Sura Ahirwar vs The State Of Madhya Pradesh
2021 Latest Caselaw 3948 MP

                                  1                              WP-14342-2020
        The High Court Of Madhya Pradesh
                   WP-14342-2020
            (SURA AHIRWAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)


Jabalpur, Dated : 04-08-2021
      Heard through Video Conferencing.

      Shri Praveen Kumar Verma, learned counsel for petitioner.
      Shri Devdatt Bhave, learned Panel Lawyer for respondent/State.

Shri R. S. Jaiswal, learned Senior Counsel with Shri Krishan Kumar Gautam, learned counsel for intervener.

Petitioner has filed this writ petition challenging order dated 10.09.2020 contained in Annexure-P/3. By said order, petitioner, who was suspended vide order dated 17.04.2020, was reinstated and he was posted in Janpad Panchayat Rajnagar.

Counsel appearing for petitioner submitted that order dated 10.09.2020 is punitive in nature and have adverse civil consequences on him. Petitioner, who was working in Gram Panchayat Gaurihar, was posted to Janpad Panchayat Rajnagar. As per Clause-4 of transfer policy of Panchayat and Rural Development Department, Bhopal dated 26.03.2018, if a person is

transferred within Division or outside the District, then such person is placed at the bottom of seniority list of the cadre on which he has been transferred/posted. Counsel appearing for petitioner submitted that seniority of petitioner will be affected and, therefore, order dated 10.09.2020 is bad in law and deserves to be quashed.

Counsel appearing for State relied on Full Bench judgment reported in 2015 (4) MPLJ 406; Asif Mohd. Khan Vs. State of M.P. and others. In said case, it was held that competent authority can pass order revoking suspension of employee and can also transfer him at other place. The scheme of the Rules of 1966 does not prohibit, either expressly or impliedly, passing of a composite order by which authority who is empowered under the Rules to revoke the suspension as also to transfer the concerned employee. It is open for competent authority to revoke suspension and transfer the employee 2 WP-14342-2020 to any other place in public interest. Employee does not have any vested right to continue at a place where employee was posted at the time of suspension. In view of aforesaid, counsel appearing for State submitted that there is no illegality in the order and petition may be dismissed.

Heard the counsel appearing for petitioner as well as respondents.

Question which arises before this Court is whether petitioner suffers adverse civil consequences on being posted at Janpad Panchayat, Rajnagar or not?

Counsel appearing for petitioner has relied on Clause-4 of transfer policy of Panchayat and Rural Development Department dated 26.03.2018 and had submitted that petitioner will be placed at last position in seniority list of same cadre and, therefore, his seniority will be compromised, if order dated 10.09.2020 is given effect.

Petitioner has also filed Panchayat (Recruitment & General Conditions of Services) Rules, 1999. Rule 27 of said Rules provides as under:-

"27. Appointment of Panchayat employ 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 received 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."

As per said Rules, if an employee of Panchayat service makes an application to be appointed in other Panchayat, then he may be appointed to same or equivalent post in the Panchayat service subject to condition that such person will receive junior most rank for purpose of seniority in the cadre of post to which he is appointed, as it stands on the date of appointment.

3 WP-14342-2020 Rule 27 of Panchayat (Recruitment & General Conditions of Services) Rules, 1999 is to be read along with transfer policy dated 26.03.2018. A person will be assigned junior most rank in the cadre, if he is transferred from one Janpad Panchayat to other Janpad Panchayat or to other District, if transfer/posting is made on basis of his application. Rule 27 of Panchayat (Recruitment & General Condition of Services) Rules, 1999 shall be applicable in cases where an employee of Panchayat service seeks voluntary transfer and files an application. Such administrative instructions can not override the rules therefore Clause-4 of transfer policy will only be applicable in case of voluntary transfer and not otherwise. In cases of transfer on administrative exigency, Clause-4 of administrative instructions will not be applicable.

In view of aforesaid discussion, petitioner will not suffer any adverse civil consequences due to order dated 10.09.2020 and period of service in Janpad Panchayat Gaurihar shall also be counted for purposes of seniority of petitioner in Janpad Panchayat Rajnagar.

With the aforesaid direction, writ petition filed by petitioner is disposed of.

C.C. as per rules.

(VISHAL DHAGAT) JUDGE

sp/-

SUNIL Digitally signed by SUNIL KUMAR PATEL DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

KUMAR 2.5.4.20=3ad456309c8cfa67fdf9acdac6949bbc6ea 3342f02b1af1bdaf3424a04c11d99, pseudonym=EB80E81424E3C3A3FCB5801D65B57 3419C2D9C68, serialNumber=5011B37A3DD5E32019F501F10E8

PATEL 78D2F118732491B5F40BDC9923237D954365B, cn=SUNIL KUMAR PATEL Date: 2021.08.09 18:12:44 +05'30'