Madhya Pradesh High Court
Biharilal Jaiswal vs State Of M.P. And Others on 1 August, 2001
Equivalent citations: 2001(4)MPHT25
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. In all these writ petitions common questions of law and fact arise and, as such, they are being disposed of together.
2. Facts lie in a narrow compass. Petitioners are aggrieved by their transfers from one Janpad Panchayat to another Janpad Panchayat by the Zila Panchayat. It is the stand of the petitioners that they being the employees of one Janpad Panchayat, cannot be transferred to another Janpad Panchayat, and Zila Panchayat had no authority to transfer them. Stand of the Zila Panchayat is that under Section 52 (1) (xii) of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Act') one of the functions of the Zila Panchayat is to administer and control the employees appointed and posted in Panchayats including staff transferred by the State Governments to the Panchayats and in exercise of its function, it had transferred the petitioners from one Janpad Panchayat to another. It is common ground that all the employees who have been transferred are Class III employees.
3. In view of the rival stand, what falls for determination is as to whether an employee of the Janpad Panchayat can be transferred to another Janpad Panchayat by the Zila Panchayat in exercise of its function under Section 52 (1) (xii) of the Act.
4. By the Constitution (73rd Amendment) Act, 1992 Part-IX in the Constitution, has been inserted consisting Articles 243 to 243O. Article 243B provides for constitution, in every State, the Panchayats at the village, intermediate and district levels. In the light of the Constitutional mandate, the State Legislature enacted the Act. Section 10 of the Act reads as follows:--
"Establishment of Gram Panchayat, Janpad Panchayat and Zila Panchayat.-- (1) There shall be a Gram Panchayat for every village specified as a village for the purposes of this Act under Section 3.
(2) The Governor may, by notification, divide a district into blocks. The notification shall specify the name of every such block, its head quarters and the area comprised therein. For every block there shall be a Janpad Panchayat which shall be known by the name of the block.
(3) There shall be a Zila P,anchayat for every district."
Thus Section 10 (1), 10 (2) and 10 (3) of the Act provide for establishment of Gram Panchayat for every village, Janpad Panchayat for every block and Zila Panchayat for every district. The Panchayat constituted at the village level is called Gram Panchayat, intermediate level as Janpad Panchayat and district level as Zila Panchayat.
5. Section 11 of the Act gives legal status to the Panchayats. It reads as follows:--
"Incorporation of Panchayat.-- Every Gram Panchayat, Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, there for in the order under Section 3 for village or notification under Section 10 for Janpad Panchayat and Zila Panchayat as the case may be, having perpetual succession and a common seal and shall by the said name, sue and be sued and shall subject to the provisions of this Act and the rules made thereunder, have power to acquire, hold or transfer property movable or immovable, to enter into contracts and to do all other things necessary for the purpose of this Act."
Thus Section 11 of the Act makes every Gram Panchayat, Janpad Panchayat and Zila Panchayat a body corporate having perpetual succession and a common seal which can sue and be sued in its name. Thus Section 11 of the Act makes every Panchayat a juristic person.
6. Section 69 of the Act, inter alia confers power to the State Government or the prescribed authority for appointment of Secretary for Gram Panchayat and Chief Executive Officer for Janpad Panchayat and Zila Panchayat. Section 70 of the Act confers power on every Panchayat to make appointment of such other officers and servants as it considers necessary for the efficient discharge of its duty. Section 70 (2) of Act provides for prescription of qualification, method of recruitment, salaries, leave, allowance and other conditions of service including disciplinary matters of such officers and servants. Section 70 of the Act reads as follows :--
"Other officers and servants of Panchayat.-- (1) Subject to the provisions of Section 69 every Panchayat may with previous approval of prescribed authority appoint such other offices and servants as it considers necessary for the efficient discharge of its duties. (2) The qualification, 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."
7. In exercise of the power conferred by sub-section 2 of Section 70 of the Act, the State Government made the Madhya Pradesh Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 (hereinafter referred to as the Rules). Rule 3 (b) of the Rules defines appointing authority. It reads as follows :--
" "Appointing Authority" in respect of service, means the authority shown as appointing authority for the post concerned in the Schedule V."
The expression 'Appointing Authority' means the authority shown as appointing authority for the post concerned in Schedule V of the Rules. For a Janpad Panchayat the appointing authority for Class-Ill and Class-IV posts, is the Chief Executive Officer with the prior approval of the General Administration Committee of the Panchayat.
8. Rule 34 of the Rules which is relevant for the purpose, reads as follows:--
"Control and Discipline.-- All the Panchayat employees shall be under the administrative control of the Panchayat through the Chief Executive Officer."
