Omprakash vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the transfer order dated 25-6-2010 (Annexure P-1), whereby the petitioner working as Panchayat Karmi (Secretary) in Gram Panchayat, Puhputra, Janpad Panchayat Lakhanpur, has been transferred to Gram Panchayat, Jamdi, Janpad Panchayat, Lundra. The facts, briefly stated are that the petitioner was initially appointed by the Chief Executive Officer, Janpad Panchayat, Lakhanpur as Panchayat Karmi under the provisions of the Chhattisgarh Panchayat Service (Recruitment and General Conditions Services) Rules, 1999 (for short "the Rules, 1999"). Thereafter, the petitioner was appointed as Secretary under the provisions of Section 69 of the Panchayat Raj Adhiniyam, 1993 (for short "the Adhiniyam, 1993").

The ground of challenge as has been pleaded as also argued by the learned Counsel appearing for the petitioner is that, the Chief Executive Officer, Zila Panchayat, Surguja, is not competent to transfer the Panchayat Karmi (Secretary) to any other Janpad Panchayat without consent of the other Panchayat, as prescribed under Rule 27 of the Rules, 1999 and, as such, the transfer order is bad and not sustainable in the eyes of law.

Shri Sao, learned Counsel appearing for the State/respondent Nos. 1 and 3, submits that the appointment of the petitioner initially as Panchayat Kari under the guidelines dated 29-8-2008 (Annexure R-1) and thereafter, he was appointed as Panchayat Secretary under the provisions of Section 69 of the Adhiniyam, 1993. Thus, Rule 27 of the Rules, 1999 would not be applicable.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Section 70 of the Adhiniyam, 1993 provides for appointment of such other officers and servants as it considers necessary for the efficient discharge of its duties. It further provides 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.

In exercise of powers conferred under the provisions of Section 70 of the Adhiniyam, 1993, the State Government has framed the following rules:-

(1) ''Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997''.

(2) ''Panchayat Services (Conduct) Rules, 1998''.

(3) ''Panchayat Service (Recruitment and General Conditions of Service) Rules, 1999''.

(4) ''Panchayat Service (Discipline and Appeal) Rules, 1999''.

(5) ''Panchayat (Class III Executive Agriculture Service Recruitment) Rules, 1999''.

(6) ''Panchayat (Gramin Vikas Service Recruitment) Rules, 1999''.

(7) ''Panchayat (Women and Child Development Service Recruitment) Rules, 1999''.

(8) ''Panchayat (Class III Executive Horticulture Service Recruitment) Rules, 1999''.

(9) ''Panchayat Contract Service (Indian System of Medicine, Unani and Homoeopathy )Rules, 1999''.

(10) ''Panchayat (Veterinary Service Recruitment) Rules, 1999''.

(11) ''Panchayat Fisheries Service (Recruitment) Rules, 1999''.

(12) ''Panchayat (Health Service Recruitment) Rules, 1999''.

(13) ''Panchayat Service (Kala Karmi) Recruitment Rules, 1999''.

The guidelines were also framed u/s 70(1) read with Section 69(1) of the Adhiniyam, 1993. Thus, the guidelines became a part of delegated legislation and have the statutory force. Under Schedule I to the said guidelines wherein a provision was made for promotion of Panchayat Karmis.

Rule 2 of the Rules, 1999 makes it clear that the provisions of rules shall apply to all the posts in Zila Panchayat and Janpad Panchayat except to the posts on a contingency paid establishment, or work-charged establishment, or daily wage establishment or posts to which appointments are made on part time basis.

''Panchayat'' is defined under Rule 3 (d) of the Rules, 1999, i.e., ''Panchayat'' means a Janpad Panchayat and a Zila Panchayat.

''Panchayat Service'' is defined under Rule 3(e) of the Rules, 1999, i.e., ''Panchayat Service'' means the service of Zila Panchayat or Janpad Panchayat, as the case may be, under sub-section (1) of Section 70 of the Act.

Even if the Panchayat Karmi is appointed under the above stated guidelines, which were framed in exercise of powers conferred u/s 70 read with Section 69 of the Adhiniyam, 1993, the Panchayat Karmi as well as the Panchayat Secretary became a member of Panchayat Service as defined hereinabove.

Panchayat Karmis are appointed, on the recommendation of Gram Panchayat approved by Gram Sabha, by the Janpad Panchayat. The present petitioner was appointed as Panchayat Secretary under the provisions of Section 69(1) of the Adhiniyam, 1993 wherein his substantive post continues to be Panchayat Karmi.

Rule 27 of the Rules, 1999 provides that no employee of the Panchayat, i.e., Janpad Panchayat or Zila Panchayat can be posted in the Panchayat service of other Panchayat except by mutual agreement between the two Panchayats.

Condition (ii) under Rule 27 makes it clear that any person appointed in other Janpad Panchayat would be junior most for the purpose of seniority and, as such, if a member of Panchayat service of one Panchayat is appointed in other Janpad Panchayat without an agreement, the said employee would be prejudiced, as he would be placed at the junior most in the seniority list.

The instant case, though it does not seem to be a case of posting from one Janpad Panchayat to other Janpad Panchayat. In that event, it can either be a case of deputation or transfer. Transfer cannot be made from one Janpad Panchayat to other Janpad Panchayat, as the Panchayat Karmi is a member of Panchayat service of a particular Janpad Panchayat.

It is well settled principle of law the employee cannot be sent to other department on deputation without consent of the employee concerned. In that event also the order of transfer is bad, as admittedly no consent of the employee or the other Panchayat has been taken. Looking from all angles, the transfer of the petitioner is bad, vitiated and not sustainable in the eyes of law.

The Supreme Court in BCPP Mazdoor Sangh and Another Vs. N.T.P.C. and Others, observed as under:-

The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre-decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier, in the case on hand, the employees are neither party to tripartite agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Article 14 of the Constitution of India. Similar view has been taken by this Court in H.L. Trehan Vs. Union of India. In Para 11 of the judgment this Court observed as under :-- (SCC pp. 769-70)

It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing-conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice.

(Emphasis supplied)

In the case on hand, admittedly, the transfer order of the petitioner was passed without obtaining prior consent of the petitioner as well as other Panchayat, which is in clear violation of Rule 27 of the Rules, 1999.

For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present case, the transfer order dated 25-6-2010 (Annexure P-1) in respect of the petitioner is quashed. Accordingly, the writ petition is allowed to the above extent. There shall be no order as to costs.