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Madhya Pradesh High Court · body

2012 DIGILAW 1025 (MP)

Awadhesh Kumar Sharma v. State of M. P.

2012-10-08

SUJOY PAUL

body2012
JUDGMENT : This order will govern the disposal of all aforesaid writ petitions. Since all the writ petitions are similar in nature, with the consent of parties matters were heard analogously and are decided by this common order. Brief facts necessary for adjudication of the matters are as under:- The facts are taken from Writ Petition No.6592/2012. 1. The petitioner, a Panchayat Secretary working in Gram Panchayat Pipruakala, Tanshil Bhander, District Datia is transferred by Chief Executive Officer (CEO), Jila Panchayat by order dated 15.7.2012 (Annexure P-l). This order-of transfer as well as the transfer policy dated 31.3.2012 (Annexure P-2) is called in question in this petition. 2. It is relevant to mention here that in the present batch of petitions, in three cases - Writ Petitions No.6615/2012, 6616/2012 and 6592/2012 the aforesaid transfer policy is called in question whereas in other cases the petitioners have challenged only orders of transfer passed by the Chief Executive Officer. 3. Learned counsel for the petitioners submit that by invoking section 95 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity 'Adhiniyam') the statutory rules are framed which are known as "Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011 (for brevity, 2011 Rules'). By placing reliance on rule 6(7) of 201 1 Rules it is stated that as per statutory provision, the transfer of Panchayat Secretary on administrative ground can be made within the district in accordance with the transfer policy issued by the Commissioner, Panchayat Raj. To elaborate, the contention of petitioners is that the rule in no uncertain terms makes it clear that the transfer can be made only as per the transfer policy issued by the Commissioner, Panchayat Raj. By placing reliance on the transfer policy (Annexure P-2) dated 31.3.2012, it is submitted that this transfer policy is issued by Panchayat and Rural Development Department and not by the Commissioner, Panchayat Raj and, therefore, this policy cannot be invoked for the purpose of transfer of the Panchayat Secretaries by the Chief Executive Officer. Learned counsel for the petitioners have attacked the transfer order and the policy aforesaid on following counts :- (i) Rule 6(7) of 2011 Rules provides a methodology by which petitioner could have been transferred. Learned counsel for the petitioners have attacked the transfer order and the policy aforesaid on following counts :- (i) Rule 6(7) of 2011 Rules provides a methodology by which petitioner could have been transferred. Once a procedure is prescribed law, it has to be followed and all other methods are forbidden other words, it is stated that something is prescribed to be done in law in a particular manner, it has to be done in the same manner or not at all. (ii) The policy (Annexure P-2) runs contrary to the statutory rules and, therefore, it is liable to be set aside, (iii) The policy is issued by Principal Secretary, which is without authority, jurisdiction and competence, (iv) The impugned policy cannot be treated to be issued by the State Government/Governor. 4. S/Shri S.K.Sharma, Prashant Sharma, Pratip Visoriya, R.B.S.Tomar, Vivek Jain and Arun Dudawat, learned counsel for the petitioners submit that there is no express disclosure in policy, Annexure P-2 that it is issued under the executive power of the State under Article 154/166 of the Constitution and, therefore, by placing reliance on AIR 1961 SC1762 (Major E.G. Barsay v. State of Bombay) it is submitted that this policy, by no stretch of imagination, can be said to be a policy issued under executive power of the State Government. It is further submitted that the Principal Secretary, Panchayat and Rural Development Department, has no authority to issue the policy dated 31.3.2012 (Annexure P-2). Learned counsel for the petitioners relied on (2001) 4 SCC 9 (Dhanajaya Reddy vs. State of Karnataka) to submit that when a thing needs to be done in a particular manner has to be done in that manner or not at all. By placing reliance on 2002 (2) MPHT 77 (Bihari lal Jaiswal and others vs. State of MP and others), it is stated that this matter is squarely covered by the said judgment. By placing heavy reliance on (2011) 5 SCC 435 (Joint Action Committee of Air Lin Pilots' Association of India (ALPAI) and others vs. Director General of Civil Aviation and others) it is stated that only the competent authority can pass a particular order and even superior authority cannot pass a particular order. By placing heavy reliance on (2011) 5 SCC 435 (Joint Action Committee of Air Lin Pilots' Association of India (ALPAI) and others vs. Director General of Civil Aviation and others) it is stated that only the competent authority can pass a particular order and even superior authority cannot pass a particular order. It is submitted that rule 6(7) aforesaid gives power to the Commissioner, Panchayat Raj to frame the transfer policy and, therefore, even Principal Secretary who may be superior in rank cannot be permitted to frame such policy. By placing reliance on (2011) 10 SCC 714 (J&K Housing Board and another vs. Kunwar Sanjay Krishan Kaul and others) it is stated that the word "notified" has definite connotation in law and in absence of the notification no policy can be permitted to sustain judicial scrutiny. 