Panchayati Raj Department Can Accord Post-Facto Consent For Transfers But Employees With Extenuating Situations Must Be Heard: Rajasthan HC
While hearing a bunch of petitions challenging transfers of the Panchayati Raj Department, Rajasthan High Court ruled that the requirement of taking consent from the Panchayati Raj Department for such transfers as envisaged under the Rule 8(iii) of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (“the Rules”) was not necessarily pre-facto and was fulfilled even if...
While hearing a bunch of petitions challenging transfers of the Panchayati Raj Department, Rajasthan High Court ruled that the requirement of taking consent from the Panchayati Raj Department for such transfers as envisaged under the Rule 8(iii) of the Rajasthan Panchayati Raj (Transferred Activities) Rules, 2011 (“the Rules”) was not necessarily pre-facto and was fulfilled even if the consent was taken post-facto.
“No doubt, the approval of the Secretary of Panchayati Raj Department is ex-post facto but the same per-se does not vitiate the requirement of seeking consent in terms of Rule 8(iii) of the Rules of 2011. The compliance envisaged in Rule 8(iii) of the Rules of 2011 does not necessarily have to be prior to passing of the orders. Many a time, the administrative exigencies are such that based on verbal deliberation, administrative orders are passed, subject of course to the post-facto written approval.”
The bench of Justice Arun Monga further opined that it was not necessary to convey such approval to the transferee. However, if the transfer was not approved by the Panchayati Raj Department, it had to be conveyed in writing, both to the department where the services of such officials were deputed and to the official, to enable him to take appropriate remedy in accordance with law.
On the other hand, the Court also observed that there were many transferred petitioners who had voiced severe hardships owing to such mass transfers with no application of mind, without any considerations to their difficulties. The Court held that,
“The competent authority must ensure that transferred employees are given a fair chance to present their case, especially when extenuating circumstances exist—be it terminal illness, widowhood, divorce, extreme relocation hardships, imminent superannuation, or maternity-related pre or post-natal challenges. In these deserving cases, anything short of a humane and compassionate approach would be a grave injustice. Thus, in the deserving cases humanitarian outlook must be adopted.”
These bunch of petitions were segregated in three categories by the Court- 1) Alleged violation of Rule 8 (ii) of the Rules contending that the District Establishment Committee of the Zila Samiti had not passed the order while transferring them from one Panchayat Samiti to another; 2) Alleged violation of Rule 8(iii) of the Rules stating the no prior consent of the Panchayati Raj Department was taken; 3) Alleged violation of Rule 31 of the Rajasthan Scheduled Areas Subordinate, Ministerial and Class-IV Service (Recruitment and other Service Conditions) Rules, 2014.
After perusing the records, the Court accepted the allegations raised by first set of petitions and the respective transfers were set aside. The third set of petitions were found to be unnecessary to be adjudicated pursuant to certain submissions by the State regarding revisiting such transfers.
Regarding the second set of observations, the Court rejected the argument raised by the petitioners of the requirement being of prior consent and made the above-mentioned observations based on the Rajasthan High Court case of State Of Rajasthan v Rekha Kumari in which it was ruled that once the consent of the Panchayati Raj Department was obtained, be it pre or post ex-facto, the requirement of Rule 8(iii) was fulfilled.
And since it was found, based on the official administrative note-sheet presented by the State, that the requirement was fulfilled, no interference was deemed right in such transfers.
Finally, the Court highlighted certain petitions that reflected extreme hardships being faced by the transferees which were overlooked by the State, and directed the State to not implement such transfer orders and endeavor to post such people within same district or in the vicinity.
Accordingly, the petitions were disposed of.
Title: Rajesh Sharma v State of Rajasthan & Ors. and other connected petitions
Citation: 2025 LiveLaw (Raj) 54