Madhya Pradesh High Court
Anil Kumar Chaubey vs State Of M.P on 20 April, 2017
1 W. P. No. 1704/ 2012
(Anil Kumar Chaubey Vs. State of M.P. & Others)
20.04.2017
Shri Ankur Mody, learned counsel for the
petitioner.
Shri Harish Dixit, learned Government Advocate
for respondent No.1/ State.
Smt. Ami Prabal, learned counsel for respondent No.5.
None for other respondents.
Petitioner has filed this petition challenging the order of promotion of respondent No.5 on the post of Upper Division Clerk (UDC)- cum- Accountant issued by Chief Executive Officer, Janpad Panchayat- Kurwai, on 28.08.2010 and also the act of the respondents in not deciding petitioner's representation.
It is petitioner's case which is not in dispute that on 23.06.1988, petitioner was appointed as regular Lower Division Clerk (LDC) in the services of Janpad Panchayat- Kurwai. Thereafter, on 02.12.1991, respondent No.5 was appointed as regular LDC at Janpad Panchayat- Kurwai. On 28.02.1994, respondent No.5 was promoted as UDC; this was contested by the petitioner in the Court of law and therefore, vide order dated 27.06.1998, petitioner was also promoted to the post of UDC with effect from 28.02.1994. In the year 2000, respondent No.5 was transferred from Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj on the post of UDC. Thereafter on 19.08.2003, respondent No.5 was transferred back to Kurwai on administrative grounds whereas petitioner was transferred to Sironj on same administrative grounds. Thereafter, on 26.07.2007, petitioner sought his transfer to Kurwai and 2 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) therefore, on his own request, he was transferred back to Kurwai. Thereafter, in the year 2010, impugned order has been passed.
To appreciate complete backdrop of the matter, it will be profitable to refer to communication dated 23.01.2008 passed by the Chief Executive Officer, Janpad Panchayat- Kurwai addressed to the Deputy Director, Panchayat & Social Justice Department, Vidisha, wherein all these facts were brought on record and opinion of the Deputy Director was sought. It reads as under:-
Þfo"k;kUrxZr fuosnu gS fd tuin iapk;r dqjokbZ esa 'kklu ds funsZ'kkuqlkj lg ys[kkf/kdkjh dh inksUufr dh tkuk gSA bl gsrq fu;ekuqlkj p;u lfefr dh cSBd fnukad 02@01@2008 dks vk;ksftr dh xbZA cSBd esa nks deZpkfj;ksa dh lekurk ds dkj.k p;u lfefr }kjk fu.kZ; ysus esa vleFkZrk O;Dr djrs gq, loZ lEefr ls bl laca/k esa ekxZn'kZu ysus dk fu.kZ; fuEukafdr fcanqvksa ds vk/kkj ij r; gqvk& 1- tuin iapk;r dqjokbZ esa nks deZpkjh ¼Jh vks-ih- lDlSuk ,oa Jh vfuy pkSos½ nksuksa dh inksUufr m- fyfid lg ys[kkiky ds in ij fnukad 28@02@1994 dks gqbZA ¼Nk;kizfr layXu gS½ 2- fnukad 27@06@1998 dks Jh lDlSuk dk LFkkukarj.k tuin iapk;r dqjokbZ ls tuin iapk;r fljksat esa iz'kklfud vk/kkj ij fd;k x;kA ¼Nk;kizfr layXu gS½ 3- fnukad 19@08@2003 dks iqu% Jh lDlSuk LFkkukarj.k tuin iapk;r fljksat ls tuin iapk;r dqjokbZ esa iz'kklfud vk/kkj ij fd;k x;kA¼Nk;kizfr layXu gS½ 4- fnukad 19@08@2003 dks Jh pkSo dk LFkkukarj.k tuin iapk;r dqjokbZ ls tuin iapk;r fljksat esa iz'kklfud vk/kkj ij fd;k x;kA¼Nk;kizfr layXu gS½ 5- fnukad 07@07@2007 dks Jh pkSos dk LFkkukarj.k Lo;a ds O;; ij tuin iapk;r fljksat ls tuin iapk;r dqjokbZ fd;k x;kA¼Nk;kizfr layXu gS½ 6- nksukas deZpkfj;ksa ds foxr 5 o"kksZ ds xksiuh; izfrosnu ,d leku gSaA 7- Jh vfuy pkSos dh tUe frfFk 10@11@1964 gS rFkk Jh vks-ih- lDlSuk dh tUe frfFk 28@09@1962 gSA 8- Jh pkSos dh fu;qfDr fnukad 22@06@1988 dks tuin iapk;r dqjokbZ esa rFkk 3 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) Jh vks-ih- lDlSuk dh fu;qfDr rnZFk :i ls 1983 esa tuin iapk;r dslyk ftyk gks'kaxkckn esa gqbZ FkhA rFkk 02@12@1991 dks tuin iapk;r dqjokbZ }kjk fu;fer fd;k x;kA dk;kZy; esa izkIr lsok vfHkys[kksa ds fooj.k vuqlkj Jh lDlSuk fnukad 19@08@2003 ls yxkrkj tuin iapk;r dqjokbZ esa rFkk Jh pkSos fnukad 26@07@2007 ls tuin iapk;r dqjokbZ esa inLFk gSaA tuin iapk;r ds deZpkfj;ksa dh LFkkukarj.k uhfr o"kZ 2003 ds vuqlkj ¼Nk;kizfr layXu gS½A d`i;k bl laca/k esa mfpr ekxZn'kZu nsus dk d"V djsa fd mDr nksuksa deZpkfj;ksa esa ls dkSu lk deZpkjh T;s"B dze esa vkrk gSA rkfd tuin iapk;r dqjokbZ esa fjDr lgk;d ys[kkf/kdkjh in ij inksUufr dh dk;Zokgh 'kklu ds funsZ'kksa ds vuq:i dh tk ldsAß Thereafter, Departmental Promotion Committee (DPC) was convened on 26.08.2010 and respondent No.5 was recommended for promotion on the ground that petitioner by virtue of his transfer from Sironj to Kurwai, at his own expense, had become junior to respondent No.5.
