Ex-Post Facto Consent Of Panchayati Raj Institution For Transfer Of Medical & Health Dept Employees Serving With It Valid: Rajasthan HC

The court was hearing a batch of 91 State-appeals against a single bench order which held that state's decision to itself pass transfer orders without seeking the consent of the Panchayati Raj Department cannot be countenanced.

The basic controversy involved was whether employees, whose parent cadre is Medical and Health Department and whose services have been provided to the Panchayati Raj institution, can be transferred without following procedure laid down under Rule 8.

The said rule stipulates that the department concerned can issue orders for transfer from one district to another district with the consent of the Panchayati Raj Department.

During the pendency of appeals, the state's counsel informed the court that a proposal was moved to grant ex-post facto sanction.

Reliance was placed on coordinate bench decisions in State of Rajasthan & Ors. v. Mool Shankar and State of Rajasthan & Ors. v. Krishna Devi, whereby it was held that while effecting inter-district transfers of the employees transferred to the Panchayati Raj Department, the powers are retained by the department concerned, but in all such cases, the consent of the Panchayati Raj Department has to be obtained. It was held that there was no limitation or inhibition under the Rules by virtue of which, the ex post facto consent of the Panchayati Raj Department can not be obtained.

Accordingly, a division bench of Justice Sandeep Mehta and Justice Kuldeep Mathur, while allowing the appeals and reversing the singh bench order, observed,

"As a consequence of the above development, we are of the view that the Panchayati Raj Department has lawfully granted ex-post facto sanction as per the requirement of Rule 8 of the Rules of 2011 to validate the questioned transfer orders."

The court rejected the contentions of the counsel for the respondent employees that ex-post facto consent does not relate to the transfer orders at hand because the date mentioned in the office note is 22.11.2021. The court opined that the contention is not tenable for the simple reason that this date refers to the distribution of departments amongst the Ministers, whereby independent charge of Medical and Health Services coming under the purview of Panchayati Raj Department was assigned to Shri Parsadi Lal Meena, the Minister for Medical and Health Services.

Further, the court observed that the action so taken is compliant of the view taken by the Division Bench in the case of Mool Shankar (supra) and hence, the requirement of consent of the Panchayati Raj Department for effecting transfers of the transferred employees of the Panchayati Raj Department has been satisfied.

AAG Karan Singh Rajpurohit with Adv. Rajat Arora appeared for the appellants while Advocates Mr. R.S. Choudhary, Mr. Vikas Bijarnia, Mr. Yashpal Khileree, Mr. K.R. Saharan, Mr. S.K. Poonia and Mr. Surya Prakash on behalf of Mr. Tanwar Singh appeared for the respondents.

Case Title: State Of Rajasthan & Ors. v. Rekha Kumari and other connected matters

Citation: 2022 LiveLaw (Raj) 221