Madhya Pradesh High Court
Pramod Katare vs The State Of Madhya Pradesh on 5 April, 2022
Author: Anand Pathak
Bench: Anand Pathak
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HIGH COURT OF MADHYA PRADESH
W.P.No.7454/2022, W.P.13266/2021, W.P.13428/2021,
W.P.13456/2021, W.P.13880/2021, W.P.17538/2021,
W.P.5660/2022, W.P.5662/2022, W.P.5663/2022,
W.P.5669/2022, W.P.5670/2022, W.P.6242/2022,
W.P.6244/2022, W.P.6246/2022, W.P.6247/2022,
W.P.7309/2022
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W.P.No.7454/2022 (Pramod Katare Vs. State of M.P. and Ors.) Shri Brijesh Sharma, learned counsel for the petitioner. Shri Sanjay Sharma, learned Government Advocate for respondents/State.
................................................................................................................. W.P.13266/2021
(Ajay Kumar Kadam Vs. State of M.P. and Ors.) W.P.6242/2022 (Ajay Kumar Kadam Vs. State of M.P. and Ors.) W.P.6244/2022 (Vijay Verma Vs. State of M.P. and Ors.) W.P.6246/2022 (Ashok Singh Vimal Vs. State of M.P. and Ors.) W.P.6247/2022 (Smt. Mamta Gaud Vs. State of M.P. and Ors.) Shri Prashant Sharma, learned counsel for the petitioner. Shri Sanjay Sharma, learned Government Advocate for respondents/State.
..................................................................................................................... W.P.13428/2021
(Rajkumar Yaduvanshi Vs. State of M.P. and Ors.) W.P.13456/2021 (Satyam Gurjar Vs. State of M.P. and Ors.) W.P.5669/2022 ( Satyam Gurjar Vs. State of M.P. and Ors.) W.P.5670/2022 (Rajkumar Yaduvanshi Vs. State of M.P. and Ors.) Shri D.S. Raghuvanshi, learned counsel for the petitioner. Shri Sanjay Sharma, learned Government Advocate for respondents/State.
2................................................................................................................. W.P.13880/2021
(Devendra Singh Vs. State of M.P. and Ors.) W.P.17538/2021 (Yogesh Budholiya Vs. State of M.P. and Ors.) W.P.5660/2022 (Hariom Sikarwar Vs. State of M.P. and Ors.) W.P.5662/2022 (Yogesh Budholiya Vs. State of M.P. and Ors.) W.P.5663/2022 (Devendra Singh Vs. State of M.P. and Ors.) Shri D.P. Singh, learned counsel for the petitioner. Shri Sanjay Sharma, learned Government Advocate for respondents/State.
.................................................................................................................. W.P.7309/2022
(Mohit Shrivastava Vs. State of M.P. and Ors.) Shri Pawan Kumar Dwivedi, learned counsel for the petitioner. Shri Sanjay Sharma, learned Government Advocate for respondents/State.
................................................................................................................. Gwalior Bench:Dated -05.04.2022 Shri Vishram Sagar Sharma, Additional Principal Chief Conservator of Forest and Shri Rajeev Kaushal, SDO, Forest Gwalior Circle are present in person.
Regard being had to the commonality of the issue involved, all the cases are being heard analogously and decided by a common order. For convenience sake, facts as enumerated in W.P. No.7454/2022 (Pramod Katare Vs. State of M.P. and Ors.) are taken into consideration.
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2. The present petition under Article 226 of the Constitution of India has been preferred by the petitioner being crestfallen by the order dated 28.02.2022 (Annexure P/1) passed by the respondents/State, whereby petitioner who was working as Forest Guard at Forest Circle Morena has been transferred to Kuno Wildlife Century, Division Sheopur.
3. It the submission of learned counsel for the petitioner that by the impugned transfer order, seniority of petitioner would be affected adversely. He referred M.P. Class-III (Non Ministerial) Forest Services Recruitment Rules, 2000 as well as advertisement issued by the M.P. Professional Examination Board regarding conduct of examination rules in which it has been specifically mentioned that the post of Forest Guard is a District Level Cadre and therefore, merit list shall be prepared district-wise. Since the petitioner has been appointed in Forest Division, Morena, therefore, if he is transferred to Kuno Wildlife Century, which is a different circle, then his seniority would be placed much below and this would affect his service prospects.
