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2018 DIGILAW 409 (GUJ)

ASHISHKUMAR HASMUKHBHAI MODI v. STATE OF GUJARAT

2018-02-06

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
JUDGMENT : R.SUBHASH REDDY, J. 1. Aforesaid writ petitions are placed before this Court pursuant to order dated 21.10.2016 passed by the learned Single Judge, referring the matter to Division Bench. 2. Reference is made to Division Bench, as learned Single Judge was not in agreement with the view expressed by the learned Single Judge of this Court in the case of Snehlata Patel v/s. Bharuch District Panchayat reported in 2006 (2) GCD 1272 . 3. Learned Counsel Mr.G.M.Joshi appearing for the petitioners submitted that during the pendency of this batch of petitions, request of the petitioners to retransfer them to Ahmedabad District Panchayat is considered, and seeks permission for withdrawal of the petitions. 4. In view of question of law referred to Division Bench by the learned Single Judge, for limited purpose, we have heard the matter with reference to question of law involved in this batch of petitions. 5. For the sake of convenience, Special Civil Application No.14180 of 2015 is treated as lead matter. By the aforesaid Special Civil Application filed under Article 226 of the Constitution of India, the petitioners, serving as panchayat employees have prayed for following reliefs : “(A) This Honourable Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus for quashing and setting aside the order dated 14.08.2015, transferring the petitioner to Botad District and the relieving order dated 17.08.2015 and be pleased to direct the respondents to retransfer the petitioner to Ahmedabad District with full consequential benefits and continuity of service as if the impugned order were never passed; (B) During the admission, pendency and final disposal of this petition be pleased to stay the operation, implementation and execution of the order dated 14.08.2015, transferring the petitioner to Botad District and the relieving order dated 17.08.2015. (C) Be pleased to award the cost of this petition. (D) Any order and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner.” 6. The petitioners in Special Civil Application No.14180 of 2015 and other petitioners in the petitions were appointed as Gram Panchayat Sahayak by the District Panchayat, Kutch in March, 2004, pursuant to the regular selection process and were posted in different villages of Kutch District, initially for five years. The petitioners in Special Civil Application No.14180 of 2015 and other petitioners in the petitions were appointed as Gram Panchayat Sahayak by the District Panchayat, Kutch in March, 2004, pursuant to the regular selection process and were posted in different villages of Kutch District, initially for five years. They were paid fixed salary and on completion of five years of service, they were absorbed in the pay scale of Rs.5200-20,200 with grade pay of Rs.1900/- as Secretary of the Gram Panchayat. The petitioners applied for the inter-district transfer and vide order dated 18.12.2014, they were transferred to District Panchayat, Ahmedabad. In view of request transfer, they scarified their seniority of five years. When the petitioners were working in Ahmedabad District Panchayat, by impugned orders in the petition, they were transferred to District Pancyayat, Botad, which was newly constituted District by including few Talukas of District Bhavnagar and few Taluka of District Ahmedabad. 7 Issue raised in the writ petitions is questioning the authority and power of the State Government to transfer the petitioners working in one panchayat to another panchayat. It is the defence of the respondent State Government that in view of Section 227 to 234 of the Gujarat Panchayats Act, 1993, the Government has power. For the purpose of limited aspect to answer reference, it is not necessary to refer various provisions of the Gujarat Panchayats Act, 1993 and we confine only to relevant provisions of the Gujarat Panchayats Act, 1993 and Rules made therein. It is to be noted that we are not examining the question viz. whether in a given case, the Government has exercised the power legally or not, in view of submission made by learned Counsel Mr. Joshi for the petitioners that during the pendency of the petitions, request of the petitioners was already considered and they were brought back and transferred to District Panchayat, Ahmedabad. 8. The learned Single Judge referred the matter to the Division Bench only in view of judgment of the learned Single Judge of this Court in the case of Snehlata Patel v/s. Bharuch District Panchayat reported in 2006 (2) GCD 1272 . In the aforesaid case, the petitioner therein was appointed by the Bharuch District Panchayat, and she was holding the post of Treasurer in the set up of Bharuch District Panchayat. It appears that originally Bharcuh revenue district is divided into two parts viz. In the aforesaid case, the petitioner therein was appointed by the Bharuch District Panchayat, and she was holding the post of Treasurer in the set up of Bharuch District Panchayat. It appears that originally Bharcuh revenue district is divided into two parts viz. (1) Bharuch District and (2) Narmada District on account of aforesaid formation of new Narmada District and as certain area of Bharuch District also included in Narmada District, new Narmada District Panchayat is formed and the service of the petitioners is allotted to Narmada District Panchayat. In the aforesaid judgment, the learned Single Judge of this Court has held that on account of conjoint reading of the scheme of Gujarat Panchayats Act, 1993, more particularly, from section 227 to 234 of the Gujarat Panchayats Act, 1993, it is within the power of the State Government to allocate by general or special order the service of the servants working in one Panchayat to another Panchayat. Learned Single Judge vide order dated 21.10.2016 mainly by recording finding that it is difficult to read the power of the State Government under Section 230 of the Act to allocate the petitioners from Ahmedabad District Panchayat to Botad District Panchayat, held that if such transfers are to be ordered, same has to be in accordance with law and if there is no power which empowers the State Government to do so, then it cannot issue such directions for transfer as referred in the matter. 