Sobhag Mal Jain, J.
1. These appeals have been filed by the State of Rajasthan under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment dated December 3, 1980 of the learned Single Judge of this Court, who has struck down Sub-section (9A) of Section 86 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (here in after referred to as 'the Act').
2. Sub-section (9A) of Section 86, confers on the State Government the power:
(i) to transfer any member of the service, known as the Rajasthan Panchayat Samiti and Zila Parishad Service from one Panchayat Samiti to another Panchayat Samiti, whether within the District or outside it; and
(ii) To stay the operation of or cancel, any order of transfer made under Sub-section (9) of the rules made there under.
This Sub-section in Section 86 of the Act was inserted by the Rajasthan Panchayat Laws (Amendment) Act, 1966 which was published in the Rajasthan Rajpatra dated April 6, 1966. In exercise of the powers conferred by the provisions of this Sub-section, the Government directed certain transfers of employees from one Panchayat Samiti to another. Some of the employees affected by such transfers filed writ petition in this court under Article 226 of the Constitution and challenged the order of transfer passed against them and also prayed that Subsection (9A) of Section 86 of the Act may be declared ultra vires the Constitution of India. The writ petitions were filed in 1980. Besides the State of Rajasthan, the writ petitioners also impleaded as respondents the concerned Panchayat Samitis and Zila Parishads. A joint return was filed on behalf of the State, the Panchayat Samiti and Zila Parishads and the writ petitions were contested by them alleging, inter-alia, that the orders of transfer were passed, not on account of any malice but due to the exigencies of administration.
3. A batch of 29 writ petitions was heard and disposed of by the learned Single Judge by a common judgment dated December 3, 1980. All contentions, except the one relating to the validity of Sub-section (9A) of Section 86, have been decided by the learned Single Judge against the writ petitioners. The learned Single Judge has held:
That transfer order need not be a speaking order and the requirement for a speaking order cannot be insisted upon in the case of an order of transfer simpliciter, as contemplated by Section 86 Sub-section (9A) of the Act.'
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A perusal of the reply would show that although details and the reasons or circumstances leading to transfer were not given in each case but the respondents have consistently said that the transfers were made on account of administrative reasons and there was no malice against the petitioners. It would therefore, be unnecessary to examine each case and find out what were the reasons for transferring him. The transfers are made on administrative reasons and unless malafides are proved or it is shown that any extraneous considerations were responsible for same, the normal presumption were of administrative exigency and bonafides would hold the field.
The only argument, which prevailed with the learned Single Judge, is the one relating to the validity of Sub-section (9A) and on this aspect the learned Single Judge has held that this sub section was ultra vires, being hit by the vice of excessive delegation and also being in violation of Article 14 of the Constitution. As a sequel to this, the learned Single Judge struck down Sub-section (9A) and also quashed the orders of transfer of the writ petitioner. Aggrieved by this, the State of Rajasthan has filed the present appeals. The writ petitioners have been arraigned as respondent No. 1 before us.
4. In these appeals we are concerned with the sole question as to whether Sub-section (9A) of Section 86 of the Act, is ultra vires Article 14 of the Constitution and suffers from the vice of excessive delegation. Before we answer this question we may briefly refer to the scheme and the relevant provisions of the Act.
5. The first enactment to provide for the establishment of the Gram Panchayat at the village level was the Rajasthan Panchayat Act, 1953, which came into force on January 1, 1954. The Act, however, did not contain hierarchy in the Panchayat Administration. To this end, the legislature enacted the Rajasthan Panchayat Samiti and the Zila Parishads Act, 1959, in short 'the Act'. Consequential amendments were made in the Rajasthan Panchayat Act and two new statutory bodies namely, the Panchayat Samiti and the Zila Parishad were brought into existence. An appeal was provided to the Panchayat Samiti from the orders or directions of a Panchayat made under the Rajasthan Panchayat Act. The Panchayat Samiti was also conferred with jurisdiction to exercise general supervision over the affairs of the Panchayat. Turning to the provisions of the Act, Section 7 empowers the State Government to constitute a Panchayat Samiti for a Block to be declared Under Section 6. Under Section 23, every Panchayat Samiti is enjoined to perform the functions specified in the schedule and the State Government is empowered to entrust such other powers and functions to the Panchayat Samiti as are needed for carrying out the purposes of the Act. For each Panchayat Samiti a Vikas Adhikari and Extension Officer are to be appointed and Section 26 gives the power to appoint such officers to the State Government. Section 31 lays down that the strength of posts for a Panchayat Samiti shall be fixed by the State Government and the scales of pay, allowances and