It is the contention of learned counsel for the petitioner that transfer to his parent body i.e. Janpad Panchayat- Kurwai, did not amounted to loss of his lien or seniority on the post of UDC and since that seniority is to be counted from the date of initial regular appointment on the post of LDC, which is the feeder cadre to the post of UDC, therefore, by virtue of the fact that petitioner was appointed regularly as LDC in Janpad Panchayat- Kurwai on 26.03.1988 i.e. prior to regular appointment of respondent No.5 as regular LDC on 02.12.1991, he would be deemed to be senior to respondent No.5 at Janpad Panchayat- Kurwai.
It is also submitted that his transfer from Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj on administrative grounds will not entail loss of seniority in 4 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) the cadre of UDC inasmuch as it was not a transfer which was sought by him on his own sweet volition, therefore, he being senior to respondent No.5, should have been given preference in the matter of promotion other things being equal as is apparent from the proceedings of Departmental Promotion Committee.
Another fact which has been placed by the petitioner on record by virtue of documents filed along with rejoinder is that it was the State Minister of revenue on whose instance, petitioner was transferred from Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj and respondent No.5 was transferred from Janpad Panchayat- Sironj to Janpad Panchayat- Kurwai.
Learned counsel for the State and respondent No.5 has drawn attention of this Court to the DPC proceedings and they submit that in fact by virtue of transfer policy dated 28.08.2003, petitioner had become junior to respondent No.5 and therefore, the impugned order granting promotion to respondent No.5 in preference to the petitioner is correct and this petition deserves to be dismissed and be dismissed as such with cost.
Learned counsel for the respondents have heavily placed their reliance on Rule 7 Sub-rule (1) Clause-d read with Rule 27 of the Panchayat Recruitment & General Conditions of Service Rules, 1999 [hereinafter referred to as "1999 Rules"]. It is also submitted that by virtue of Rule 7 Sub-rule (1) Clause-d, the petitioner was transferred to Janpad Panchayat- Sironj on 19.08.2003 and he became a member of that body and lost his seniority at Janpad Panchayat- Kurwai.
5 W. P. No. 1704/ 2012(Anil Kumar Chaubey Vs. State of M.P. & Others) Before adverting to the justification and logic applied by the State and respondent No.5, it will be necessary to refer to the fact that the petitioner was transferred to Janpad Panchayat- Sironj on administrative grounds on 19.08.2003 i.e. the date on which transfer policy had not come into effect. Section 3(e) of 1999 Rules defines Panchayat service to mean the service of Zila Panchayat or Janpad Panchayat, as the case may be, under Sub-section (1) of Section 70 of the Act.
Sub-section (1) of Section 70 of the Panchayat Raj & Gram Swaraj Adhiniyam, 1993, provides that subject to the provisions of Section 69 every Panchayat may with previous approval of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of it's duties.
Sub-section (2) of Section 70 provides for the qualifications, method of recruitment, salaries, leave, allowance and other conditions of service including disciplinary matters of such officer and servants shall be such as may be prescribed.
Section 71 of the Panchayat Raj & Gram Swaraj Adhiniyam, 1993, deals with deputation of government servant and provides that the State Government may depute to the service of the Panchayat such of it's servants as it considers necessary. The service conditions of such deputed servants shall be such as may be prescribed, by the State Government from time- to-time.
In this backdrop, Rule 4 of 1999 Rules is to be seen, which provides constitution of service and reads 6 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) as under:-
"The service shall consist of the following persons, namely;
(1) Persons, who, at the commencement of these rules, are holding substantively the posts specified in Schedule-I;
(2) Persons, recruited to the service before the commencement of these rules; and (3) Persons, recruited to the service in accordance with the provisions of these rules."