4. Learned counsel for the petitioner fairly submitted that impugned order includes a condition vide Clause No.IV in which it has been stipulated that their seniority would be placed in transferred district i.e. Kuno Wildlife Century on the basis of date of appointment. It is his submission that the concept of determination of seniority on 4 the basis of date of appointment may either adversely affect the service prospects of the petitioner or petitioner may gain from it, but the core question involved is that even if he gains in respect of seniority then it would adversely affect the prospects of Forest Guards at Kuno Wildlife Century. This creates anomalous situation.
5. He further referred the circular dated 06.12.2018 (Annexure P/7) issued by the Principal Chief Conservator of Forest, Bhopal in which relevant discussion is made. Prior to it, vide circular dated 07.10.2002 seniority of Forest Guards was maintained at Divisional Level but because of some problems crept into it, by the said circular of 2018 (Annexure P/7), seniority list of Forest Guards is maintained at district level. Therefore, according to counsel for the petitioner, if impugned transfer order bears endorsement that seniority shall be determined by way of date of appointment to the district where he has been transferred (Kuno Wildlife Century in the present case), then it would have repercussions over his service prospects.
6. Per contra, learned Government Advocate for the State opposed the prayer on the basis of instructions received that seniority of Forest Guards is maintained at district level as per Rules of 2000 and Circular of 2018, therefore, petitioner and other similarly placed employees need not to worry about their seniority. He referred the order dated 10.08.2021 passed in W.A.No.716/2021 (Annexure R-2 filed with 5 reply in W.P.No.13266/2021 Ajay Kumar Kadam Vs. State of M.P. & others) of the Division Bench of this Court and submitted that it was a case of Forester, who was transferred to a different circle and apprehending his loss of seniority. Taking into account the sanctity of seniority and service conditions of then appellant (forester), certain directions were given by the Division Bench of this Court in which it has been held that service conditions and service benefits coming out of the post cannot be put to disadvantage by change of circle. Therefore, Division Bench directed to maintain the seniority of Forester at circle level and if he is transferred from his parent circle even then his seniority in parent circle would not be adversely affected.
7. According to counsel for the respondents/State, as per Rules 2000 and Circular of 2018, seniority of Forest Guard is maintained at District Level and it shall be ensured accordingly.
8. Shri Vishram Sagar Sharma, Additional Principal Chief Conservator of Forest, Gwalior also substantiated the arguments. According to him, seniority of Forest Guards is maintained at District Level and no adversity would be caused if the petitioner and other similarly placed Forest Guards are being transferred to Kuno Wile Life Century. He submitted that it is a project of national importance wherein extinct carnivorous "Cheetah" is being brought from Namibia 6 (Africa) to rehabilitate at Kuno Wile Life Century. Since stringent conditions required availability of sufficiently trained human resources alongwith other facilities therefore, petitioner and other Forest Guards from District Morena and District Gwalior are being posted at Kuno Wile Life Century. Looking to the nature of project and requirement of human resources, it is imperative that petitioner and other Forest Guards continue to work at Kuno Wile Life Century and if any procedural or service related anomaly exists, then he is ready to reconcile the same and/or to refer the matter to the higher authorities including the State Government to address the problem of loss of seniority, if any, exists in respect of service conditions of petitioner and other Forest Guards who are being posted at Kuno Wile Life Century.
9. Heard the counsel for the parties at length and perused the documents appended thereto.
10. In the case in hand, petitioners are Forest Guards appointed in either District Gwalior or in Morena. As per Recruitment Rules, 2000 and advertisement issued by Vyapam, appointments to the post of Forest Guard are to be made district-wise and merit list is to be prepared accordingly. Even one of the conditions stipulates that a person who is appearing in one district cannot be allowed to appear in another district for same post, meaning thereby much sanctity has been accorded to merit list at district level so far as post of Forest Guard is 7 concerned.