other conditions of service of,the persons appointed to such posts shall also be prescribed by the State Government. If a Panchayat Samiti thinks it necessary to create additional post, it can be done only with the prior approval of the State Government. Under Section 33, a Panchayat Samiti has been given the power to impose the levy, certain taxes but, if such a tax is on trades.callings, professions and industries, the same can be levied only subject to any general or special order of the State Government. Sections 34 to 38 deals with financial matters and the Panchayat Samiti Act under strict control of the State Government. Section 40 confers on the State Government the power to spend and remove the Pradhan, Up-Pradhan and any member of the Panchayat, Samiti, if they omit or refuse to carry out the orders of the State Government for the proper working of the Panchayat Samiti or abuse the powers vested in them or found guilty of mis-conduct in the discharge of their duties. Similar is the position in the Act as regards the Zila Parishads. Section 42 empowers the State Government to constitute a Zila Parishad for District. Section 46 prescribes the terms of the Zila Parishad as five years but the State Government is competent to extend the term from time to time by a period not exceeding 4 years in the aggregate. Section 53 entitles the District Development Officer to attend the meetings of the sub-committees of the Zila Parishad. Section 57 prescribes the powers and functions of the Zila Parishad. Sub-section (v) authorises the State Government to confer or entrust such other powers or functions on the Zila Parishad in relation to any development programme. Sections 62 to 65 deal with the finances of the Zila Parishads and District controls vests in the State Government in these matters. Section 66 empowers the State Government to cancel any resolution or order passed by a Panchayat Samiti and Section 66-A authorises it to fix the performance of any duty imposed upon it by or under the Act. Section 67 empowers the State Government to supersede or dissolve a Panchayat Samiti or Zila Pardshad. Section 74 enjoins a Panchayat Samiti to furnish its administrative report to the Zila Parishad and a Zila Parishad to the State Government. Sections 78 confers on the State Government the power to amend the schedule which contains the functions of the Panchayat Samiti. Under Section 79 the State Government is vested with the power to frame rules for carrying out the purposes of the Act. Under Section 80 of the Panchayat Samiti and the Zila Parishad have been empowered to make its bye-laws but these bye-laws do not take effect unless sanctioned by the State Government. Section 85 confers the power of the review and revision in the State Government to call for and examine the record of a Panchayat Samiti or a Zila Parishad to satisfy as to the correctness, legality or property of any decision or order passed therein. Sections 86 to 88 deals with the Panchayat Service and Section 89 prescribes the mode of disciplinary proceedings against the officers and servants of the Panchayat. The ultimate appeal in such matters lies to the State Government. Section 90 provides that if any dispute arises between two Panchayat Samitis or between the two Zila Parishads the same has to be referred to and decided by the State Government. Under Section 91, the State Government is given the power to pass any order which may be necessary for removing the difficulty which arises in giving effect to the provisions of this Act.
6. The aforesaid survey of the relevant provisions shows that while entrusting the Panchayat Samiti and the Zila Parishads with certain powers and functions, the legislature has prescribed effective control by the State Government over these bodies.
7. The foremost attack made on the constitutional validity of Subsection (9A) by the learned Single Judge is as under:
It is not difficult to find the reasons for amendment by introduction of Sub-section (9A). The obvious, patent reason appears to be that the Government wanted to usurb these powers and keep them with itself so that it can control and command dictate and order the local self Government institutions inspite of the tall claim of decentralisation and giving autonomy to the Panchayat Raj institutions.
The learned Single Judge seems to have proceeded with the impression that these bodies, namely the Panchayat Samitis and the Zila Parishads, enjoy absolute autonomy and any intervention by the State Government in their affairs is unwarranted. This assumption, to our mind, is wholly misplaced. Neither these bodies enjoy full autonomy nor the State Government is an alien. We have explored the provisions of the Act to emphasis that only a limited autonomy is given to these institutions and that too is hedged around with sufficient checks and controls by the State Government. The very object of the Act was to establish the hierarchy of administration, the basic unit being the Gram Panchayat, over it the Panchayat Samiti, still higher the Zila Parishad and at the appex the State Government The power conferred on the State Government by Sub-section (9A) is not something unusual out of proportion or de hors the scheme of the Act. The right to transfer member of the service is an important attribute of the Executive power and is considered essential to maintain efficiency and cleanliness in administration, The provisions of Sub-section (9A) are neither incompatible with Article 40 of the Constitution, nor an excessive delegation of legislative power.
