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Madhya Pradesh High Court · body

2009 DIGILAW 170 (MP)

P. K. Jain v. State of M. P.

2009-02-05

RAJENDRA MENON

body2009
ORDER 1. Challenging the order dated 11.8.2008 Annexure P-5 transferring the petitioner and posting him as an Accounts Officer in Zila Panchayat, Datia, petitioner has filed petition. Petitioner claims to be an employee of the Finance Department having joined as an Assistant Internal Audit Officer on 1.12.1978 at Gwalior. He was posted as Assistant Director w.e.f. 10th March, 1991 and was posted in various capacities as Assistant Director, Treasury Officer, Accounts Officer, etc. It is stated that he was posted in various places like Bhind, Bhopal, Tikamgarh, Damoh, Shajapur, etc. He complied with all these orders and finally he was sent with his consent on deputation to the District Rural Development Authority Service at Damoh. However, he was repatriated back and was posted as Treasury Officer, Chhatarpur w.e.f. 28.7.2005. However, the State Government vide order dated 20.9.2006 transferred him on the post of Accounts Officer in Pradhan Mantri Gramin Sadak Vikas Authority, Chhatarpur. This was on deputation and was done vide order Annexure P-1. Petitioner challenged this order in Writ Petition No. 1 3935/2006(s) on the ground that his transfer on deputation without his consent is illegal. Considering the same vide Annexure P-2 dated 17.10.2006 this Court stayed the order Annexure P.1. While the said position was existing, it is case of the petitioner that another order Annexure P-3 was passed on 10.7.2007 posting the petitioner as Accounts Officer in the Human Rights Commission, Bhopal, this was also on deputation without his consent. Petitioner filed another writ petition being Writ Petition No.9718/2007(s), notices were issued and the matter was pending, when the impugned order Annexure P-5 was passed on 11.8.2008 transferring the petitioner on the post of Accounts Officer, Zila Panchayat, Datia. It is pointed out that on 1.8.2008 vide Annexure P-4 Writ Petition No.9718/2007(s) was allowed and the posting of the Human Rights Commissioner, Bhopal was quashed. It is the case of the petitioner that his posting now by the impugned order Annexure P-5 on 11.8.2008, on the post of Accounts Officer, Zila Panchayat is on deputation and same cannot be made without his consent. 2. Respondents have filed a return and from the return filed by the State Government, it is seen that it is their case that petitioner is holding a cadre post in the Finance Department and such persons are entitled to be posted in Zila Panchayat as it is in the same cadre. 2. Respondents have filed a return and from the return filed by the State Government, it is seen that it is their case that petitioner is holding a cadre post in the Finance Department and such persons are entitled to be posted in Zila Panchayat as it is in the same cadre. By filing a Notification Annexure R-1 dated 29.1.2008 showing amendments to the M.P. Accounts Services (Recruitment and Conditions) Rules, 1965 (hereinafter referred to as "Rules of 1965") State Government has tried to emphasize that the post in the cadre of Assistant Director, junior pay scale, Rs.8000-275-13500/ has been crated and all the posts appearing against the aforesaid cadre in the notification constitute a common cadre and at Item No.45 post of Accounts Officer, Zila Panchayat is indicated. It is tried to be emphasized by the State Government that all the posts indicated in the notification under the heading "Assistant Director" carrying the pay-scale of Rs.8000-275-13500/- constitute a common cadre post and posting of the petitioner to the Zila Panchayat being in the same cadre it is stated that there is no merit in the contention of the petitioner. 3. Respondent No.3 has filed a separate return and has supported the contentions advanced by the State Government but by filing I.A. No.11522/ 08 has pointed out certain suppression of facts said to be made by the petitioner and has prayed for dismissal of the petition on the aforesaid grounds. By filing three applications along with I.A. No.11522/08 submitted by the petitioner requesting to transfer him in or around Gwalior, it is pointed out by Shri Praveen Verma, learned counsel for respondent No.3 that petitioner has suppressed the material facts and therefore, petition is liable to be dismissed. He further points out that averments made by the petitioner in para 5.4, 5.5 and 5.6 amounts to misleading statements and therefore, in the light of the law laid down by Supreme Court in the case of General Manager, Haryana Roadways v. Jai Bhagwan and another [ (2008)4 SCC 127 ], the petition is liable to be dismissed. 