11. When merit list of Forest Guard is maintained at district level, then even if any Forest Guard is transferred beyond the district on administrative convenience, for which respondents are very well authorized to do so, then in that condition, question of maintaining the seniority or loosing it, assumes importance.
12. Here, in the present case, impugned order dated 28.02.2022 (in W.P.No.7454/2022) refers the fact that seniority of a Forest Guard shall be maintained on the basis of date of appointment of that employee and this endorsement makes the case complexed and complicated for the reason that if a Forest Guard at Gwalior is being appointed on a particular date and transferred to Kuno Wile Life Century where some more Forest Guards were appointed on same date, then who would stand over and above inter se, would be the question. Another anomaly may crop up in respect of a person who is transferred to Kuno Wile Life Century and gets the seniority over and above, other Forest Guards of Kuno Wile Life Century District and resultantly gets promotion over and above them, then it would cause prejudice to the cause of those Forest Guards who were working in the said district under the bonafide belief that they would get promotion as per their seniority. These anomalies are only illustrative in nature and not exhaustive. Many more wrinkles may appear in coming days. 8 Therefore, the very concept of keeping the seniority of a Forest Guard who is transferred to Kuno Wile Life Century on the basis of date of appointment sans logic and justice both.
13. Rules of 2000, Circular of 2018 and rules of selection as published by Vyapam indicate that seniority of Forest Guard is being maintained at district level only and therefore, all benefits flowing out of it are to be preserved and accorded to the concerned employees without any prejudice.
14. Transfer is an incident of service and it is the prerogative of employer to post a particular employee as per administrative convenience. So far as transfer of petitioners as Forest Guard from Division Gwalior or Morena to Kuno Wile Life Century is concerned, same cannot be interfered with, however, their seniority has to be maintained as per Rules of 2000 and Circular of 2018 and rules published by Vyapam. Coupled with this fact, observation of Division Bench in the case of Phool Sahay Vs. State of M.P. and Ors. (W.A.No.716/2021) worth reiteration for guidance :-
"This Court does not see any reason for the service condition of petitioner being adversely affected by the impugned transfer order since it goes without saying that if a Forest Guard whose seniority is maintained at Circle Level is transferred out of his parent circle, then his seniority and promotional prospects available in parent circle would not be adversely affected. As and when any 9 occasion arises for grant of any service benefits to the petitioner or his contemporaries within his parent circle then the case of petitioner would also be considered notwithstanding the petitioner posted outside the parent circle"
15. In the considered opinion of this Court, seniority of Forest Guard cannot be compromised at the anvil of an incident of service i.e. Transfer. It ought to be maintained at district level and if required, necessary guidelines/circulars/orders reconciling the whole dispute can be passed by the respondents/State or Principal Chief Conservator of Forest as the case may be, so that petitioners while posted at a place other than their parent district may not loss their seniority in respect of gradation list or promotional prospects.
16. Respondents are directed to do the needful within three months from the date of production of certified copy of this order to the concerned authorities, if required so.
17. Petition preferred by the petitioners so far as they have challenged the transfer to Kuno Wildlife Century is concerned, stands rejected. However, their arguments regarding keeping intact the seniority at district level is concerned, is hereby accepted and to that extent, petition stands allowed.
18. Their seniority shall be maintained at their parent district and they would not suffer any prejudice or adversity so far as loss of 10 seniority and promotional prospects in future are concerned. It is expected from the State to decide the intervening period of employees (from date of filing of these petitions till today) in accordance with relevant rules and concept of model employer after giving due consideration to the interim order passed from time to time.
19. With the aforesaid observation, petition stands partly allowed and disposed of accordingly.
(Anand Pathak)
Ashish* Judge
ASHIS
H Digitally signed by ASHISH CHAURASIA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=bf81a9adb1da24e4bc7b5195154c3d4de08c6bb9303e52e2e7e CHAU 728d9bac85bd3, pseudonym=CA2EA6EDDF504F8F9C2790FA9A0FD201D0242B64, serialNumber=A926F3CBF979ECA6A4C477577EEDBA3AB4F94593A930B 98DAE1B0AD16F90B5FD, cn=ASHISH CHAURASIA Date: 2022.04.08 16:55:18 -07'00' RASIA