8. The learned Single Judge has further held that sub Section (9A) of Section 86 gives arbitrary powers to the State Government which are unfettered and unbridled. According to the learned Single Judge the provisions of Subsection (9A) are liable to be struck down on the ground that the same are discriminatory and violative of Article 14 of the Constitution. The learned Single Judge has said:
Since it is against Article 40 of the Constitution and since no guidelines, principles or criteria can be spelt out from the Rajasthan Panchayat Samitis and Zila Parishads Act. 1959 and its provisions, there is no escape but to hold that the power of transfer given to the Government under Sub-section (9A) is unbridled, arbitrary, uncannalised, naked, unfettered and unlimited and by that, the Legislature has defaced itself and abdicated its functions to the Government, which is not permissible under Indian Constitution and more specially, Article 14 of the Constitution.
9. Here also, we do not subscribe to the view of the learned Single Judge that the power given to the State Government under Sub-section (9A) of Section 86 is arbitrary, unbridled or in any way unreasonable. Subsection (9A) confers two kinds of powers on the State Government:
[a] a positive power to transfer any member of the service from the Panchayat Samiti to another Panchayat Samiti whether within the same district or outside it, and
[b] a remedial jurisdiction to stay the operation of or cancel any order of transfer made under Subsection (9) by the District Establishment Committee or the Selection Commission.
We may at this stage set out Section 86 of the Act, including Subsection (9A), which reads as follows:
86. Constitution of Rajasthan Panchayat Samiti and Zila Parishad Service-(1): There shall be constituted for the whole of the State a Service designed as the Rajasthan Panchayat Samiti and Zila Parishad Service and here after in this section referred to as the Service and recruitment thereto shall be made district-wise;
(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of:
[i] Village level workers;
[ii] Gram Sevikas;
[iii] Primary school teachers;
[iv] Ministerial establishment (except accounts clerks);
[v] Field men;
[vi] Stockmen; and
[vii] Vaccinators.
(3) The State Government may encadre in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Parishads not including in class IV services.
(4) The State Government may prescribe the duties functions, and powers of each grade and each category of offices and employees encadred in the service.
(5) Except for first appointments to posts in the Service referred to in Subsection (5) of Section 31, all appointments to post in the Service shall be made in accordance with the provisions of Section 31 and 60:
[a] by direct recruitment; or
[b] by promotion; or
[c] by transfer.
(6) Appointments by direct recruitment shall be made by a Panchayat Samiti or a Zila Parishad, as the case may be, in accordance with rules made in that behalf by the State Government, from out of the persons selected from posts of each grade and each category in the Service by a Selection Commission consisting of the following three members, namely:
[i] two persons possessing the prescribed qualifications, of whom atleast one shall be an officer of Government whether retired or in active Government service appointed by the State Government on prescribed terms and conditions of service for a period which shall not exceed three years, and
[ii] The Pramukh of the Zila Parishad of the district for which selection is made;
Provided that such selections for a district, if made by one of the two members referred to in Clause (i) and the Pramukh of the district, sitting together, shall be deemed to have been made by the Selection Commission.
[7] One of the members mentioned in Clause (i) of Sub-section (6) shall be nominated by the State Government to be the Chairman of the Selection Commission.
[8] The Selection Commission shall select persons for posts in the service for each district in accordance with rules made in this behalf by the State Government.
Provided that in case no such selection has been made in time or no person so selected is available at any time, appointment of persons not so selected to posts encadred the Service may be made by the appointing authority in the prescribed manner temporarily for a period not exceeding six months;
Provided further that the period of any such temporary appointment may be extended in the circumstances specified in the first proviso only in consultation with the District Establishment Committee constituted under Section 88.
[9] Appointments by promotion or transfer of incumbents holding posts encadred in the Service shall be governed by rules made in this behalf and may be ordered by the Panchayat Samiti or the Zila Parishad, as the case may be, from amongst persons encadred in district-wise lists prepared in the prescribed manner;
[a] in the case of promotions or transfers within the same district by the District Establishment Committee constituted under Section 88; and
[b] in the case of other transfers, by the Selection Commission constituted under Sub-section (6), on the recommendation of the Panchayat Samiti or the Zila Parishad under whose administrative control they are for the time being and after consulting the Panchayat Samiti or the Zila Parishad as the case may be under whose administrative control they are proposed to be transferred.
[9A] Not with standing any thing contained in Sub-section (9), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti whether within the same district or outside it, and may also stay the operation of, or cancel, any order of transfer made under Sub-section (9) or the rules made there under;
[10] Persons holding posts encadred in the Service shall also be eligible for appointment or promotion to posts in a State Service or under the State Government in accordance with rules made in that behalf by the State Government and subject to terms and conditions laid down in such rules, and the persons so appointed or promoted shall count the period of their holding post in the Service constituted under this section for purposes of seniority and pensions.
[11] Persons holding appointment in a State Service shall also be eligible for appointment by transfer to a post encadred in the Service constituted under this section in accordance with rules made in this behalf by the State Government and on terms and conditions laid down in those rules.
