Jitendra Pal Mongiya vs Aamjanta Kolgavan & Ors.

The petitioner in this petition has challenged promotion of respondent No.5. He has also sought a direction to the Janpad Panchayat, Prithvipur, District Tikamgarh/respondent No.3 to consider his case for promotion.

Initially, the petitioner was appointed on 07.03.1986 in contingency establishment. He was regularized w.e.f. 10.12.1986. The respondent No.5 was transferred from W.P. No. 4473 of 2002 Janpad Panchayat, Jatara to Janpad Panchayat, Prithvipur as L.D.C. He was promoted vide order dated 16.04.1990 on the post of U.D.C. ignoring the petitioner. The petitioner made representations and complaint to the authorities of Panchayat and Social Services. The Deputy Director, Panchyat and Social Services, District Tikamgarh conducted an inquiry and observed that the promotion of the respondent No.5 to the post of U.D.C. was illegal and irregular. The resolution passed by the Janpad Panchyat in this regard was also not proper. It is observed in the inquiry report that the respondent No.5 was working as additional in the Janpad Panchayat Prithvipur and he was not eligible to be considered for promotion to the post of U.D.C. The post fell vacant on 17.04.1990. On the same date, the Janpad Panchayat passed the resolution in regard to promotion of respondent No.5. The post was sanctioned on 19.01.1987. It is mentioned in the sanction letter that the post would be filled up from the employees working in the Janpad Panchayat.

The Deputy Director, Panchayat and Social Services, District Tikamgarh had directed the Chief Executive Officer, Janpad Panchayat Prithvipur to take action in the matter, but, no action had been taken.

The respondent No.3-Janpad Panchyat, Prithvipur in W.P. No. 4473 of 2002 its return admitted the fact that the petitioner had made a complaint against promotion of the respondent No.5 and the promotion was found improper on inquiry. The respondent No.3 further pleaded that the complaint was made belatedly. It is further pleaded that both the posts available in the Janpad Panchayat of U.D.C. are occupied and there is no vacancy. The petitioner was transferred to Janpad Panchayat, Tikamgarh, thereafter, to Janpad Panchyat, Niwari, hence, he cannot claim any promotion.

The State/respondents No. 1, 2 & 3 in its reply pleaded that the dispute is between the respondent No.3 and the respondent No.5, hence, the State is not at all concerned in regard to promotion of the petitioner.

The respondent No.5 in its return pleaded that the petitioner has filed the petition after a period of 12 years from the date of order of promotion of the answering respondent dated 16.04.1990. The Collector, Tikamgarh transferred the answering respondent from Janpad Panchyat, Jatara to Janpad Panchayat, Prithvipur, Tikamgarh on administrative ground. Seniority on the post of L.D.C. is to be reckoned w.e.f. 1983, and on transfer, he was entitled for seniority, hence, he was rightly promoted on the post of U.D.C. The answering respondent was appointed on 31.01.1983 at Janpad Panchayat, Jatara, hence, the W.P. No. 4473 of 2002 answering respondent is senior to the petitioner.

From the pleadings of the petitioner, the respondent No.3-Janpad Panchayat and the respondent No.5, it is clear that the respondent No.5 was not appointed in Janpad Panchayat, Prithvipur as L.D.C. He was transferred from Janpad Panchayat, Jatara to Janpad Panchayat, Prithvipur vide order dated 14.07.1988. The petitioner was appointed as L.D.C. in Janpad Panchayat, Prithvipur, District Tikamgarh-respondent No.3.

A Division Bench of this Court in the case of Balram Nayak vs Janpad Panchayat, Isagarh and others, 2004 (1) M.P.L.J. 42 has held that a transferred employee has no right to be considered for promotion in another Janpad Panchayat. The employee who is recruited in the Janpad Panchayat has right to be considered for promotion and the employee would be eligible for consideration of promotion in his parent Janpad Panchayat. In the aforesaid judgment, the Division Bench has considered the provisions of Madhya Pradesh Janpad Panchayat Employees (Qualification, Recruitment and Conditions of Service) Rules, 1976 (hereinafter referred as ''the Rules of 1976''). The Division Bench has held as under:

"9. Under Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam (hereinafter, referred to as the ''Adhiniyam'') Gram W.P. No. 4473 of 2002 Panchayats, Janpad Panchayats and Zila Panchayats are bodies cooperate having perpetual succession and a common seal and can sue or to be sued in its name.

Section 69 of the Adhiniyam confers powers upon the State Government or prescribed authority for appointment of Secretary for Gram Panchayat and Chief Executive Officer for Janpad Panchayat and Zila Panchayat. Section 70 of the Adhiniyam provides that subject to provisions of Section 69 every Panchayat may with previous approval of the prescribed authority appoint such other officers and servants as it considers necessary for efficient discharge of its duties.

