Mahendra Bhushan Sharma, J.
1. The petitioner has challenged his transfer from Panchayat Samiti Jhotwara, Jaipur to Chauhtan (Barmer) under order (Ann. Ex. 1)dated 11-6-1984. The petitioner was initially appointed as Gram Sewak in the year 1957 before coming into force of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules, 1959 (for short 'the rules'). In the year 1974 he was transferred to the Panchayat Samiti Bassi from Panchayat Samiti Fagi District Jaipur and again in the year 1975 he was transferred from the Panchayat Samiti Bassi to Panchayat Samiti Jhowtara, Jaipur. The challenge to the aforesaid order (Ex. 1) and also (Ex. 2) order dated 4th August, 1984 is on the ground that Rule 29 of the Rules 1959, is arbitrary and invalid and even procedure prescribed in the Rule 29 has not been followed.
2. The contention of the learned Counsel for the petitioner is that the appointment to the post of Village Level Worker is made districtwise and therefore, there cannot be inter-district transfer. Rule 29 providing transfer outside the district is therefore, illegal and arbitrary.
3. In the reply filed on behalf of the non-petitioner No. 3 a case has been set up that the seniority of all Village Level Workers appointed prior to 1959 has been maintained as per proviso 1 to Rule 24 of the Rules. Promotions to the post of Extention Officer, Panchayat have already been granted upto Sl. No. 595 and the name of the petitioner appears in the seniority list at Sl. No. 669. His promotion is therefore, is not on the basis of Districtwise seniority and the Panchayat Samiti Seniority List and is on the basis of the seniority list which has been filed alongwith reply. Therefore, the petitioner can have no grievance.
4. Under Sub-section (1) of Section 86 of the Act there shall be constituted for the whole of the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service (here after in this Section referred to as the Service) and recruitment there to shall be made districtwise. The 'service' under Sub-section (2) of Section 86 of the Act has been divided into different categories and each category being divided into different grades and also consists of Village Level Workers, Gram Sevikas, Pirimary School Teachers, Ministerial establishment (except accounts clerks), Fieldmen, Storemen and Vaccinators etc. Under Rule 5 of the Rules there are provisions of initial constitution of the 'service' and under Sub-rule (1) of Rule 5 of the Rules, all persons holding appointments in the different categories of posts included in the Service immediately preceding the constitution of the service shall be deemed to have been appointed thereto by the Panchayat Samities or the Zila Parishads as the case may be under the provisions of these Rules Under the proviso to Sub-rule (1) of Rule 5 of the Rules, a permanent Government employee may within 90 days of the enforcement of these Rules exercise his option not to become a member of the Service in which case the former appointing authority may take such action as it may deem necessary in accordance with the provisions of the Rajasthan Service Rules. Therefore, the pre-Act employees by virtue of Rule 5 of the Rules become members of the service. The petitioner is also a pre-Act employee and has become a member of service Under Sub-section (1) of Section 86 of the Act, the service is to be constituted for whole of the State though the recruitment thereto was to be made district-wise. The procedure for direct recruitment is contained in Rule 15 and onwards of the Rules and under Rule 18(1), the Commission shall prepare a district-wise merit list of candidates considered suitable for appointment to each grade or category of posts in District and forward the list to the Distric Establishment Committee of the District concerned. Under Rule of 18(2) the District Establishment Committee shall, on receipt of requisition from the Panchayat Samities or Zila Parishad, allot candidates from the list in the order in which their names occur in the list. The Panchayat Samities or the Zila Parishads shall take into consideration the requirements of Rule 7 while sending their requisitions to the District Establishment Committee. Under Rule 18A(i). The State Government may allot candidates in order of merit from the list of a district, where there are no vacancies, to another district where may be vacancies for appointments provided that the candidates are not available in the district wise merit list of the later district. Under Rule 19 of the Rules the Panchayat Samiti or the Zila Parishad shall appoint the candidates allotted by the District Establishment Committee in the order in which their names are forwarded by the District Establishment Committee. Therefore, it will be clear that the recruitments to the service shall be made District wise but 'service' will be for whole of the State.
5. Under Sub-section (9) of section 86 of the Act appointments by promotion or transfer of incumbents holding posts encadered 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 entered in district wise list prepared in the prescribed manner. It is further provided that promotions or transfers within the same district by the District Establishment Committee constituted under Section 88, and in the case of other transfers, by the Selection Commission constituted under Sub-section (6) shall be 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. Sub-section 9A of Section 86 was struck down by a decision of this Court in the case of Ram Pratap v. State of Rajasthan (1982 (1) SLR 278). The reason on which Sub-section (9A) of Section 86 was struck-down is that it effects the autonomy in the Panchayat Samiti and Zila Parishad and gives arbitrary powers to the State Government and would be negation of it and undoing the very object and spirit which the founding fathers of the Constitution enacted. In para 46, Sub-section (9) of Section 86 was considered it was said one may ask what was the reason for introducing Sub-section (9-A) by amendment inspite of Sub-section (9) which provided autonomy to the Panchayat Samities and Zila Parishads to manage their own affairs. There were several checks contained in Sub-section (9) which says that the power of transfer is to be exercised by Panchayat Samiti or Zila Parishads after consultations and on recommendations of the transferring and transferor Samities and Parishads and from the list prepared by bodies like Panchayat Service Commission and District Establishment Committees. This shows that several checks and balances were kept by the legislature in order to ensure fairness to the employees on the one hand and also to provide guidance to the Samities and Parishads while exercising those powers. An elaborate set of Rules were also made to make sure that arbitrariness is not found in the actions and orders in this respect. A very look at Sub-section (9) of Section 86 will show that it has been made to maintain the autonomy of the Panchayat Samities or Zila Parishads and in my opinion Section 86(9) is a valid piece of legislation and is not open to challenge on the ground that it is arbitrary.
6. Coming to the next question that Rule 29 has not been followed, the contention of the learned Counsel for the petitioner is that a look at (Annexure 1) will show that therein it has not been mentioned that there was any prior consultation from Panchayat Samiti Chohtan Dirstrict Barmer and Panchayat Samiti Jhotwara. A reply has been filed by wherein it has been said both the Panchayat Samities were consulted. It can, therefore, be said that the order has been made after consultation with the two Panchayat Samities under the executive control of which the petitioner was working and was proposed to be transferred. The learned Counsel referring to Ex. 2 has submitted that there was no case of transfer but it was a case of appointment. A reference has been made to Section 86(9). Under Section 86(9A) it was appointment by transfer and it can therefore not be sad that Rule 29 was not followed. Under Sub-section (9A) of Section 86 the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat whether within the same district or outside it after following the procedure prescribed in Sub-rule (2) of Rule 29 of the Rules. The apprehension of the petitioner is that his seniority and chances of promotion will be effected, illegally. The petitioner is a pre-Act employee and became member of the service by virtue of Rule 29 of the Rules. As per the reply his seniority in the seniority list and he will get his promotion to the post of Extension Officer Panchayat Samiti by virtue of seniority as and a vacancy arises. He was transferred to one Panchayat Samiti to other in accordance with the rules and his further seniority will not be affected. I find no force in this writ petition and is hereby dismissed.