5. Per Contra, Shri R.D.Jain, learned Advocate General assisted by Shri M.P.S.Raghuvanshi, Additional Advocate General supported the transfer order and the policy. In nutshell, the contentions of the State are as under:- (i) If an order is passed by the State Government/Governor and even if it is not mentioned that it is issued by/under the name of the Governor, this alone will not mean that the order is invalid. (ii) Under Article 166 of the Constitution, the Governor can authorise the concerned Minister under the business rules to act or exercii its power as defined. In other words, it is stated that if in the business rules the powe; are given to the concerned Minister to exercise a power, such power shall be treated to be a power exercised by the State/Governor, (iii) Under section 95 of the Adhiniyam the powers are vested with the Government to frame rules. Reliance is also placed on section 52(1)(xii) of the Adhiniyam to submit that the powers are there to issue executive instructions like Annexure P-2. (iv) There is no conflict between 2011 Rules and the policy (Annexure P-2). Learned Advocate General submits that by issuance of Annexure P-2 no provision of the rules or Adhiniyam is violated, (v) Since, Chief Executive Officer, Jila Panchayat is the appointing authority as per Schedule I, Rule 4 of 2011 Rules, he can always transfer the petitioner. (iv) There is no conflict between 2011 Rules and the policy (Annexure P-2). Learned Advocate General submits that by issuance of Annexure P-2 no provision of the rules or Adhiniyam is violated, (v) Since, Chief Executive Officer, Jila Panchayat is the appointing authority as per Schedule I, Rule 4 of 2011 Rules, he can always transfer the petitioner. (vi) The original power vested with the Government to frame rules and instructions under the Adhiniyam can always be exercised despite the fact that another mode as enabling provision is mentioned in 2011 Rules. It is submitted that the original authority/State is not denuded with its power to frame rules or policy as per the Adhiniyam and rule 6(7) does not preclude the Government or its competent authority to frame such a policy. 6. Shri Sunil Jain, learned counsel appeared for the Jila Panchayat in certain matters and relied on (2012) 6 SCC 502 (Brij Mohan Lal vs. Union of India and others) and 1980 (Supp) SCC 559 (Col. A.S. Sangwan vs. Union of India and others) to submit that the policy is in consonance with law and there is no infirmity or illegality in transfer orders. He submits that the transfer order can be called in question on limited grounds and no such grounds are available in the petitions. He prayed for dismissal of the writ petitions. 7. I have heard learned counsel for the parties and perused the record. 8. Before dealing with the rival contentions of the parties, it is profitable to refer certain relevant provisions of the Adhiniyam. Relevant portion of section 95 of the Adhiniyam reads as under:- "95. Power to make rules. (1) The State Government may make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters which under any provision of this Act, are required to be prescribed or to be provided for by rules. (3) All rules shall be subject to the condition of previous publication. (4) All rules shall be laid on the table of Legislative Assembly." Section 52 of the Adhiniyam prescribes functions of Jila Panchayat. Section 52(1) (xii) reads as under:- "52. (3) All rules shall be subject to the condition of previous publication. (4) All rules shall be laid on the table of Legislative Assembly." Section 52 of the Adhiniyam prescribes functions of Jila Panchayat. Section 52(1) (xii) reads as under:- "52. Functions of Zila Panchayt- (1) subject to the provisions of this Act and rules made thereunder and subject to policy, directions, instructions, general or special orders as may be issued by the State Government from time to time, it shall be the duty of Zila Panchayat to- (1) to (xi) xxx xxx xxx (xii) administer and control the employees appointed and posted in Panchayats including staff transferred by the State Government to the Panchayat; Explanation.- The administration and control of the staff transferred by the State Governments shall include the exercise of such power as may be defined by the State Government from time to time by special or general order." Section 70 of the Adhiniyam reads as under:- "70. Other officers and servants of Panchayat.- (1) Subject to the provisions of Section 69 every panchayat may with previous approval of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications, method of recruitment, salaries, leave, allowance and other conditions of service including disciplinary matters of such officer and servants shall be such as may be prescribed." Rule 6(7) of 2011 Rules reads as under:- "Rule 6(7)- The Gram Panchayat Secretary may be transferred on administrative ground or 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." 9. The bone of contention of learned counsel for the petitioners is that the rule makes it obligatory for the Commissioner, Panchayat Raj to frame a transfer policy for the purpose of administrative transfer of Panchayat Secretaries. In absence of any such policy being framed, no other policy can serve the purpose. No other authority than the Commissioner, Panchayat Raj can frame the policy. The basic contention of the other side is that there exists power to frame rules and Government in its executive power can issue executive instructions as well. In absence of any such policy being framed, no other policy can serve the purpose. No other authority than the Commissioner, Panchayat Raj can frame the policy. The basic contention of the other side is that there exists power to frame rules and Government in its executive power can issue executive instructions as well. In the considered opinion of this Court, section 95 aforesaid gives power to the State Government to frame rules for carrying out the purpose of the Adhiniyam. This is settled in law