Qualification, method of recruitment, salary, leave allowance and other conditions of service including disciplinary matters of such officers and servants shall be such as may be prescribed. Thus, every Panchayat is conferred with the power to make appointment of such other officers and servants as it considers necessary for efficient discharge of its duties. At the relevant time, Madhya Pradesh Janpad Panchayat Employees (Qualification, Recruitment and Conditions of Service) Rules, 1976. These rules have been under the Madhya Pradesh Panchayats Act, 1962. "Janpad Panchayat Employee" means a person to be appointed or borne on the cadre of the Janpad Panchayat and he is an employee of the concerned Janpad Panchayat. Rule 13 provides for probation and confirmation of an employee. Rule 16 relates to seniority which provides that seniority of a direct recruit or a promoted employee appointed on probation shall be counted during his probation from the date of his appointment to the post. Rule 26 provides for control and discipline. It provides that all the Janpad employees shall be under the administrative control of the Janpad Panchayat through its Chief Executive Officer. Power to impose penalty is provided under Rule 27. Rule 31 provides W.P. No. 4473 of 2002 for disciplinary action against the person who is on deputation to a Janpad Panchayat. It further provides that for suspension or imposing major penalties, matter should be referred to the Department from where his services have been taken on deputation. Thus, at the relevant time, respondent No. 2 Sunil Singh Vaishya (petitioner before the Writ Court) was on deputation at Janpad Panchayat, Isagarh and was not an employee of Janpad Panchayat, Isagarh.

Division Bench of this Court in the case of Janpad Panchayat Tatha Zila Panchayat Karmachari Sangh and Ors. v. State of M.P. and Ors. [1998 (1) JLJ 336], has considered the question regarding entitlement of Panchayat employees to pension and gratuity in accordance with law. This judgment relates to sanction and grant of pension to the Secretaries of Gram Panchayat. It was held that employees working in the Panchayat right from 1962 onwards have been the employees of Panchayats and can not be treated as employees of the State Government.

Considering the scope of 73rd amendment in the Constitution it was held that employees of the Panchayats are not the employees of the State and they will be employees of Panchayats and Rules of 1976 will be applicable for payment of pension.

Other cases referred to relate to seniority in the cadre, but in the present case, petitioner in the writ petition is an employee of Janpad Panchayat, Chachoda whereas appellant Balram Nayak is an employee of Janpad Panchayat, Isagarh. Therefore, as and when vacancy at Isagarh will occur it will be filled up by the employee recruited by the Janpad Panchayat, Isagarh. Respondent though posted at Isagarh retains his lien at Chachoda and will have no right of promotion. Therefore, we hold that petitioner in the writ petition has no right W.P. No. 4473 of 2002 of promotion at Janpad Panchayat, Isagarh. He will be eligible for promotion in his parent Janpad Panchayat as and when vacancy occur. Reasoning of the learned Single. Bench that petitioner in the writ petition was appointed earlier at different Janpad Panchayat will be entitled for promotion at Janpad Panchayat, Isagarh is not proper and is set aside."

In view of law laid down by the Division Bench of this Court, the respondent No.5 was not eligible to be considered for promotion to the post of U.D.C. at Janpad Panchayat, Prithvipur, District Tikamgarh. He was eligible to be considered for promotion under the vacancy of Janpad Panchyat, Jatara, where he was appointed as L.D.C. at the relevant time in accordance with the Rules of 1976. Apart from this, the respondent No.5 was not in the regular cadre of L.D.C. at the time of his consideration for promotion to the post of U.D.C. at Janpad Panchayat, Prithvipur- respondent No.3. He was working as additional employee on transfer.

In regard to delay, the Deputy Director, Panchayat and Social Service, District Tikamgarh had conducted the inquiry and he had found the promotion illegal. In spite of that, no action was taken by the respondent No.3. The resolution passed by the Panchayat was not approved by the Deputy Director in regard to promotion of respondent No.5, hence, it W.P. No. 4473 of 2002 cannot be held that the petition is liable to be dismissed on the ground of delay and latches.

Now, question is that what relief can be granted looking to the facts of the case? The respondent No.5 was promoted in the year of 1990. He may be entitled for promotion in his parent Janpad Panchayat i.e. Janpad Panchayat, Jatara and the promotion of the respondent No.5 at Janpad Panchayat, Prithvipur-respondent No.3 is against the recruitment rules and against the law. Hence, the petition is disposed off with the following directions:

(1) The resolution of Janpad Panchayat dated 12.04.1990 and the promotion order of the respondent No.5 to the post of U.D.C. dated 16.04.1990 are hereby quashed.

(2) It is directed that the case of the respondent No.5 be considered for promotion to the post of U.D.C. in his parent Janpad Panchayat i.e. Janpad Panchyat Jatara, if vacancy arose at that time in that Janpad Panchayat, within a period of three months from the date of receipt of copy of this order. Upto that period, the respondent No.5 be permitted to continue as U.D.C., on account of quashment of the promotion order, because the respondent No.5 has worked on the post of U.D.C., his salary, which has been paid to him, may not be recovered.

(3) The respondent No.3-Janpad Panchayat, Prithvipur, W.P. No. 4473 of 2002 District Tikamgarh shall consider the case of the petitioner for promotion from the date when the respondent No.5 was promoted and if he be found suitable he be granted promotion to the post of U.D.C., however, looking to the inordinate delay in approaching the Court, the petitioner would not be eligible for arrears of salary, but, he would be entitled consequential benefits including fixation of pay and salary.

No order as to costs.