Satish Ramteke vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.

Heard learned counsel for the parties.

W.P. (S) Nos. 2706, 2707, 2708, 2709, 2713, 2714, 2715, 2716, 2710, 2711 & 2712 of 2013, involve common facts and common question of law and, as such, they are being decided by this common order. The petitioners are working as Assistant Accounts Officer/Assistant Grade - II/Assistant Grade - III in different Janpad Panchayats within the territorial limits of Zila Panchayat, North Bastar, Kanker.

By filing the present writ petitions, the petitioners herein are questioning the legality and validity of the order dated 26-8-2013 by which the Chief Executive Officer, Zila Panchayat, North Bastar, Kanker, has transferred the petitioners to different Janpad Panchayats under the same Zila Panchayat.

Learned counsel appearing for the petitioners would submit that even if Rule 27 of the Chhattisgarh Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 (for short "the Rules, 1999") empowers the concerned Zila Panchayat to transfer any employee from one Janpad Panchayat to another Janpad Panchayat and the seniority is also protected, yet in the cases on hand, the seniority of the petitioners is affected because there may be different circumstances viz. (i) some of the petitioners are likely to be promoted in near future in the present place of posting; (ii) at the transferred place a person senior to the petitioner in the cadre may already be posted, which will affect his chance of promotion to the next higher post at the transferred place, etc.

Learned counsel would further submit that seniority of the employees of a Janpad Panchayat is maintained at the Janpad Panchayat level and there is no centralised gradation list maintained at the Zila Panchayat level, therefore, despite the legislative mandate, in practical terms, the seniority would be affected and thus, the impugned order deserves to be quashed, because it may operate harshly against the petitioners depriving them of the benefits, which may be accorded to them, in the present place of posting in the future.

Countering the aforesaid submissions of the learned counsel appearing for the petitioners, learned counsel appearing for the State as well as learned counsel appearing for the respondent No. 2/Zila Panchayat, North Bastar, Kanker, would submit that once the legislation protects the seniority of the petitioners, the petitioners would not lose their seniority, therefore, the arguments raised by the petitioners, being based on hypothetical grounds, are not sustainable. Learned counsel would further submit that till such event happens, which actually affects the seniority, no cause of action accrues for filing the writ petition.

Rule 27 of the Rules, 1999, along with its amendment published in the gazette notification dated 30-11-2012, reads as under:

Appointment of Panchayat employee to and his 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;

Provided that in the public interest the Chief Executive Officer of the concerned Zila Panchayat may transfer any employee from one Janpad Panchayat to another Janpad Panchayat within the district and in case of such transfer, the seniority of the transferred employee shall not be affected:

Provided further that in the public interest the Commissioner cum Director, Panchayat may transfer any employee of Panchayat services, working with the Zila Panchayat, from one Zila Panchayat to another Zila Panchayat in the state and in case of such transfer, the seniority of the transferred employee shall not be affected.

On a bare reading of the first proviso to Rule 27 of the Rules, 1999, it is manifestly clear that upon transfer from one Janpad Panchayat to another Janpad Panchayat, the concerned employee does not lose his seniority, therefore, any argument contrary to provisions of law cannot be accepted. It may happen in a given case that because of availability of a senior person in the cadre at the transferred place, the transferred employee may be in a disadvantageous position with respect to promotion to the next higher post or in a given case he is most likely to be promoted in his near future at his present place of posting and because of transfer he may lose that chance of promotion, but to say that the said event which may or may not happen in future effects his seniority in praesenti is not sustainable.

While dealing with similar legislative power wherein the State Government has been empowered to transfer employees of one Municipal Council to another Municipal Council u/s 94(7) of the Chhattisgarh Municipalities Act, 1961 and u/s 58(6) of the Chhattisgarh Municipal Corporation Act, 1956, the Supreme Court in The State of Madhya Pradesh Vs. Shankar Lal and Ors, had held that such power should be exercised by the State Government i.e. transferring authority very sparingly in exceptional cases and not in a routine manner.

The main thrust of argument raised by the learned counsel appearing for the petitioners is that the impugned transfer order would affect the chance of promotion of the petitioners to the next higher post. In this regard, suffice it would be to refer to the decision of the Supreme Court rendered in Paresh Chandra Nandi Vs. Controller of Stores, N.F. Railway, Pandu and Others, , wherein the Supreme Court held as under:

The question is, could the railway authorities, under the rules, transfer or not any one or more of the said staff so absorbed from the posts where they were allotted to any other department or departments where such transfer or transfers became administratively necessary. We may note that the transfer of lien enjoyed by Respondents 4 to 8 in the Head Office was not a mere paper transfer, for, Respondents 4 to 8 were actually transferred from the Head Office Wing to the Stores Department. Since they were permanent employees, enjoying liens in their respective posts to which they were confirmed since August 15, 1947, ordinarily their conditions of service e.g. salary and seniority, could not be affected to their prejudice as a result of their transfer to any other department or wing. Once, therefore, they were transferred from one permanent post to another permanent post they would be entitled to hold substantively the permanent posts to which they were transferred bringing along with them the seniority which they had in the posts from which they were transferred. If that were not so, the result of a transfer from one post to another would mean that a transferred employee would have to start de novo, from a scratch and would consequently stand last in the department to which he is transferred. In actual practice, therefore, no transfer can be effected from one department to another without materially affecting the chances of promotion of such an employee. As we shall presently show, the rules do not contemplate such a position.

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Two things are thus clear, (1) that the competent authority has the power to transfer a railway employee even though he holds a permanent post from one such post to another under Rule 2011, and (2) that once such an employee is transferred from one permanent post to another permanent post, he is entitled to a lien in respect of that another post to which he is permanently posted as a result of the transfer. This is the effect of Rule 2007. That being so, the appellant could not possibly contend that the transfers of Respondents 4 to 8 to the Stores Department were contrary to the Fundamental Rules or that the transfer of their liens from the posts to which they were posted in 1947 to the posts in the Stores Department was in any manner contrary to the rules.

Thus, what has been laid down by the Supreme Court in Paresh Chandra Nandi (supra) is that as long as power to transfer is provided under the rules and the employee is transferred to a permanent post, merely because the transfer may affect his chance of promotion in future, would not render the exercise of power illegal.

On a bare perusal of the impugned transfer order, it would appear that there is a change of place of posting of several employees from one place to another and vice-versa, therefore, it, prima facie, appears that the order has been passed in a routine manner and since it is expected of the concerned transferring authority to exercise the power objectively keeping in view the administrative exigency, but at the same time exercise the power very sparingly in exceptional cases and not to unnecessarily affect the employee and put him in a highly disadvantageous position with respect to his service career, this Court deems it appropriate to dispose of all the writ petitions with a direction that each of the petitioner shall submit representation before the Chief Executive Officer, Zila Panchayat, North Bastar, Kanker, explaining to the said authority as to how the impugned transfer order is presently operates harshly against them and if the grounds raised in the representation are found germane and genuine, the concerned competent authority shall pass appropriate order on the representation, in accordance with law and on its own merits, as early as possible preferably within a period of three months from the date of submission of representation.

It is made clear that till the representations of the petitioners are decided by the concerned authority, the petitioners shall be allowed to continue to work at their respective present place of posting. No order as to costs.