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RADHA KISHAN versus STATE & ORS.

High Court of Rajasthan

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RADHA KISHAN v STATE & ORS. - CW Case No. 5063 of 2007 [2007] RD-RJ 4205 (27 August 2007)

S.B. CIVIL WRIT PETITION NO.5063/2007

(Radha Kishan Vs. State of Rajasthan & ors.)

Date of Order ::27th August 2007

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr.N.R.Choudhary for the petitioner ...

This writ petition has been preferred against the order dated 08.08.2007 (placed on record with additional affidavit as

Annex.6) passed by the Rajasthan Civil Services Appellate

Tribunal, Jaipur in Appeal No.1205/2007 whereby the Tribunal has proceeded to reject the appeal filed against the order dated 31.07.2007 (Annex.P/3 herein) issued by the respondent No.3 Collector (Land Records), Nagaur transferring the petitioner, working as Patwari, from Patwar

Circle Roon (Tehsil Nagaur) to Patwar Circle Tadawas (Tehsil

Khinvsar).

The transfer order was challenged by the petitioner before the Tribunal essentially on the grounds that he came on the present posting on 18.07.2005; that an order was made on 11.07.2007 whereby he was transferred to some other place but, by the order dated 21.07.2007, the said transfer order was cancelled; and that now a subordinate officer (the said Collector) has issued transfer order of the petitioner in disobedience of the order issued by the Government on 21.07.2007. The Tribunal has rejected the appeal with the observations that the appellant (petitioner) was working in

Nagaur District right from the beginning and has been at the present place of posting since the year 2005; that copy of earlier order dated 11.07.2007 was not produced on record; that the present transfer order could not be co-related with the order dated 21.07.2007; that it was not the case of the appellant that the transfer order was made by any officer not authorised to do so; and that it was not the right of the appellant to remain posted at a particular place. The Tribunal found that the order was neither mala fide nor in violation of any statutory provision and having been made in administrative exigency, called for no interference.

Now, by way of this writ petition against the order passed by the Tribunal, the order of transfer (Annex.P/3) and consequential order of handing over of charge dated 07.08.2007 (Annex.P/5) are sought to be challenged on the ground that the impugned transfer order has been passed at the instance of the higher authorities, as borne out from the order issued by the Secretary to the Government on 11.07.2007 (Annex.P/1) and that issued by the Divisional

Commissioner, Ajmer on 13.07.2007 (Annex.P/2).

It has been strenuously contended that the order has been issued in gross violation of statutory provisions inasmuch as the Collector has proceeded to transfer the petitioner at the instructions of other authorities; and with reference to the decision by the learned Single Judge of this Court in the case of Inder Singh & Anr. Vs. State of Rajasthan : 2007 (1) WLN 728; and Division Bench decision in D.B. Civil Special Appeal

No.871/2006: Kishan Singh & Ors. Vs. State of Rajasthan, decided on 24.01.2007, it is contended that the transfer of the petitioner by the Collector at the instructions of other authorities remains illegal and deserves to be quashed. It has further been contended by the learned counsel for the petitioner that while issuing directions on 13.07.2007

(Annex.P/2) the Divisional Commissioner sent a list of the employees to be transferred wherein name of the petitioner was mentioned at Sl.No.55; and such list has not been supplied despite demand. Learned counsel submitted, with reference to the orders passed by this Court in various other writ petitions staying the transfer orders of Patwaris that were challenged on the ground that they were made at the instructions of other authorities, that the case of the petitioner stands at the same footing and impugned order of transfer deserves to be stayed. Learned counsel further submitted that in any case, the order of handing over of charge (Annex.P/5) deserves to be stayed.

Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner and having gone through the material on record this Court is clearly of opinion that for its fact situation and for the stand taken by the petitioner, this writ petition does not merit admission; and the case of the petitioner cannot be treated at par with other matters wherein challenge to transfer orders in relation to other persons working as Patwaris has been taken up for consideration by this Court particularly with reference to the ratio of Inder Singh and Kishan Singh (supra).

In the case of Inder Singh the Hon'ble Single Judge of this Court has found that the impugned transfer orders were in violation of the requirements of the Rule 9 of the Rajasthan

Land Revenue (Land Records) Rules, 1957 (`the Rules of 1957'); and it was found that power of transferring a Patwari vests exclusively in the Collector of District and impugned transfer orders not founded on any satisfaction of the Collector but having been made at the directions of the minister or higher authority were unauthorised and in violation of statute and, thus, were quashed. The Hon'ble Division Bench while considering the appeals against the said order made by the learned Single Judge has approved that part of the decision of the learned Single Judge whereby such transfer orders made contrary to the requirements of Rule 9 were held to be illegal.