that the authority, who is competent to frame statutory rules, can always issue executive instructions on the subject. Thus, it cannot be held that State has no authority, jurisdiction and competence to issue executive instructions governing service conditions including transfer of employees. Unless it is shown that those service conditions are contrary to any statutory rules, no interference is warranted. Article 154 of the Constitution makes it clear that executive power of the Stat i1 remains vested in the Governor. This power can be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 166 (2) makes it clear that the orders and other instruments made and executed in the name of Governor may be authenticated in such manner as may be specified in rules to be made by the Governor. Sub-Article (3) makes it clear that rules of business shall be made for the purpose of allocation of works amongst the Ministers. It is made clear that except the power/business in respect of which Governor himself is required to act in his discretion, the other powers can be vested with the concerned Minister by way of business rules. 10. It is relevant to note that in exercise of power under Article 166(2) and (3) of the Constitution, the Governor of Madhya Pradesh has made rules namely "Madhya Pradesh Government Rules of Business". A perusal of this rule shows that the powers are allocated to the Minister Incharge of a particular department by the said rules. The constitutional provision as per Articles 154 and 166 of the Constitution makes it clear that the executive power of the State although vested with the Governor but it can be exercised through the officers subordinate to him in accordance with the provisions of the Constitution. The constitutional provision as per Articles 154 and 166 of the Constitution makes it clear that the executive power of the State although vested with the Governor but it can be exercised through the officers subordinate to him in accordance with the provisions of the Constitution. Article 166 permits preparation of business rules and in accordance with the business rules the powers are vested with the concerned Minister to frame the policy/issue executive instructions. 11. In fact the petitioners have challenged the policy, Annexure P-2 on the singular ground that rule 6(7) of 2011 Rules provides that p,olicy can be issued by the Commissioner, Panchayat Raj only and, therefore, no other authority can issue any policy on the subject. A careful reading of rule 6(7) aforesaid will show that it is an enabling provision. No doubt, said rule gives power to frame transfer policy to the Commissioner but this does not mean that other authorities if otherwise competent are prohibited to issue any policy on the subject. In other words, rule 6(7) being an enabling provision gives power to frame a policy by the Commissioner, Panchayat Raj. If the Adhiniyam gives power to other authorities and to State Government as well to frame policy on the subject, it cannot be said that the powers to frame policy are restricted only to Commissioner, Panchayat Raj This is settled in law that the enabling provision available under the Act cannot be restricted by the rules made thereutider. 2011 Rules are made under section 95 of the Adhiniyam. Section 95 is the source of power by which 2011 Rules are made. Section 95 gives power to the Government to frame rules. This is settled that an authority/Government, who can frame rules, can always issue executive instructions on the subject. Thus, even if by rule 6(7) enabling provision is made to frame policy by a particular officer, that will not preclude the State Government to frame policy on the subject. The original authority cannot be said to be denuded from its power to frame the policy on the subject. The Apex Court in Andhra Pradesh Public Service Commission vs. Baloji Badhavath and others [(2009) 5 SCC1] held as under in para 15 :- "15. The vacancies which were to be filled up by the State pertained to Group Services. The original authority cannot be said to be denuded from its power to frame the policy on the subject. The Apex Court in Andhra Pradesh Public Service Commission vs. Baloji Badhavath and others [(2009) 5 SCC1] held as under in para 15 :- "15. The vacancies which were to be filled up by the State pertained to Group Services. The State indisputably subject to the constitutional limitations having regard to its power contained in the proviso appended to Article 309 of the Constitution of India is entitled to frame rules laying down the mode and manner in which vacancies are to be filled up. If the State has the legislative competence to frame rules, indisputably, it can issue governmental orders in exercise of its power under Article 162 of the Constitution of India." (Emphasis Supplied). (12) Shri Prashant Sharma has placed heavy reliance on the judgment of Major E.G. Barsay (supra) but even in this case it was held that it can be proved that the instructions issued by the Government were in exercise of the power conferred on the Government. This judgment is not an authority that if policy is not issued by showing it to be under the name of the Governor, it cannot be treated to be issued by the State Government/Governor in its executive power. Relevant portion of this judgment reads as under:- "Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in R. (2) of the said Article, there is an irrebuttable presumption that the order of instrument is made or executed by the Governor. Any non-compliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority." Similarly in AIR 1952 SC181 (Dattatraya Moreshar vs. State of Bombay) a five Judges Bench of Supreme Court held that Article 166(1) is directory in nature. