Madhya Pradesh High Court
Bharat Singh Yadav vs The State Of Madhya Pradesh on 27 February, 2021
Author: Anand Pathak
1 W.A. No.31/2021
HIGH COURT OF MADHYA PRADESH BENCH AT
GWALIOR
DIVISION BENCH
(Sheel Nagu & Anand Pathak, J.J.)
Writ Appeal No.31/2021
Bharat Singh Yadav
Vs.
State of Madhya Pradesh and others
Shri S.K. Sharma, learned counsel for the appellant.
Shri Ankur Modi, learned Additional Advocate General for
the respondents No.1&2/State.
Shri Aok Kumar Sharma, learned counsel for the respondent
No.3.
JUDGMENT
(Pronounced on 27th day of February, 2021)
Per Justice Anand Pathak, J.
The instant appeal under Section 2 of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005
has been preferred by the appellant against the order dated
06.01.2021 passed in Writ Petition No.20116/2020, whereby petition
preferred by the petitioner has been dismissed.
2. Precisely stated facts of the case are that the appellant /
petitioner was working as Panchayat Secretary at the relevant point
of time at Gram Panchayat Takpraroriya, District Guna and by order
dated 08.12.2020 passed by the Director, Panchayat Raj
Sanchalnalay, Bhopal (herein respondent No.2), appellant / petitioner
has been transferred from Gram Panchayat Takpraroriya District
Guna to District Rajgarh and being crestfallen by the same, petitioner
filed a petition bearing Writ Petition No.20116/2020 before this court
on the ground that the impugned order has been passed in colourable
exercise of power and same is arbitrary and illegal.
3. The learned writ court vide impugned order dated 06.01.2021
rejected the contentions so advanced by the petitioner and dismissed
the petition accordingly.
4. It is submitted by the learned counsel for the appellant that
after enactment of Madhya Pradesh Panchayat Service (Gram
Panchayat Secretary Recruitment and Condition of Service) Rules of
2011, under Rule 6(7), it has been categorically stipulated that Gram
Panchayat secretary may be transferred on administrative ground or
on the basis of his application within the districts in accordance with
transfer policy issued by the Commissioner Panchayat Raj. Since
cadre of Gram Panchayat secretary is district-wise and seniority is
maintained accordingly, therefore, transfer of present appellant from
District Guna to District Rajgarh is contrary to the said statutory
rules, therefore, transfer order is illegal.
5. On 18.01.2021, this court asked the Additional Advocate
General to seek instructions in respect of grounds of violation of
Rule 6(7) of Rules, 2011 and after seeking instructions, learned
Additional Advocate General referred the Rules of 2011 as well as
circular dated 25.06.2019 issued by the Commissioner Panchayat Raj
Directorate. According to him, said circular dated 25.06.2019
stipulates that transfer of Panchayat Secretary can be given effect
from one district to another district after ratification of departmental
minister concerned. Therefore, as per said policy, appellant can be
transferred from one district to another district, therefore, he prayed
for dismissal of this appeal.
6. Heard learned counsel for the parties and perused the
documents appended thereto.
7. It is the case of appellant that as per Rule 6(7) of Rules, 2011,
appellant cannot be transferred out of district. Rules 6(7) and 8 of
Rules 2011 is reproduced for ready reference:-
"6. Other service conditions.-
(1) to (6) ...............................
(7) The Gram Panchayat Secretary may be
transferred on administrative ground or on the
basis of his application within the district in
accordance with the transfer policy issued by the
Commissioner Panchayat Raj. The Gram
Panchayat Secretary may be transferred, if
necessary, after proper enquiry of the complaints
on the recommendation of the chief Executive
Officer, Janpad Panchayat.
(8) The Chief Executive Officer, Zila Panchayat
shall publish the seniority list of Gram Panchayat
Secretary working in the district as on 1st of April
every year. The consolidated seniority list order
shall be issued separately."
8. After perusal of sub-rules 7 and 8 of Rule 6 reveals that
Panchayat Secretary is a district level cadre and appointing authority
as per Section 3(b) with respect to Gram Panchayat Secretary is
Chief Executive Officer, Zila Panchayat and definition of Gram
Panchayat Secretary as contained in Section 3(d) stipulates such
person appointed by the Chief Executive Officer, Zila Panchayat.
This legal position is further reflected in Rule 5 (method of
absorption and selection), therefore, appointing authority of
Panchayat Secretary is Chief Executive Officer of Zila Panchayat and
seniority list is maintained within district. Therefore, statutory
mandate requires transfer on administrative grounds or on the basis
of his application within district and not beyond that.
9. So far as circular dated 25.06.2019 is concerned, even said
circular contemplates decision to be taken by district Collector and
transfer order is to be issued under the signature of CEO Zila
Panchayat but the said circular dated 25.06.2019 is based upon
transfer policy dated 04.06.2019 for year 2019-20 and same was
clarificatory in nature for the purpose of transfers of Gram Panchayat
Secretary. Later on, vide circular dated 16.09.2019 it has been further
clarified by the Commissioner Panchayat Raj Sanchalnalay that
during ban period, employees of district level cadre shall be
transferred within districts by the order of the district Collector after
taking permission of incharge minister and this circular was also
issued in respect of service condition of Gram Panchayat Secretary.
10. In other words, Directorate realized the import and impact of
provisions as contained in Rules of 2011. Once statutory provisions
indicate establishment of maintenance of district level cadre of Gram
Panchayat Secretary and their transfer within the districts by
appointing authority then result appears to be obvious that present
appellant who has been transferred to District Guna to District
Rajgarh suffers from illegality.
11. In the considered opinion of this court, Rules of 2011 shall
prevail in respect of service conditions of Gram Panchayat Secretary
especially regarding transfer, instead of any executive instruction or
circular, if any. Since said rules contemplate transfer of Gram
Panchayat Secretary within the districts and establishment of districts
level cadre / seniority list, therefore, case of the appellant deserves
interference. Resultantly, appeal stands allowed and order dated
06.01.2021 passed by the learned Writ Court as well as impugned
transfer order dated 08.12.2020 are hereby set aside.
12. Appellant was granted interim relief by this court vide order
dated 29.01.2021 and now, by way of final order, impugned transfer
order dated 08.12.2020 also stands set aside so far as it relates to
appellant and he shall be allowed to continue at his present place of
posting, however, respondents are always at liberty to transfer the
appellant as per law within district, if they desire so.
13. Appeal stands allowed and disposed of in above terms.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Rashid
Digitally signed by RASHID KHAN
RASHID
DN: c=IN, o=HIGH COURT Of M P
BENCH GWALIOR,
postalCode=474011, st=Madhya
Pradesh,
2.5.4.20=23377d7d214c811801fc322b
KHAN
576ca4ed1954237f6324416af3985b5e
9940ed42,
serialNumber=111cc474a72b078dc9a
89f3cb13bb668fd8e0e91beda3cb721
bbd836d768b09c, cn=RASHID KHAN
Date: 2021.03.01 18:27:04 +05'30'
