Madhya Pradesh High Court
Krishna Nagwanshi vs The State Of Madhya Pradesh on 26 October, 2021
Author: Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.869/2021
Vijay Pawar
-Versus-
The State of M.P. and Ors.
W.A. No.873/2021
Krishna Nagwanshi
-Versus-
The State of M.P. and Ors.
--
Shri Mukesh Kumar Agrawal, Advocate for the appellants.
Shri A.P. Singh, Deputy Advocate General for the respondents/State.
_______________________________________________________
CORAM :
Hon'ble Shri Justice Ravi Malimath, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
[Hearing convened through virtual/physical modes]
JUDGMENT
(Jabalpur, dtd.26.10.2021)
Per : Vijay Kumar Shukla, J.-
The learned counsel for the appellants submits that in
both the writ appeals a common question of law is involved.
Therefore, the same were heard analogously and are being disposed
of by a common order.
2. The instant intra-court appeals have been filed under
Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyaypeeth to Appeal) Adhiniyam, 2005, being aggrieved by the
orders passed by the learned Single Judge in WP-17551-2021, dated
13-9-2021 and WP-17530-2021, dated 15-9-2021 respectively,
whereby the writ petitions preferred by the petitioners/appellants
[hereinafter referred to as "the petitioners"] challenging the transfer
orders have been dismissed.
3. For the sake of clarity and convenience the facts
adumbrated in WA-869-2021 [Vijay Pawar vs. State of M.P. and
others] are noted herein.
4. The petitioner has challenged the legality and propriety
of the order of transfer dated 31-8-2021, by which the petitioner has
been transferred from Gram Panchayat, Bijorigumai, Janpad
Panchayat, Parasiya to Gram Panchayat, Jhamta, Janpad Panchayat,
Bicchua. The learned counsel for the petitioner submits that the
transfer order is contrary to the provisions of Sub-rule (7) of Rule 6
of the M.P. Panchayat Secretaruy (Gram Panchayat Secretary
Recruitment & Conditions of Service) Rules, 2011 [for short, "Rules
2011"] and also the provisions of Section 47 of the M.P. Panchayat
Raj Avam Gram Swaraj Adhiniyam 1993 [for brevity, "the
Adhiniyam 1993"]. He further asserts that without there being
approval of the General Administrative Committee, duly constituted
under Section 46 of the Adhiniyam 1993, the impugned order of
transfer has been passed. Further, the transfer order has been issued
in contravention of the Sub-rule (7) of Rule 6 of the Rules 2011, as
no enquiry has been conducted on the complaint made by the Chief
Executive Officer of the Janpad Panchayat concerned.
5. According to the petitioner, as per the Policy of the
Commissioner, Panchayat Raj, dated 26-03-2018, Chief Executive
Officer, Jila Panchayat, can issue an order of transfer of a Panchayat
Secretary within the same Janpad Panchayat, normally after
completion of tenure of at least 5 years. Besides, out of the Janpad
Panchayat, i.e. from one Janpad Panchayat to another, the Collector
is the only competent to issue an order of transfer and not the Chief
Executive Officer, Jila Panchayat and, therefore, the impugned order
of transfer lacks jurisdiction.
6. The learned counsel for the State has produced a copy of
the Transfer Policy framed by the State Government and also cited
certain judgments, to show that there is no illegality in the impugned
order of transfer. He assiduously urged that the provisions of
sections 46 and 47 of the Adhiniyam 1993, do not apply to Gram
Panchayats. It is further submitted that there is no clause in the
Transfer Policy, that approval of the General Administrative
Committee is mandatory for transferring a Gram Panchayat
Secretary. The Transfer Policy has been issued by the
Commissioner, Panchayat Raj, in exercise of vested power under
Sub-rule (7) of Rule 6 of the Rules 2011, which provides ample
power to transfer a Gram Panchayat Secretary on administrative
ground within the Janpad Panchayat. The Sub-rule (7) of Rule 6
being relevant for the present purpose, is extracted hereunder :
"(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."
7. On a studied scrutiny of the aforesaid Rule, it is vivid
that the first part of the Rule empowers the Competent Authority to
transfer the Gram Panchayat Secretary on administrative ground.
The second part of the Rule also enables the Competent Authority to
transfer the Gram Panchayat Secretary on an application made in
that behalf, in accordance with the transfer policy. The third part of
the Rule postulates that a 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 learned counsel for the appellant contended, that
since in the present case the transfer is outside the Janpad
Panchayat, therefore, the ratio of the judgment of a Division Bench
of this Court rendered in the case of Gram Panchayat Hardi vs.
Anil Dixit and others, 2016 (1) MPLJ 29 is not attracted.
9. Opposing the said contention, the learned counsel for
the respondents/State submitted that the petitioner is raising the
same issue which has already been rejected by a Single Bench of
this Court in the case of Rakesh Kumar Urmaliya vs. State of
M.P. and others, (WP-15306-2021, dated 18-8-2021), wherein it
has been held that a Secretary of Gram Panchayat can be transferred
outside the Janpad Panchayat. So far as the issue raised by the
appellant in respect of proposal from General Administrative
Committee is concerned, the said ground has already been rejected
in the case of Rakesh Kumar Urmaliya (supra). In the said case,
the Co-ordinate Bench has also considered the scope of Sub-rule (7)
of Rule 6 of the Rules 2011 and dismissed the writ petition.
10. In Rakesh Kumar Urmaliya (supra) the learned Single
Judge has observed that the State Government, in exercise of power
conferred under Section 46 of the Adhiniyam 1993, has framed
Gram Panchayat (Terms of Office of Members of Standing
Committee and procedure for the Conduct of Business) Rules, 1994.
As per Rule 3 of the said Rules, General Administrative Committee
is one of the three Standing Committees of every Gram Panchayat
and it also looks into the matter pertaining to establishment and
service of Gram Panchayat. As per Rule 11 of the Business Rules
1994, the Standing Committee shall primarily take decision only in
regard to matter entrusted to it.
11. In the case in hand, the appellant has failed to show that
any power is assigned to Standing Committee of the Gram
Panchayat to give approval of transfer order of the Panchayat
Secretary. In view of the aforesaid, the submission advanced on
behalf of the appellant is not worth acceptance. Therefore, the issue
is answered in negative, as the appellant has failed to show that
approval of the General Administrative Committee is required in the
case of transfer of the appellant.
12. The appellant has already remained at the present place
of posting for more than normal tenure and the impugned order of
transfer has been passed on administrative exigencies. Neither any
fundamental right nor provisions of the Rules 2011, have been
violated and, therefore, we do not deem it fit to interfere in the
transfer of the appellant. The learned Single Judge has rightly held
that the appellant has failed to show that the impugned order of
transfer has been passed in violation of any statutory provisions or
replete with malafide.
13. In view of the aforesaid factual backdrop, we do not
perceive any illegality in the order passed by the learned Single
Judge dismissing the writ petition, warranting any interference in the
present intra-court appeals. Accordingly, both the writ appeals
deserve to be and are hereby dismissed. There shall be no order
as to costs.
(Ravi Malimath) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.10.30 16:59:22 +05'30'