It is a different matter that the Hon'ble Single Judge did not consider it proper to quash the earlier orders of transfer in relation to the writ petitioners that were also pointed out to have been made in violation of the Rules; and the Hon'ble

Division Bench found that such illegality qua the writ petitioners could not have been perpetuated either; and, therefore, the Hon'ble Division Bench allowed the appeals to that extent that the orders issued in favour of the writ petitioners were also held vitiated and the writ petitioners as well as the appellants before the Division Bench were ordered to return to their original places of posting. The proposition of law has been stated by the Hon'ble Division Bench thus:

"Under the Rules, power to transfer patwaries have been conferred specifically on

Collector of District, where transfers are to be made from one Patwar Circle to another within the District. The circumstances and manner in which a patwari is to be transferred have also been prescribed by the rules. The importance of continuity of patwari at the place in the interest of maintenance of land records is too obviously reflected in provision that even when he is transferred to other circle, the transfer orders does not become effective until the concerned patwari has completed the record in hand.

Where a statute provides the authority who has to act on conditions under which he has to act, such action can be taken only by such authority and on fulfillment of conditions under which he has been authorised to act, is a principle so well ingrained in system that it needs hardly any elaboration.

We are, therefore, of the opinion that it is not a case of merely allowing the restoration of illegality but allowing the illegal action taken by the Collector at the behest of Ministry of Revenue which had no business to act in derogation of law.

If the rule of law prevails in respect of citizen, it also governs the action of the Government authorities and the persons in power. No one is above law howsoever high he may be. The law does not permits any other authority than prescribed under the Rules to usurp that power and subject the statutory authority to act under their dictates".

Thus, with the aforesaid decision, the proposition is required to be taken as settled that if any transfer order of

Patwari is made by the Collector at the behest of any other authority, the same cannot be countenanced; and prima facie noticing that the orders impugned in several other cases have been made with bold preface that the same were being issued in pursuance of and in compliance of the orders issued by the

Secretary to the Government or by the Divisional

Commissioner, this Court has found the matters worth consideration.

However, in the present case not only the situation is different; the stand of the petitioner has been rather converse.

The petitioner challenged the transfer order dated 31.07.2007 before the Tribunal, inter alia, with the following averments:-

" 3 (0 0) ! 2

( 21-7-2007 ()-2)

* , . .

( 31-7-2007 2 3 5 5, 2 . 5 2 5 3

* 5 3 2 "

The same argument was advanced before the Tribunal that the impugned transfer order has been made by the

Collector in disobedience of the order issued by the

Government on 21.07.2007 regarding which, the Tribunal has noticed that it was difficult to co-relate the said order dated 21.07.2007 with the order of transfer. The order dated 21.07.2007 that was annexed in the appeal before the

Tribunal as Annexure-2 has not been placed before this Court though a copy of memo of appeal has been filed along with the writ petition as Annex.P/4. Be that as it may, from the own showing of the petitioner the position emerges that the

Collector has not passed the transfer order on being influenced by any order of the Government.

It is obvious on the face of record that now, in order to rely upon the decisions of this Court in the cases of Inder

Singh and Kishan Singh (supra), the petitioner has taken a summersault in this writ petition and seeks to contend that the order has been made at the instance of other some authority.

Such shifting of stand cannot be countenanced. Moreover, the contention is not only contrary to the petitioner's stand before the Tribunal, it has no legs to stand on merits either.

As noticed above, in other cases this Court has noticed that the Collector concerned has issued the orders boldly prefacing the same to have been made at the instructions of other authorities. For example, in the order under challenge in Writ Petition No.4915/2007 (Jagdish Chandra Vs. State & others) the Collector concerned has issued the transfer order prefaced with the reason for passing of the order thus:

" 5 5 (,-1) 5 , , , .7(18) -1/2007 , 12.07.07 ? . ,, . .13 ( ) ./ 5/07/ 1194 13.07.07 * ? 5 D 5E 5

G 5 H / , 5 2 "

However, in the present case, the order impugned does not indicate from any angle that the Collector has made the same at the instructions of any other authority. The preface of the order impugned in the present case simply states,-

"G 5 H 5 2 "

Obviously, the ratio of Inder Singh and Kishan Singh

(supra) and even the propositions as stated by this Court while entertaining other writ petitions against the orders with the preface itself indicating the same having been made at the instructions of other authorities, do not have direct co-relation with the present case.