Rule 7 deals with method of recruitment and reads as under:-
(1) Recruitment to the Panchayat Service or to a post or class of posts shall be made by the following methods:-
(a) By direct recruitment, by written examination or interview or by both;
(b) By promotion of a person employed in the Panchayat service;
(c) By transfer on deputation of a person serving in connection with the affairs of any local authority or of the State Government; and
(d) By transfer of persons who hold in a substantive capacity such posts in such services as may be specified in this behalf."
Here it will be important to mention that since the petitioner was appointed on regular basis on 23.06.1988 prior to notification of 1999 Rules, therefore, by virtue of Rule 4(1) and 4(2), he became a member of service of Janpad Panchayat- Kurwai and therefore, provisions of Rule 7 will not be applicable to the petitioner inasmuch as method of recruitment as provided under Rule 7 will be applicable to those employees who have been appointed after promulgation of 1999 Rules. Therefore, the contention of learned counsel for respondent No.5 that in terms of the provisions contained in Rule 7(1)(d), petitioner by 7 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) virtue of transfer on administrative grounds to Sironj, had become a member of Sironj Janpad Panchayat in his substantive capacity, does not hold ground and does not appear to be correct inasmuch as Rule 7 provides for method of recruitment and since the petitioner already stood recruited prior to promulgation of 1999 Rules, Rule 7 will have no application as far as recruitment of the petitioner is concerned. Therefore, this Court is of the opinion that petitioner's substantive appointment is that in Janpad Panchayat- Kurwai and was not made in terms of Rule 7.
Now, adverting to Rule 27 of 1999 Rules, which deals with appointment of Panchayat employ to and his Panchayat, which reads as under:
"Notwithstanding anything contained in these rules, the appointing authority on application made by any employee of Panchayat Service of other Panchayat, may appoint such employee to a same or equivalent post in the Panchayat service on such terms and conditions as may be mutually agreed upon between the two Panchayats, and subject to the following conditions, namely:-
i) Such appointment shall not be made to post to be filled by promotion;
ii) The person so appointed shall received the junior most rank, for the purpose of seniority, in the cadre of the post to which he is appointed, as it stands on the date of such appointment."
Thus, a plain reading of Rule 27, it is apparent that it deals with appointment of a Panchayat Karmi and does not deals with transfer of Panchayat Karmi. Petitioner had sought transfer from Janpad Panchayat- Sironj to Janpad Panchayat- Kurwai, which is his parent Janpad Panchayat, at his own expense, he never sought 8 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) appointment on the post of UDC from Janpad Panchayat- Sironj to Janpad Panchayat- Kurwai and that appointment even otherwise could not have been granted because the post of UDC is filled by promotion and there is bar on appointment to a post by way of appointment and which is to be filled by promotion as it cannot be filled by way of appointment, as is provided under Rule 27. Thus, petitioner's case is that of a transfer simpliciter and not appointment to Janpad Panchayat- Kurwai, which is his parent body where petitioner's lien was existing even after being transferred from Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj and at best, case of petitioner's transfer from Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj, can be termed as that of a deputation from one Janpad Panchayat to another Janpad Panchayat.
Since respondents have failed to show that petitioner was not substantively holding the post of UDC in Janpad Panchayat- Kurwai and his lien stood terminated by way of administrative order of transfer by Janpad Panchayat- Kurwai to Janpad Panchayat- Sironj, the interpretation given to the transfer policy, is not applicable to the facts and circumstances of the case specially when Rule 27 (ii) specifically deals with granting of junior most rank in case of appointment of a person from one Janpad Panchayat to another Janpad Panchayat. To further clarify, it means that a person who is having a substantive lien in a Janpad Panchayat seeks termination of his lien and posting in another Janpad Panchayat by way of appointment in terms of 9 W. P. No. 1704/ 2012 (Anil Kumar Chaubey Vs. State of M.P. & Others) Rule 27, that posting can be given with consent of the borrowing and relieving Janpad Panchayat, but such employee will get bottom most seniority in the borrowing Janpad Panchayat on his said appointment in the borrowing Janpad Panchayat.
In view of such discussion, this Court is of the opinion that the respondents have deliberately given a coloured interpretation to the provisions of the Rules so to favour respondent No.5, therefore, the promotion order of respondent No.5 (Annexure-P/1) is quashed. It is directed that respondents shall conduct review DPC from the date on which respondent No.5 was promoted and consider the seniority of the petitioner from the date of his initial appointment as LDC and by virtue of that seniority, will consider the petitioner to be senior to respondent No.5 in the cadre of UDC as the petitioner was also granted promotion on the post of UDC from the date of promotion of his junior on 28.02.1994 and after scrutinizing the records of eligible candidates, shall decide the issue of promotion to the post of UDC- cum- Accountant. Thus, this petition is allowed.
Respondents shall bear cost of the petition, which is quantified at Rs.5,000/-.
(Vivek Agarwal) Judge @PK