Rajasthan High Court Sets Aside Transfer Orders Of 198 Panchayat Officials, Issues Guidelines For Autonomy Of Local Self-Governing Bodies

In a notable decision, the Rajasthan High Court halted the transfer orders of numerous Panchayat officials, citing serious breaches of statutory provisions under the Rajasthan Panchayati Raj Act, 1994, and its related rules.

The Court has issued guidelines for the transfer of Panchayat officials of various ranks, emphasizing the importance of local bodies' autonomy and the need to strengthen grassroots democracy.

The petitioners, including Kera Ram, a Gram Sewak and Village Development Officer, contested their transfer orders issued by the State Government and other administrative officials. They claimed that the transfers violated the Rajasthan Panchayati Raj Act, and the associated rules. According to the petitioners, the transfers were executed without proper authority and failed to adhere to the mandatory procedures, such as the required consultations and approvals.

Justice Arun Monga, presiding over the case, stated, “Interference of the State Government, where necessary, is no doubt legally permissible as all pervasive powers have been given to it under the Act but at the same time it should not amount to completely taking over the powers of self governance vested with the Panchayats to make the latter as completely redundant.”

“Trite law it is that the non obstante clause essentially connotes that it shall have over riding effect and shall take precedence over any other clause and shall prevail in the event of any conflicting provision. However, here is a case where in the absence of any conflict, powers have been invoked in routine and massive transfer drive has been carried out by transferring as many as more than 885 Panchayat Officials without even first letting the elected Panchayati bodies to carry out the said exercise. The intent of non obstante clause to ensure clarity and consistency in the application of law seems to have been thus misused by colorable exercise of powers,” Justice Monga added.

The Court emphasized that the decentralized exercise of power must be balanced to avoid governmental overreach, thereby preserving the autonomy and effectiveness of Panchayati Raj institutions.

“The State Government's role should primarily be one of general oversight rather than direct interference. 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. State Government officials must respect the constitutional mandate under Article 243 and subsequent amendments (Articles 243A to 243O),” the Court stated.

Questions Of Law:

The Court formulated following questions of law:-

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?

2. Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?

3. Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad? 4. Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?

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?

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?

Answering the first question, the court stated that if the transferring authority is unaware of the required destination of the transferred official, the motive for transfer becomes questionable. The court further asserted, "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."

Addressing the second question, the court noted that a superficial reading of Section 89(8)(ii) might suggest that "consultation" does not equate to "consent," making the provision seemingly advisory rather than mandatory. The court 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 Court added while ansering the question in negative.

In response to Questions 3 and 4, the court referred to Rule 289 of the Rajasthan Panchayati Raj Rules, 1996. Generally, the court stated that the power to transfer lies with the Panchayat Samiti, Zila Parishad, or the State Government, and when there is disagreement between these bodies and the State, the power is delegated to the CEO/BDO/Vikas Adhikari to execute State Government instructions. But 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," the court added while answering both the questions in negative.

Answering the fifth question in the affirmative, the court stated, "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 within a Panchayat Samiti or Zila Parishad."

While dealing with the last question, the court emphasized that while the State Government holds overriding authority for issuing transfer orders, this power should not undermine the autonomy of Panchayati Raj Institutions. The court stated, "Striking a balance is essential to maintain the local bodies' autonomy and constitutional integrity. Thus, while the State has absolute power to issue transfer orders, this power should not be exercised in a manner that undermines the faith in democratically elected Panchayati Raj Representatives."

While concluding, in order to avoid needless litigation in future, the Court deemed it appropriate to frame/issue following guidelines in matters of transfer of Panchayati Raj officials of the rank of Village Development Officers/Assistant Administrative Officer/Gram Sewak/LDC/Junior Assistants/Junior Technical Assistant/Gram Vikas Adhikari :-

• District-Level Transfers: 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 .
• Consultation for Transfers: Transfers must be made only after consulting the Pradhan of the Panchayat Samiti.
• Zilla Parishad Transfers: Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad.
• State Overriding Power: The State can make transfers without consulting the Pradhan or the Pramukh.
• Intra-District Transfers: The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district.
• Inter-District and Intra-Zilla Parishad Transfers: 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.
• Section 89(8)(ii) of the Act, 1994 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.
• Scheme of 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.
• Under Section 89(8A) of the Act, 1994, 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.
• 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.
• 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.
• (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.

Accordingly, the petitions were allowed and the transfer orders of petitioners were set aside with liberty to pass them afresh, depending upon the administrative exigencies.

Case Title: Kera Ram v. The State of Rajasthan

Click Here To Read Judgement

Citation: 2024 LiveLaw (Raj) 100