Faced with this situation, learned counsel for the petitioner strenuously contended that the Government and the

Divisional Commissioner did send lists of the persons to be transferred and the name of the petitioner was included therein. Apart from the fact that such lists have not been produced on record, even if the submission as made on behalf of the petitioner is taken to be correct, the same has no bearing on the matter for there appears no reason or basis to deduce from out of the order of the Collector dated 31.07.2007 (Annex. P/3) that the same was made only with reference to any such list forwarded to him. Mere forwarding of any list or any suggestion by any person or any authority cannot by itself lead to the inference that the Collector has not proceeded in accordance with law and has not passed the transfer order in valid and proper exercise of his powers under

Rule 9 of the Rules of 1957.

Learned counsel for the petitioner then made yet another submission that the respondent No.5 has been transferred at his own request and the order in question has obviously been made in order to accommodate him and this aspect is apparent from the note put at the bottom of the order impugned which clearly indicates that the said respondent

No.5 named at S.No.60 shall not be entitled for any travelling allowance or joining period. Learned counsel submitted that the meaning is obvious that the said respondent had been transferred at his own request and on this ground alone, the impugned order deserves to be quashed. Learned counsel referred to the observations made by the learned Single Judge of this Court in Inder Singh's case (supra) that a transfer of

Patwari should not be made to suit convenience of the individuals. Learned counsel relied on following observations: ''The requirements of Rule 9 of the Rules of 1957 to transfer a Patwari are further asserted and reiterated by Rule 412 of the Rules of 1957 to the extent that a transfer of Patwari is ordinarily undesirable and should not be made to suit convenience of individuals.

The submission aforesaid is, again, not well founded and cannot be accepted. The said Rule 412 makes the scheme of the Rules clear that ordinarily the transfer of

Patwari is considered undesirable and in that continuity, it is stated that the transfer should not be made to suit convenience of the individuals and can only be made under the conditions given in Rule 9 and such conditions are meant for strict observance; and it has also been enjoined that as far as possible, Patwaris picked out for transfers may be exchanged with one another and that transfer should not be taken as a substitute for punishment. In the first place, no prohibition on transferring a Patwari at his request is spelt out in the aforesaid rule as such nor this Court has ruled in Inder

Singh's case that a Patwari's request can never be taken into consideration while the Collector concerned makes a transfer order. What is contemplated is the ordinary desirability of the aspects to be kept in view while effecting transfers under

Rule 9 of the Rules of 1957. However, for that matter, for the sake of arguments even if it be assumed that the Collector concerned has also kept the request of a particular Patwari in mind while making the arrangement of Patwaris within his

District, it cannot be said that the transfer order stands vitiated for violation of any statutory requirement; and then, there is no material to infer that the impugned transfer order has been made only to suit the convenience of the respondent No. 5.

The present petition lacks in basic material to connect with it with the ratio of Inder Singh and Kishan Singh (supra); and, as noticed, the stand of the petitioner before the Tribunal has been directly at loggerheads with the proposition now sought to be relied upon in this writ petition. There appears no reason to interfere with the transfer order in this case.

The suggestion that the order of handing over of charge as issued by the Tehsildar on 07.08.2007 may be interfered with is entirely baseless for the said order has been issued by the Tehsildar only as a consequence of the transfer order passed by the Collector; and the said order passed by the

Collector, as noticed, calls for no interference.

Moreover, in this writ petition filed against the order dated 08.08.2007 passed by the Tribunal, nothing is made out calling for interference in the said order dated 08.08.2007.

Learned counsel lastly made a submission that the

Tribunal has not looked into the record of the case and has made strange observation that according to the petitioner some departmental proceedings were pending although such was never the case of the petitioner. It is true that such observations do occur in the impugned order Annexure P/6 but the same could only be ignored as being of an obvious error while incorporating the arguments. Such aspect remains beside the point; and has no bearing on the merits of the case.

The petition fails and is, therefore, rejected.

(DINESH MAHESHWARI),J. s.soni


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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