4. He further points out that averments made by the petitioner in para 5.4, 5.5 and 5.6 amounts to misleading statements and therefore, in the light of the law laid down by Supreme Court in the case of General Manager, Haryana Roadways v. Jai Bhagwan and another [ (2008)4 SCC 127 ], the petition is liable to be dismissed. 4. Shri Udyan Tiwari, learned counsel for the petitioner by placing reliance on the judgment of Supreme Court in the case of Umapati Choudhry v. State of Bihar and another [ (1999)4 SCC 659 ], submitted that the petitioner's transfer to the Zila Panchayat is on deputation and also invites attention of this Court to the M.P. Panchayat Services (Recruitment and General Conditions of Service) Rules, 1999 (hereinafter referred to as "Rule of 1999") to point out that under the said rule method of recruitment is indicated in rule 7 and the number of persons to be recruited and the posts created under rule 7(2) are indicated in Schedule 1 and 2, referring to Schedule 2 and the posts created in the Zila Panchayat, Shri Udyan Tiwari points out that the cadre of Accounts Officer in Zila Panchayat is to be filled up 100% of promotion of members of Panchayat services appointed under this Rules and till the cadre in this service is developed officers from the finance department or the Accountant General are posted on deputation as Accounts Officer in Zila Panchayat as is evident from the provision contemplated in the column 5 to the said Schedule. Accordingly, on the aforesaid ground Shri Tiwari seeks for interference into the matter. 5. While hearing the matter and finding the question involved being as to whether petitioner's posting to Zila Panchayat is on deputation or not, respondent's were directed to file an affidavit and the Joint Director, Treasury and Accounts, Jabalpur one Shri N.P. Singh has filed an affidavit and has only pointed out that petitioner's seniority is maintained at Finance Department and his posting at Datia in Zila Panchayat does not adversely affect his seniority or service conditions. However, the affidavit of the Joint Director does not specifically say as to whether posting of the petitioner in Zila Panchayat is on deputation or not. It only clarifies the position with regard to maintaining seniority and transfer in the same cadre. 6. However, the affidavit of the Joint Director does not specifically say as to whether posting of the petitioner in Zila Panchayat is on deputation or not. It only clarifies the position with regard to maintaining seniority and transfer in the same cadre. 6. Having heard the learned counsel for the parties and on considering the facts that have come on record, it is seen that the only question involved is as to whether posting of the petitioner as Accounts Officer in Zila Panchayat amounts to transfer on deputation and whether the same done without consent of the petitioner is sustainable or not. 7. It is clear that M.P. Accounts Services (Recruitment and Conditions of Services) Rules, 1965 (hereinafter referred to as "the Rules of 1965") creates a cadre consisting of various officers indicated in the Schedule 1 of the said cadre and the post of Accounts Officer also finds place in the said schedule. However, the question is as to whether the employees who hold the cadre post under this rule can be posted in any other establishment, authority of statutory organization, and whether such posting amounts to transfer on deputation of the cadre employees. 8. As far as the establishment of the Panchayats are concerned they are not department of the Government. Under the M.P. Panchayat Raj Adhiniyam, 1993 a Panchayat is defined as "Gram Panchayat, Janpad Panchayat and a Zila Panchayat". A Gram Panchayat, Zila Panchayat or Janpad Panchayat is created or established under section 10 of the M.P. Panchayat Raj Adhiniyam and each Panchayat created, be it a Gram Panchayat, Zila Panchayat or Janpad Panchayat is a separate legal entity. As per the provision of section 11 a Panchayat created under the Adhiniyam, 1993 is an independent legal entity different from the Government department. Under the Adhiniyam of 1993 section 70 provides for appointment of such officers and servants in the Panchayat as are necessary for discharging the functions of the Panchayat. The power in this regard is given to the Panchayat to prescribe the qualification, method of recruitment, etc. and the State Government has framed separate recruitment rules for different categories of employees and under the Rules of 1999 a provision is made for