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Madhya Pradesh High Court · body

2015 DIGILAW 496 (MP)

Vishal Singh v. State of M. P.

2015-04-27

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 226 of the Constitution challenges the transfer order dated 10.9.2014, whereby the petitioner, a Deputy Commissioner (Development) is transferred as Chief Executive Officer (CEO), Seoni. 2. Shri Pratip Visoriya, learned counsel for the petitioner challenged this order on the singular ground that the petitioner was earlier working as Chief Executive Officer, Janpad Panchayat (9300 - 34800 + Grade Pay 4200). The petitioner was promoted from the post of CEO to Deputy Commissioner (Development) by order dated 30.12.2013. He also referred the statutory recruitment rules, namely Madhya Pradesh Panchayat Tatha Gramin Vikas (Rajpatrit) Bharti Niyam, 1988 (for short, the “Recruitment Rules”) to contend that the post of Deputy Commissioner (Development) is class-I post whereas the post of Additional Assistant Development Commissioner/Chief Executive Officer, Janpad Panchayat is a feeder post. Schedule-I of the said rules was referred to show that the said feeder post is a class-II gazetted post. He submits that petitioner's transfer to a feeder post amounts to downgrading of the status. The petitioner is entitled to continue on the statutory post on which he was promoted. He submits that the statutory rules cannot be modified by putting a note in the transfer order. He relied on (1986) 3 SCC 7 (Vice-Chancellor, Lalit Narain Mithila University v. Dayanand Jha). 3. Smt. Nidhi Patankar, learned Government Advocate, supported the order. By taking assistance from Note-2, appended to the transfer order, it is contended that the post of CEO, Janpad Panchayat is upgraded to the level of Deputy Commissioner (Development). Accordingly, the petitioner will get same salary. Therefore, the petitioner has no valid grievance and petition is liable to be dismissed. 4. No other point is pressed by learned counsel for the parties. 5. I have heard learned counsel for the parties and perused the record. 6. The Recruitment rules are made under proviso to Article 309 of the Constitution. Hence, the rules are statutory in nature. Schedule- I shows that the post of Deputy Commissioner (Development) is a class-I post (15600 - 39100 + Grade Pay 6600) whereas the post of CEO/Additional Assistant Development Commissioner is a class-II post carrying inferior scale 9300 - 34800 + Grade Pay 4200. The stand of learned counsel for the State is that once the petitioner's pay scale is protected, there is no reason to raise eyebrows against the transfer order. The stand of learned counsel for the State is that once the petitioner's pay scale is protected, there is no reason to raise eyebrows against the transfer order. I do not see any merit in this contention. An employee is not appointed only for a pay scale. The employee has a valuable legal right to hold the statutory post on which he was promoted. The post of Deputy Commissioner is classified as Class-I post whereas the post of CEO is not only feeder and inferior post, it is classified as class-II post. The nature of duties and responsibilities attached to these two statutory posts are also totally different. This Court dealt with this aspect in 2014 (1) MPLJ 620 (Pratap Singh Mandeliya v. State of MP and others). In view of said judgment, the point involved in this matter is no more res integra. In the said judgment, it was held as under :- “20. The Principal Seat in Writ Petition No.112/97 (Manish Menon v. Shri Gujrati Shikshan Sangh Raipur and others) set aside the transfer order of a Upper Division Teacher whereby he was directed to teach middle school students of the same institution. In the said case the petitioner was appointed as UDT to teach class -XI and XII students. The management transferred him in the same school without reducing salary. Yet, this Court by order dated 1.12.1997 set aside the said order and opined that it amounts to change of service condition. The said order was affirmed by the Division Bench in LPA. This is settled in law that equivalence is not confined to pay scale only. It has relation with nature of duties, responsibilities, powers which are being exercised. These relevant factors have relation with status of the officer. Supreme Court in (2007)6 SCC 220 (Tejshree Ghag and others v. Prakash Parashuram Patil and others) has opined as under :- “An order of transfer ordinarily should be in terms of the existing rules. Transfer may even be incidental to the conditions of service, but thereby nobody can be deprived on his existing right. Existence of power and exercise thereof are two different concepts. An executive power in absence of any statutory rules cannot be exercised which would result in civil or penal consequences. Such exercise of power must, moreover, be bonafide. It cannot be done for unauthorized purpose. Existence of power and exercise thereof are two different concepts. An executive power in absence of any statutory rules cannot be exercised which would result in civil or penal consequences. Such exercise of power must, moreover, be bonafide. It cannot be done for unauthorized purpose. An executive order passed for unauthorized purpose would amount to malice in law. An order of transfer cannot prejudicially affect the status of an employee. If order of transfer substantially affect the status of an employee, the same would be violative of the conditions of service and this illegal.” (Emphasize supplied) In (1986)2 SCC 7 (Vice-Chancellor, L.N. Mithila University v. Dayanand Jha) the apex Court opined as under :- “In the present case, although the two posts of Pincipal and Reader are carried on the same scale of pay, the post of Principal has higher duties and responsibilities. Apart from the fact that there are certain privileges and allowances attached to it, the Principal being the head of the College has many statutory rights. Thus the post of Principal cannot be treated as equivalent to that of Reader for the purposes of section 10(14).” 21. In the light of aforesaid, in my opinion, petitioner's transfer to Pachmadhi or under Rajiv Gandhi Watershed Mission cannot be said to be on equivalent post. By passing impugned orders, petitioner's service conditions are changed. He is deprived to perform statutory duties attached to his post. The petitioner being a CEO was equipped with statutory powers which includes administrative powers. Same could not have been taken away arbitrarily. 22. As analyzed above, in the opinion of this Court, the impugned orders passed in these writ petitions cannot be permitted to stand. The same are set aside. In the manner respondents have passed impugned orders, I deem it proper to impose a cost of Rs.5,000/- which shall be paid to the petitioner within 30 days. The petitions are allowed.” 7. In the light of aforesaid legal position, it is clear that the action of the respondents in transferring the petitioner as CEO is impermissible. If such transfer is permitted, it will have an impact of depriving the petitioner to perform his statutory duties which are attached to the promotional post of Deputy Commissioner (Development). This will also prejudicially affect the status of the petitioner. If such transfer is permitted, it will have an impact of depriving the petitioner to perform his statutory duties which are attached to the promotional post of Deputy Commissioner (Development). This will also prejudicially affect the status of the petitioner. In the case of Manish Menon v. Shri Gujrati Shikshan Sangh Raipur and others (referred in para 20 above), a teacher was transferred\in the same institution within the same building but such transfer order was interfered with for the reasons mentioned in the judgment. 8. In the light of aforesaid analysis, the impugned order cannot be permitted to stand. The order dated 10.9.2014 to the extent it relates to the petitioner is set aside. 9. Petition is allowed. ................