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority." Similarly in AIR 1952 SC181 (Dattatraya Moreshar vs. State of Bombay) a five Judges Bench of Supreme Court held that Article 166(1) is directory in nature. If the order is signed by competent officer as per rules framed by Governor under Art. 166 of Constitution, it cannot be held that order is nullity even though it has not been expressed to be made in the name of the Governor. This view is recently followed by Supreme Court in (2011) 12 SCC 333 (Narmada Bachao Andolan vs. State of MP) 13. In AIR 1982 SC 32 (Commissioner of Income-tax, Gujarat III, Ahmedabad v. Ahmedabad Rana Caste Association, Ahmedabad) it is held that the power of the State to frame executive policy/instructions is coextensive with its legislative power. In (1996) 2 SCC 305 (State of M.P. and others vs. Dr. Yashwant Trimbak) the Apex Court held that under Article 166(3) the Governor can allocate the functions by framing rules of business. In AIR 1964 SC 1128 (Godavari Shamrao Purulekar vs. State of Maharashtra) it was held that even the functions and duties which are vested in State Government by a Statute may be allocated to the Ministers by the rules of business framed under Article 166 (3) of the Constitution. The same view is taken by Supreme Court in AIR 1961 SC 221 (State of Bihar v. Rani Sonabati Kumari). 14. Considering the aforesaid in Dr. Yashwant Trimbak (supra) the Apex Court held that except the matter with respect to which the Governor himself is required by or under the Constitution to act in his discretion, a personal satisfaction of the Governor is not required and any function may be allocated to the Minister. In Dr. Yashwant Trimbak's case the Apex Court held that power of the Governor has been duly allocated in favour of the Council of Ministers under Article 166(3) of the Constitution and the said authority has taken a decision to grant sanction for prosecution of the respondent. Thus, the contention was negatived that the sanction order is not passed by "Governor" or "Government". Thus, the contention was negatived that the sanction order is not passed by "Governor" or "Government". Applying the said principle here, this will be clear that once the executive powers of the Governor are delegated by framing business rules, the concerned department is competent to frame a policy; more so, when section 95 of the Adhiniyam gives enabling power to frame rules read with other provisions of the Adhiniyam on the subject. In 1995 Supp (2) SCC 305 (State of U.P. and others vs. Pradhan Sangh Kshetra Samiti and others) the Apex Court held that whether it is a notification issued by the Governor or a general or special order issued by the State Government, constitutionally both are the acts of the Governor. The relevant portion of the judgment reads as under:- ".........We have already pointed out that in view of the provisions of Article 154 and of Article 163 read with Article 166 of the Constitution 'Governor' means the Government of the State and all executive functions which are exercised by the Governor except where he is required under the Constitution to exercise the functions in his discretion, are exercised by him on the aid and advice of the Council of Ministers. Hence, whether it is a notification issued by the Government or a general or special order issued by the State Government, constitutionally both are the acts of the Governor." (Emphasis Supplied) In view of this, it is crystal clear that even executive instruction shall be treated as an act of Governor. Accordingly, I am of the considered opinion that it cannot be said that the policy is without authority, jurisdiction and competence. This is settled in law that by executive instructions rules can be supplemented but no executive instructions can supplant the rules. Thus, in the present case by executive instructions (Annexure P-2) the rules are not supplanted and, therefore, no interference is warranted on this count in the policy. The other judgments cited by the petitioners have no application because of the aforesaid detailed analysis. The judgment in Biharilal Jaiswal (supra) is passed in a different factual backdrop with regard to different provision of the concerned enactment. 15. In this view of the matter, I am unable to hold that the policy is not in consonance with law. Accordingly, the policy Annexure P-2 cannot be set aside. The judgment in Biharilal Jaiswal (supra) is passed in a different factual backdrop with regard to different provision of the concerned enactment. 15. In this view of the matter, I am unable to hold that the policy is not in consonance with law. Accordingly, the policy Annexure P-2 cannot be set aside. This is also not in dispute between the parties that as per 2011 Rules the Chief Executive Officer is the appointing authority. Thus, I find no infirmity in the condition No.5 of the transfer policy (Annexure P-2), whereby the Chief Executive Officer is made competent to transfer the Panchayat Secretaries. Thus, neither the policy is liable to be interfered with nor the transfer order based upon it. 16. Consequently, I find no reason to interfere in this matter. However, before parting with the matter would like to observe that these matters were heard on the basis of common questions involved in these matters. Therefore, if any person has some individual grievance like ailment or some other difficulty in carrying out the transfer orders, liberty is reserved to such petitioners to prefer representation before the competent authority against the transfer order in question. 17. On the basis of aforesaid analysis, I find no reason to interfere in the policy and against the transfer order. Accordingly, petitions are dismissed. No costs.