Aforesaid rule vests control and discipline of all the Panchayat employees to the Panchayat through its Chief Executive Officer. Rule 30 of the rule provides for maintenance of gradation list for every category of Panchayat employees in which the names of employees are required to be arranged in order of seniority in that category of service. Rule 27 provides for appointment of employee of one Panchayat to another Panchayat. Rule 27 of rule reads as follows:--
"Appointment of Panchayat employee to other Panchayat.-- 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 receive 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."
A plain reading of Rule 27 of the Rules makes it clear that the appointing authority on application made by any employee of Panchayat Service of another Panchayat may appoint him to same or equivalent post and on such appointment he shall rank junior most in the cadre. Such an appointment can be made only on an application made by the employee.
9. From the Scheme of the Act and the provisions of the Rules referred to above, it is absolutely clear that every Panchayat is a juristic person and has the power to make appointment of officers and servants and their control and discipline are with the Panchayat through its Chief Executive Officer. Gradation List of the employees is to be maintained for every category of Panchayat employees and an employee of the Panchayat service can be appointed to another Panchayat to a same or equivalent post but that can be made only on an application of the employee and in case of such appointment such an employee shall be at the bottom of the gradation list. From the Scheme of the Act and the Rules what is further clear is that respective Panchayat is the employer of its officers and servants and transfer from one Janpad Panchayat to another Janpad Panchayat could tantamount to change of the employer.
10. In view of what has been found above the next question is as to whether in the present state of law an employee of Janpad Panchayat can be transferred to another Janpad Panchayat. Section 52 (1) (xii) of the Act, which respondents contend is the repository of the power to transfer an employee of one Janpad Panchayat to another, reads as follows :--
"Functions of Zila Panchayat.-- (1) Subject to the provisions of this Act and rules made thereunder and subject policy, directions, instructions, general or special orders as may be issued by the State Government from time to time, it shall be the duty of Zila Panchayat to-
(i) ......
(ii) ......
(iii) ......
(iv) ......
(v) ......
(vi) ......
(vii) ......
(viii)......
(ix) ......
(x) ......
(xi) ......
(xii) administer and control the employees appointed and posted in Panchayats including staff transferred by the State Government to the Panchayats;
Explanation : The administration and control of the staff transferred by the State Governments shall include the exercise of such power as may be defined by the State Government from time to time by special or general order."
11. I have heard Shri Sanjay K. Agarwal for the petitioner in (W.P. 3942/2000), Miss Malti Dadaria for the petitioner in (W.P. 3947/2000, W.P. 4339/2000 and 4512/2000), Shri Vijay Naik in (W.P. 4444/2000) and Shri Vivckanand Awasthy and Shri K.C. Gildiyal, G.A. and Shri Mukesh Agarwal for the respondents.
12. Even if I assume that the expression "administer and control the employees", as used in Section 52 (1) (xii) of the Act may imply that one of the functions of the Zila Panchayal is to effect transfer, but the question is as to whether in exercise of such function the Zila Panchayat can transfer an employee from one Janpad Panchayat to another. In other words can the Ziia Panchayat change the employer without the consent of the employees. Explanation to Section 52 (xii) of the Act provides that the function of "ad-minister and control of the employees" shall include the exercise of such powers as may he defined by the State Government from time to time by special or general orders. Nothing has been brought to my notice to show that the State Government had by special or general order has conferred the power to Zila Panchayat for transfer of employees of one Janpad Panchayat to another. In my opinion, the power of the Janpad Panchayat cannot be equated with the power of the State Government under Section 58 (5) of the M.P. Municipal Corporations Act by which State Government has been conferred with the power to transfer on deputation of any officer and servant of a Municipal Corporation to any other Municipal Corporation as in such cases Section 58 (6) of the said Act had made it abundantly clear that officers and servants so transferred shall have lien on the post held in the parent Corporation, not be put to disadvantageous position in respect of remuneration and shall also be entitled to deputation allowance. In the absence of any special or general order by the State Government, the Zila Panchayal cannot, in the garb of "administer and control of employees" can change their employer by transferring them from one Janpad Panchayat to another without their conscnl. The view which I have taken is fortified from the decision of the Supreme Court in the case of Jawaharlal Nehru University Vs. Dr. K.S. Jawatkar and others (AIR 1989 SC 1577) in which it has been held as follows :--
"It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another.
The consent, may be expressed or implied. We do not find it, necessary to refer to any case law in support of this conclusion."
13. In the result, all the petitions are allowed. Impugned orders of transfers are quashed. In the facts and circumstances of the case, there shall be no orders as to costs.
14. Writ Petitions allowed.