appointment of Accounts Officers. Similarly section 71 of the Adhiniyam of 1993 empowers the State Government to depute to the service of Panchayat such of its servant as it may consider necessary. and the State Government has framed separate recruitment rules for different categories of employees and under the Rules of 1999 a provision is made for appointment of Accounts Officers. Similarly section 71 of the Adhiniyam of 1993 empowers the State Government to depute to the service of Panchayat such of its servant as it may consider necessary. The (foresaid statutory provision clearly indicates that the functioning of the Panchayat is totally independent and it is based on the Rules and Regulations framed in this regard by the State Government under the powers vested in the State Government under section 70. That being so it has to be held that a Panchayat created under the Adhiniyam of 1993 is separate from a department of the Government. It has its own existence and functioning of the Panchayat is governed by the Adhiniyam of 1993. By virtue of the powers vested in the State Government under section 70(2) of M.P. Panchayat Raj Adhiniyam, 1993 the State Government has formulated the M.P. Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999. According to section 2 of this Rule, it applies to all posts in the Zila Panchayat and Janpad Panchayat. Under the aforesaid Rules method of recruitment to the "Panchayat Services" as defined in section 2(e) is provided under rule 7 and under sub-rule (3) of rule 7 it is contemplated that subject to the provision of these rules, the method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies in the Panchayat service as may be required during any particular period and the number of persons to be recruited by each method shall be determined on each occasion by appointing authority in consolidation with the General Administrative Department. The services created under these Rules of 1999 and Schedule 2 therein indicates that Accounts Officer in the establishment of Zila Panchayat are appointed by promotion of members to the service and as per column 5 to Schedule 2, under the heading "by transfer of persons from other services", it is indicated that till the cadre develops, officer's from the finance and accounts services or the Accountant General shall be appointed on deputation. It is therefore clear from this rule that till the cadre of Accounts Officer in the Panchayat services are developed, posting and appointment of Accounts Officer in the Panchayat service shall be made by deputation from the posts indicated under column 9. Even though respondents have tried to emphasize that petitioner is holding a cadre post under the Rules of 1965 and therefore, his posting as Accounts Officer which is a cadre under the said Rules, the same cannot be accepted for the simple reason that even if a cadre post, petitioner being posted not in another department or establishment of the State Government but is being posted to a different legal entity having a statutory existence different from a establishment or department of the State Government. Posting of the petitioner to Zila Panchayat amounts to changing his employer that is posting the petitioner with another employer and therefore, the same has to .be with his consent. The aforesaid position is clear on consideration of the method of recruitment to the post of Accounts Officer in Zila Panchayat as indicated hereinabove, i.e., as per Schedule 2 to the Rules of 1999. 10. Even if petitioner is holding a cadre post under the Rules of 1965 but when he is proposed to be posted in the establishment of Zila Panchayat the employer temporarily under whom the petitioner is posted becomes the Zila Panchayat, and a Panchayat establish bed under the Adhiniyam of 1993 being an independent legal entity, the original employer of the petitioner i.e. State Government changes, while he remains posted in the establishment of Panchayat which is a separate and independent legal entity, the same amounts to change of employer of the petitioner and therefore posting of the petitioner in the Panchayat can be only after obtaining his consent. In this regard attention may be drawn to the principles laid down by the Supreme Court in the case of Jawaharlal Nehru University v. Dr. K.S. Jawatkar [1989 Supp.(1) SCC 679], wherein transfer of employees working in the Jawahar Lal Nehru University after creation of Manipur University is taken note of an it was held by the Supreme Court that transfer of employee of the Jawahar Lal Nehru University who was working a study centre under the Jawahar Lal Nehru University cannot be automatically transferred to the Manipur University after the centre is transferred to the said Manipur University. It was held that the position in law is very clear that no employee can be trans 'erred without his consent from one employer to another. 