Madhya Pradesh High Court
Krishna Nagwanshi vs The State Of Madhya Pradesh on 26 October, 2021
Author: Vijay Kumar Shukla
Bench: Ravi Malimath, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.869/2021
Vijay Pawar
-Versus-
The State of M.P. and Ors.
W.A. No.873/2021
Krishna Nagwanshi
-Versus-
The State of M.P. and Ors.
--
Shri Mukesh Kumar Agrawal, Advocate for the appellants.
Shri A.P. Singh, Deputy Advocate General for the respondents/State.
_______________________________________________________
CORAM :
Hon'ble Shri Justice Ravi Malimath, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
[Hearing convened through virtual/physical modes]
JUDGMENT
(Jabalpur, dtd.26.10.2021) Per : Vijay Kumar Shukla, J.-
The learned counsel for the appellants submits that in both the writ appeals a common question of law is involved. Therefore, the same were heard analogously and are being disposed of by a common order.
2. The instant intra-court appeals have been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand 2 Nyaypeeth to Appeal) Adhiniyam, 2005, being aggrieved by the orders passed by the learned Single Judge in WP-17551-2021, dated 13-9-2021 and WP-17530-2021, dated 15-9-2021 respectively, whereby the writ petitions preferred by the petitioners/appellants [hereinafter referred to as "the petitioners"] challenging the transfer orders have been dismissed.
3. For the sake of clarity and convenience the facts adumbrated in WA-869-2021 [Vijay Pawar vs. State of M.P. and others] are noted herein.
4. The petitioner has challenged the legality and propriety of the order of transfer dated 31-8-2021, by which the petitioner has been transferred from Gram Panchayat, Bijorigumai, Janpad Panchayat, Parasiya to Gram Panchayat, Jhamta, Janpad Panchayat, Bicchua. The learned counsel for the petitioner submits that the transfer order is contrary to the provisions of Sub-rule (7) of Rule 6 of the M.P. Panchayat Secretaruy (Gram Panchayat Secretary Recruitment & Conditions of Service) Rules, 2011 [for short, "Rules 2011"] and also the provisions of Section 47 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam 1993 [for brevity, "the Adhiniyam 1993"]. He further asserts that without there being approval of the General Administrative Committee, duly constituted 3 under Section 46 of the Adhiniyam 1993, the impugned order of transfer has been passed. Further, the transfer order has been issued in contravention of the Sub-rule (7) of Rule 6 of the Rules 2011, as no enquiry has been conducted on the complaint made by the Chief Executive Officer of the Janpad Panchayat concerned.
5. According to the petitioner, as per the Policy of the Commissioner, Panchayat Raj, dated 26-03-2018, Chief Executive Officer, Jila Panchayat, can issue an order of transfer of a Panchayat Secretary within the same Janpad Panchayat, normally after completion of tenure of at least 5 years. Besides, out of the Janpad Panchayat, i.e. from one Janpad Panchayat to another, the Collector is the only competent to issue an order of transfer and not the Chief Executive Officer, Jila Panchayat and, therefore, the impugned order of transfer lacks jurisdiction.
6. The learned counsel for the State has produced a copy of the Transfer Policy framed by the State Government and also cited certain judgments, to show that there is no illegality in the impugned order of transfer. He assiduously urged that the provisions of sections 46 and 47 of the Adhiniyam 1993, do not apply to Gram Panchayats. It is further submitted that there is no clause in the Transfer Policy, that approval of the General Administrative 4 Committee is mandatory for transferring a Gram Panchayat Secretary. The Transfer Policy has been issued by the Commissioner, Panchayat Raj, in exercise of vested power under Sub-rule (7) of Rule 6 of the Rules 2011, which provides ample power to transfer a Gram Panchayat Secretary on administrative ground within the Janpad Panchayat. The Sub-rule (7) of Rule 6 being relevant for the present purpose, is extracted hereunder :
"(7). The Gram Panchayat Secretary may be transferred on administrative ground or on the basis of his application within the district in accordance with the transfer policy issued by the Commissioner Panchayat Raj. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat."
7. On a studied scrutiny of the aforesaid Rule, it is vivid that the first part of the Rule empowers the Competent Authority to transfer the Gram Panchayat Secretary on administrative ground. The second part of the Rule also enables the Competent Authority to transfer the Gram Panchayat Secretary on an application made in that behalf, in accordance with the transfer policy. The third part of the Rule postulates that a Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat.
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8. The learned counsel for the appellant contended, that since in the present case the transfer is outside the Janpad Panchayat, therefore, the ratio of the judgment of a Division Bench of this Court rendered in the case of Gram Panchayat Hardi vs. Anil Dixit and others, 2016 (1) MPLJ 29 is not attracted.
9. Opposing the said contention, the learned counsel for the respondents/State submitted that the petitioner is raising the same issue which has already been rejected by a Single Bench of this Court in the case of Rakesh Kumar Urmaliya vs. State of M.P. and others, (WP-15306-2021, dated 18-8-2021), wherein it has been held that a Secretary of Gram Panchayat can be transferred outside the Janpad Panchayat. So far as the issue raised by the appellant in respect of proposal from General Administrative Committee is concerned, the said ground has already been rejected in the case of Rakesh Kumar Urmaliya (supra). In the said case, the Co-ordinate Bench has also considered the scope of Sub-rule (7) of Rule 6 of the Rules 2011 and dismissed the writ petition.
10. In Rakesh Kumar Urmaliya (supra) the learned Single Judge has observed that the State Government, in exercise of power conferred under Section 46 of the Adhiniyam 1993, has framed Gram Panchayat (Terms of Office of Members of Standing 6 Committee and procedure for the Conduct of Business) Rules, 1994. As per Rule 3 of the said Rules, General Administrative Committee is one of the three Standing Committees of every Gram Panchayat and it also looks into the matter pertaining to establishment and service of Gram Panchayat. As per Rule 11 of the Business Rules 1994, the Standing Committee shall primarily take decision only in regard to matter entrusted to it.
11. In the case in hand, the appellant has failed to show that any power is assigned to Standing Committee of the Gram Panchayat to give approval of transfer order of the Panchayat Secretary. In view of the aforesaid, the submission advanced on behalf of the appellant is not worth acceptance. Therefore, the issue is answered in negative, as the appellant has failed to show that approval of the General Administrative Committee is required in the case of transfer of the appellant.
12. The appellant has already remained at the present place of posting for more than normal tenure and the impugned order of transfer has been passed on administrative exigencies. Neither any fundamental right nor provisions of the Rules 2011, have been violated and, therefore, we do not deem it fit to interfere in the transfer of the appellant. The learned Single Judge has rightly held 7 that the appellant has failed to show that the impugned order of transfer has been passed in violation of any statutory provisions or replete with malafide.
13. In view of the aforesaid factual backdrop, we do not perceive any illegality in the order passed by the learned Single Judge dismissing the writ petition, warranting any interference in the present intra-court appeals. Accordingly, both the writ appeals deserve to be and are hereby dismissed. There shall be no order as to costs.
(Ravi Malimath) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.10.30 16:59:22 +05'30'