ROHATSH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These writ petitions have been filed by the petitioners aggrieved against orders dated 01.11.2018 (Annexure-P/5), dated 05.02.2019 (Annexure-P/6) and dated 08.02.2019 (Annexure-P/7) with all consequential benefits, whereby, the Collector has sent the petitioners-Patawaris under Land Settlement Officer, the order dated 01.11.2018 has been modified and two names of Patwaris have been replaced by other Patwaris and the Land Settlement Officer, Bikaner has allotted villages/chak and directed undertaking of the survey/re-survey work, respectively. It is, inter alia, indicated in the writ petitions that petitioners participated for direct recruitment on the post of Patwari, were selected and were allotted district Hanumangarh. Whereafter appointment order was issued by the District Collector, Hanuangarh on 06.10.2017. After undertaking the Patwar Cadre post training, the petitioners have been posted in various Patwar Mandals and are under probation for two years as is reflected from order dated 01.07.2018 (Annexure-P/2). It is further, inter alia, indicated that on 28.09.2018 a letter was issued by the Commissioner, Land Settlement, Rajasthan to various District Collectors indicating that the Digital India Land Record Modernization Programme ('DILRMP') is under progress, which is required to be undertaken in their Districts as per Chapter-7. The work if being executed by Ameen, which positions are vacant and, therefore, at least 15 Patwaris be sent on deputation for six months for undertaking survey/re-survey. Based on the said communication, the officer in-charge required the Tehsildar of various Tehsils under District Hanumangarh to name two Patwaris each for the said purpose, based on which, the Collector passed orders dated 01.11.2018, 05.02.2019 sending the petitioners under Land Settlement Department and required the concerned Tehsildars to relieve the petitioners. Whereafter by order dated 08.02.2019, the Land Settlement Officer allotted villages/Chak for the purpose of survey/re-survey to the petitioners. The petitioners by communication dated 12.02.2019 indicated that after giving presence in the Land Settlement Department they have been sent for survey work to Anoopgarh, which was against their wishes and, therefore, their deputation be stopped and they be accorded appropriate posting.

(2.) It is, inter alia, submitted that under Rule 141 of the Rajasthan Service Rules, 1951 no deputation could be made outside the cadre without taking the consent of the employee concerned and as no consent has been taken from the petitioners and order of deputation has been passed, the same deserves to be quashed. Further submissions have been made that petitioners have been appointed as Patwaris, the work of survey is to be conducted by the Land Settlement Department and as the petitioners are under probation, sending them on deputation is not justified. Submissions have also been made that the petitioners have selected a place of posting as per their merit and they have been sent to other districts, which is not permissible. A reply to the writ petition has been filed by the respondents, inter alia, indicating that the petitioners have not been sent on deputation from their parent department to the Land Settlement Department, they have just been sent for training for the survey/re-survey work. Further reliance has been placed on Clause (x) and (xi) of Rule 24A of the Rajasthan Land Revenue (Land Records) Rules, 1957 ('Rules of 1957') to submit that the work being assigned to the petitioners is well within the purview of their duties. Submissions have been made in the reply seeking to emphasize the importance of the DILRMP. Reliance has also been placed on Rule 34 of the Rules of 1957 in this regard. Rest of the averments made in the petitions have been denied/disputed and it is prayed that the writ petitions be dismissed. A rejoinder to the reply has been filed by the petitioners, inter alia, refuting the contents of the reply. It has been emphasized that the duties indicated under Rules 24A and 34 of the Rules of 1957 can only be asked to be done while working as Patwari. Further reliance has been placed on communication dated 22.04.2019 (Annexure-P/9) issued by the Joint Secretary of the Revenue Department, inter alia, indicating that the use of word 'deputation' in the previous communications was not appropriate and, therefore, the same is modified and it be indicated that the same may be treated as 'transfer' against the vacant posts of (^Hkwekid^) Bhumapak. Based on the said communication it is emphasized that the orders were issued for deputation and the plea raised in this regard in the reply that the petitioners were being sent for training is incorrect. Reliance has been placed on Rule 412 of the Rules of 1957 in relation to transfers of Patwari and it is reiterated that the action of the respondents in this regard is not justified. Whereafter, an additional affidavit has been filed placing on record an advertisement dated 11.06.2019 issued by the Land Settlement Commissioner calling upon the willing Patwaris to apply for posting for the purpose, for a period of three years. Based on the said additional affidavit submissions have been made that as the respondents by their own conduct have conceded the requirement to seek consent, the earlier orders passed in this regard deserve to be set aside.

(3.) An additional affidavit has been filed by the respondent State relying on a communication dated 08.07.2019 (Annexure-A/1) issued by the District Collector, whereby, the order dated 05.02.2019 (Annexure-P/6) has been modified and instead of indicating that Patwaris were sent under Land Settlement Officer, Bikaner, the same be read as that they have been transferred against the vacant posts of Bhumapak in the Land Settlement Department. It is claimed that by passing of the order dated 08.07.2019, the order dated 05.02.2019 is no more in existence and the petition has thus become infructuous. Further submissions have been made that the Land Settlement Department is part of the Revenue Department only and, therefore, any transfer of an employee from the Revenue Department to the Land Settlement Department would not be deemed to be a transfer to any Foreign Department so as to be in contravention to the RSR or Rules of 1957. A chart showing the hierarchy of the department has been placed on record as Annexure-A/2. Further submissions have been made that similar petitions have been rejected at Jaipur Bench. Further affidavit has been filed alongwith a communication dated 27.08.2019, inter alia, indicating that the transferred Patwaris would be posted for survey/re-survey in the same District, from which, they have been transferred and after the work of survey/re-survey is over, they would be transferred back to the Revenue Department in the same district. The said additional affidavit has been again contradicted by way of reply to the additional affidavit with the submissions that the respondents have been changing their stand from time to time. Alongwith affidavit two judgments in Hem Raj Bhavsar v. State & Ors. : S.B.C.W.P. No. 5819/2005, decided on 09.03.2006 and Inder Singh v. State of Rajasthan & Ors. : 2007 (1) WLC 728 have been annexed as Annexure-P/13. Learned counsel for the petitioner with reference to the provisions vehemently submitted that respondents have been taking a vacillating stand qua their action in sending the petitioners for survey/re-survey work, inasmuch as, initially it was claimed as training, which was changed to transfer and ultimately other Patwaris have been called upon to apply for the same work, for which, the petitioners are sought to be forcibly transferred and, therefore, the action of the respondents in this regard deserves to be set aside. Submissions have been made that reliance placed on the order passed at Jaipur Bench is misplaced, wherein, the order has been passed indicating that as the petitioners are under transfer and not on deputation without consent, the petition has been rejected, whereas, even the transfer is not permissible under law and, therefore, the writ petition filed by the petitioners deserves to be allowed.