11. This judgment was again considered by the Supreme Court in the case of Prasar Bharti v. Amarjeet Singh [(2007)9 SCC 439], and in paras 13, 14 and 15 the principles pertaining to transfer on deputation is laid down in the following manner: "13. There exists a distinction between "transfer" and "deputation". "Deputation" connotes service outside the cadre or outside the parent department in which an employee is serving. "Transfer, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications. 14. There cannot be any doubt whatsoever that ordinarily' no employee can be transferred without his consent from one employer to another. {See Jawaharlal Nehru University v. Dr. K.S. Jawatkar '(supra)}. But the said principle has no application in the instant case. 15. A transfer of an employee may be governed by the provisions of a statute or the terms and conditions of a contract of service." 12. Respondents may have a right to post the petitioner in the Zila Panchayat as he is holding a cadre post in the State Government which permits posting of such an employee to the Zila Panchayat, but such posting would amount to transfer of the petitioner on deputation to the Panchayat as per the Rules of 1999, and therefore, the same can be done only by seeking his consent and following the rules and procedure contemplated for posting of an employee on deputation. The principles laid down by a Division Bench of this Court in the case Devesh Kumar Pathak v. The State of M.P. [ 2007(4) MPHT 155 ], will squarely apply in the facts and circumstances of the present case also, as the establishment of Lokayukt is an independent establishment created by the M.P. Lokayukt and Up Lokayukt Act, 1981, so is the establishment of Zila Panchayat, Gram Panchayat and Janpad Panchayat which are created by the Panchayat Raj Adhiniyam of 1993. Posting of the petitioner, therefore, to the establishment of the Zila Panchayat would amount to his transfer on deputation and the same cannot be done without consent of the petitioner in view of the reasons indicated hereinabove. 13. Posting of the petitioner, therefore, to the establishment of the Zila Panchayat would amount to his transfer on deputation and the same cannot be done without consent of the petitioner in view of the reasons indicated hereinabove. 13. In view of the aforesaid, it has to be held that posting of the petitioner in the establishment of Zila Panchayat is on deputation and the same without his consent is unsustainable. 14. Having held so, it is thought appropriate to consider the objections raised by Shri Praveen Verma with regard to suppression of facts. It was emphasized by Shri Praveen Verma, that petitioner has filed three applications seeking his posting in or around Gwalior and therefore, challenging the transfer when he is posted nearer to Gwalior now by suppressing these facts warrants dismissal of the petition. A perusal of documents filed along with I.A. No.11522/08 indicates that expressing certain difficulties petitioner has sought posting in or around Gwalior in the State Finance Services. In these applications; no request was made by the petitioner for his posting in any establishment like Pancha) at, Municipal Corporation, etc. but petitioner only seeks for his posting in the State Finance Services in or around Gwalior. These applications cannot be constrained to mean that petitioner has given his consent for his posting in Zila Panchayat or in any other foreign service. It is the considered view of this Court that these applications do not amount to suppressing material facts. That apart, averments made by the petitioner in para 5.4, 5.5 and 5.6 do not amount to any statement being made which amounts to misleading this Court. In fact, a complete reading of the petition indicates that petitioner has mentioned various facts in para 5.3 to 5.9 and if the entire petition is read, it can be seen that petitioner has narrated the facts in a proper sequence and it cannot be said that averments made by the petitioner amounts to making any misleading statement. Accordingly, objection raised by respondent No.3 in this regard is found to be unsustainable. 15. In view of the findings recorded hereinabove this petition is allowed. The impugned order contained in Annexure P-5 is quashed. 16. Petition stands allowed and disposed of accordingly without any order so as to cost.