What does it show? This section along with Sections 31, 60 and 89 deals with matters concerning the staff of the Panchayat Samiti and the Zila Parishads. Sub-section (9A) is part of the whole scheme. Under Section 86 an all Rajasthan State Service designed as the Rajasthan Panchayat Samiti and Zila Parishads Service, consisting of various categories of posts is constituted. The recruitment is to be made district-wise. The power to prescribe duties functions and powers of different category of officers and employees is vested in the State Government. The mode of appointment is by way of direct recruitment, promotion and transfer. The procedure is to be prescribed by the rules which are to be made by the State Government. Subsection (9) lays down that appointment by promotion or transfer may be ordered by the Panchayat Samiti or the Zila Parishad from amongst persons entered in the district-wise lists. In case of promotion or transfer within the same district the power is given to the District Establishment Committee, constituted under Section 88 and in the case of other transfers the power vests in the Selection Commission. Before we proceed to consider the rational of Sub-section (9A) we may point out that Sub-section (10) confers eligibility on persons holding posts encadred in the services to be appointed or promoted to posts in a Sate Service or under the State Government. Their service in the Panchayat Service is counted for purposes of seniority and pension. Subsection (11) enables the employees of the State Service to be appointed by transfer to a post encadred in the Panchayat Service. Except Sub-section (9A), no other provision of the Act has been challenged by any of the writ petitioners. Under Sub-section (10) and (11) an attempt has been made to establish co-ordination and affinity amongst the various services. The Panchayat Service is not kept isolated but avenues of promotion to the members of this Service have been opened as they may choose to go to the other services of the State. The second part of this sub section which confers on the State Government the power to stay the operation of or cancel any order of transfer made under Sub-section (9) or the Rules is obviously to redress and remove injustice and to meet the grievances of the party aggrieved by the orders of the District Establishment Committee or the Selection Commission. More likely it would prove advantageous to the employees themselves. The provision is salutary and cannot be termed arbitrary or unreasonable. The other part of Sub-section (9A) conferring power of transfer in the State Government is meant to serve larger public interest. It is entirely in keeping with the scheme of the Act. Power to transfer outside the district is available in Sub-section (9) and the same is to be exercised by the Selection Commission. The power under Sub-section (9A) is an additional power conferred on the State Government. The power is reasonable and is intended to be availed to meet the administrative exigencies. It would also enable the State Government to see and ensure that the objectives of the Act are achieved and the Samitis and Zila Parishads function effectively and efficiently. The power under Sub-section (9A) cannot be held to be arbitrary discriminatory or violative of Article 14 of the Constitution.
10. The learned Single Judge was then said that the powers given under Sub-section (9A) are unbridled and uncannalised. We are unable to agree with the learned Single Judge in this regard also. The nature of the power is such, that the circumstances which necessitate a transfer cannot obviously be foreseen and enumerated in the section. The guide lines are implicit, the first guideline is the exigencies of the administration; another is the object and the scheme of the act; then the principles and purposes embodied in the various Sub-sections of Section 86 are to be kept in view while exercising the power under Sub-section (9A). An over-rigid policy to adhere to given circumstances alone is not a valid substitute for deciding the question having regard to individual circumstances on each occasion. The power is conferred on the State Government and it is expected that the said power will be exercised fairly for the exigencies of the administration and for advancing the purposes of the Act. The conferment of a power and exercising the said power are two different things. We do not see any vice in the conferment of power in the State Government by sub Section (9A). So long as the order of transfer is made fairly to meet the exigencies of the Administration and for carrying out the purposes of the Act, it cannot be held to be bad. The Government alone is best suited to judge the exigencies of administration justifying the transfer of a member of the servile from one Panchayat Samiti to another Panchayat Samiti.
11. We may add that arbitrariness is the antithesis of the right to equality enshrined in Article 14 of the Constitution and, therefore, all State action should be guided by reason and fairness If any order is actuated by malice or is the result of extraneous considerations or is otherwise aggressive or vindicative, this Court will not hesitate, if such a plea is well founded and acceptable, to intervene, condemn and even strike down any such order. Judicial review is always available to invalidate any order which is arbitrary, mala fide. oppressive or is tainted with extraneous considerations. True, this power inherent in this Court is to be exercised sparingly in special and exceptional circumstances and with circumspection.
12. For the reasons discussed above, we hold that Sub-section (9A) of Section 86 of the Act is valid and constitutional.
13. In the result, the special appeals filed by the State are allowed and the judgment of the learned Single Judge dated 3rd September, 1980 is set aside. We declare that Sub-section (9A) of Section 86 of the Act.is valid and constitutional. The writ petitions shall stand dismissed. The parties are left to bear their own costs.