Revenue Board passed order for transfer of the petitioner from Colonization Tehsil Kolayat (District Bikaner) to Jaisalmer district but that order was not executed and petitioner was adjusted at Patwar Mandal Shobhasar vide order dated 24.02.2010 passed by4 the Commissioner Colonisation, Bikaner where the petitioner was working.

5. Contention of the petitioner is that vide order Annex.- 6 (impugned in this writ petition), at the request of respondent No.3 Narendra Singh Rajawat petitioner has been ordered to be transferred from Colonization Tehsil Kolayat No.1 (Bikaner) to Colonization Tehsil Ramgarh No.2 (in Jaisalmer district) in place of respondent No.3 Narendra Singh Rajawat and Narendra Singh Rajawat has been transferred at the place of posting which the petitioner was holding. Said order is under challenge in this writ petition.

6. Learned counsel for the petitioner contended that upon perusal of impugned order Annex.-6, dated 03.08.2010, it reveals that this order has been made at the request of respondent No.3 Narendra Singh Rajawat without recording satisfaction by the competent authority as per Rule 9(2) of the Rules and, so also, it is in contravention of Rule 412 of the Rules, therefore, impugned transfer order deserves to be quashed because it is in violation of the statutory provisions.

7. Per contra, learned counsel appearing for respondent No.3 submits that the transfer order dated 03.08.2010,5 impugned in this writ petition, has been passed while taking into consideration provisions of Rule 9(2) and Rule 412 of the Rules of 1957. Prayer of respondent No.3 was accepted on medical grounds and it is felt necessary after due satisfaction by the competent authority Commissioner Colonization that transfer of respondent No.3 is desirable, therefore, the transfer order is in consonance with the provisions of the Rules of 1957.

8. Learned counsel appearing for the State, Shri Hemant Chaudhary submits that transfer is incidence of service and as per provisions of the relevant rules such transfer is to be made in accordance with Rules 9(2) and 412 of the Rules of 1957. Therefore, in this case, while taking care and making compliance of the provisions of the rules the impugned transfer order has been passed, in which, there is no illegality. The Commissioner Colonization who has passed the transfer order satisfied himself prior to passing said order as per provisions of Rule 9(2) of the Rules and, so also, there is power left with the competent authority to pass the order in accordance with Rule 412 of the Rules of 1957 with certain restrictions.

9. While inviting attention towards the judgment reported in 2010 (3) WLC (Raj.) 678, Suresh Jain v. State of Rajasthan and Others, it is submitted by Mr. Hemant Chaudhary, counsel for the State, that for transfer of Patwari from one Colonization tehsil to another Colonization tehsil it is not necessary for the transferring authority to record its own satisfaction because making of transfer of an employee is not judicial or quasi judicial exercise of power but it is discharge of administrative function, therefore, this writ petition is devoid of merit and deserves to be dismissed.

10. After taking into consideration entire facts and circumstances of the case, I have perused Rules 9 and 412 of the Rules of 1957, which read as under :

"9. Transfers.-(i) 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 Offices 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 Patwaris of that district.7

(ii) Transfers of patwaris 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. The unsatisfactory work or conduct of a Patwari should not be 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 account 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 transfer, 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."

11. Upon perusal of the above rules, it is abundantly clear that there in no complete restriction imposed upon the competent authority having jurisdiction to transfer Patwaris. The only embargo is that the competent authority should8 satisfy himself that there are reasons for transfer. In this case, the petitioner was given posting at Shobhasar vide order dated 23.10.2009 because the earlier transfer order dated 15.10.2009 was stayed by this Court upon the writ petition filed by Jeevan Ram. Further, after stay granted by this Court in the case of Jeevan Ram, request was made by the petitioner which is evident from Annex.-R/3/1 that not only for the reason that stay order was granted in the case of Jeevan Ram upon order dated 15.10.2009, another prayer was made by the petitioner that he is suffering from slip-disc disease, therefore, while considering his medical condition the petitioner was given posting at Shobhasar.

12. Now, vide the impugned order Annex.-6, the competent authority has considered the prayer of respondent No.3 on medical ground and passed impugned order dated 03.08.2010, whereby, respondent No.3 has been transferred in place of the petitioner and petitioner has been transferred to Colonization Tehsil Ramgarh. In my opinion, both petitioner and respondent No.3 sought transfer on medical grounds and, after satisfying, prayer of both persons was accepted by the Commissioner. The reasons for transfer are not required to be recorded because9 only satisfaction by the competent authority is necessary as per the rules.

13. It is also obvious that transfer is incidence of service and while exercising administrative power, the transferring authority is required to take into consideration all the facts and circumstances. In this case, both petitioner and respondent No.3 made request on medical ground and, upon satisfaction by the competent authority that transfer order is necessary on medical ground, earlier order dated 24.02.2010 was passed upon the request of the petitioner and, now, Annex.-6 has been passed upon the request of respondent No.3. In both the orders, the competent authority has applied its mind, in which, there is no illegality; but, at the same time, the competent authority cannot post both the persons at one place of posting, therefore, this writ petition deserves to be partly allowed in following terms :

(A) Respondent No.3 Narendra Singh Rajawat may be allowed to work at Colonization Tehsil Kolayat No.1 in Patwar Mandal Shobhasar in pursuance of order impugned dated 03.08.2010.

(B) The Commissioner, Colonization, Bikaner is directed to consider the case of the petitioner also to post him in Bikaner district and appropriate orders may be passed within a period of 15 days from the date of receipt of certified copy of this order.

Ordered accordingly.

The writ petition is partly allowed in aforesaid terms.

Petition partly allowed.
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