9. For the purpose of answering the reference, we deem it appropriate to refer provisions under Section 227 of the Panchayat Act, 1993. Section 227 of the Panchayat Act, 1993 reads as under : “227. Panchayat service to be regulated by rules. (1) For the purpose of bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a panchayat service in connection with the affairs of panchayats. Such service shall be distinct from the State service. Panchayat service to be regulated by rules. (1) For the purpose of bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a panchayat service in connection with the affairs of panchayats. Such service shall be distinct from the State service. (2) The panchayat service shall consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such, as the State Government may, by order from time to time determine : Provided that nothing in this sub—section shall prevent ti district panchayat from altering, with the previous approval of the State Government any class, cadre or number of posts so determined by the State Government. (3)(a) The cadres referred to in subsection (2) may consists of district cadres. taluka cadres and local cadres. (b) A servant belonging to a district cadre shall be liable to be posted whether by promotion or transfer to any post in any taluka in the district. (c) A servant belonging to a taluka cadre shall be liable to be posted whether by promotion or transfer to any post in any’ village in the same taluka. (d) A servant belonging to a local cadre shall be liable to be posted whether by promotion or transfer to any post in the same village. (4) In addition to the posts in the cadres referred to in subsection (3), a panchayat may have such other posts of such classes as the State Government may by general or special order determine. Such posts shall be called “deputation posts” and shall be filled in accordance with the provisions of section 231. (5) Subject to the provisions of this Act, the State Government may make rules regulating the mode or recruitment either by holding examinations or otherwise and conditions of service or persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the panchayats service and disciplinary action against any such officers or servants. (6) Rules made under subsection (5) shall in particular contain- (a) a provision entitling servants of such cadres in the panchayat service to promotion to such cadre in the State service as may be prescribed; (b) a provision specifying the classes of posts recruitment to which shall he made through the District Panchayat Service Selection Committee. and the classes of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board. and (c) a provision regarding the percentage of vacancies to be, reserved for the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the panchayat service. (7) Such rules may provide for inter-district transfers of servants belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made. (8) The promotion of servant in a cadre in the panchayat service to a cadre in the State service in accordance with rules made under clause (a) of subsection (6) shall not affect- (a) any obligation or liability incurred or default committed by such servant during the period of his service in a cadre in the panchayat service while acting or purporting to act in the discharge of his duties as such servant, or (b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default, and any such investigation, disciplinary action or remedy may be instituted, continued or enforced in accordance with the law applicable thereto during the said period of service by such authority as the State Government may by general or special order specify in this behalf.” 10. As per aforesaid provision, panchayat services is to be regulated by rules and further under section 227(7) of the Gujarat Panchayats Act, 1993, such rules provide for inter-district transfers of servant belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made. During the course of hearing, it is brought to our notice the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995. Rule 3 of the said Rules reads as under : “3. During the course of hearing, it is brought to our notice the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995. Rule 3 of the said Rules reads as under : “3. Inter-District Transfers.(l) A member of panchayat service belonging to a district cadre and taluka cadre in a district may, by an order in writing, be transferred by the State Government or an officer authorised by it in his behalf to the corresponding cadre in the other district if - (a) in the Opinion of the State Government or an officer authorised by it in this behalf, such transfer is required to be made (i) in the interest of public, or (ii) in order to absorb the member on account of his service becoming surplus for requirements of the district from which he is transferred, or (b) an application is made to the District Development Officer in that behalf by the member and the District Development Officer of the other District agrees to such transfer under subrule (2) : Provided that such an application is made by those District Cadre Panchayat Servants who have completed three years service in the same district Panchayat after successful completion of the probation period and such preservice training, if any, as may be required under the rules. (2) On receipt of an application under subrule (1) the District Development Officer shall having regard to the interest of the relevant panchayat in the District. Decide whether the member may be transferred or not. Where he decides that the member may be transferred he shall consult the district Development Officer of the District to the corresponding cadre of which the member is to be transferred as t whether he agrees to the transfer. Where the latter District Development Officer agrees to the transfer, the former district Development Officer shall forward the application together with other records to the State Government or the officers authorised by it in this behalf, for taking action under subrule (1).” 11. Rule 3 of the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995 specifically deal with inter-district transfers. Where the latter District Development Officer agrees to the transfer, the former district Development Officer shall forward the application together with other records to the State Government or the officers authorised by it in this behalf, for taking action under subrule (1).” 11. Rule 3 of the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995 specifically deal with inter-district transfers. It is categorically mentioned in the said rule that a member of Panchayat service belonging to a district cadre and taluka cadre in district may, by an order in writing, be transferred by the State Government or an officer authorized by it in his behalf to the corresponding cadre in the other district, if in the opinion of the State Government, such transfer is required to be made in the interest of public or in order to absorb the member on account of the service becoming surplus for requirements of the district from which he is transferred or in case where the application is made to the District Development Officer in that behalf by the member. 12. A composite reading of provisions under Section 227 of the Gujarat Panchayats Act, 1993 coupled with Rule 3 of Gujarat Panchayat Service (Transfer of Servants) Rules, 1995, it cannot be said that State Government has no power to effect inter-district transfer to the member of panchayat service belonging to district cadre or Taluka cadre in a district. Whether in a given case, such power is exercised in accordance with the Rules or not, is a matter to be examined having regard to facts and circumstances of each case. In view of Gujarat Panchayat Service (Transfer of Servants) Rules, 1995 which is framed in exercise of powers under Section 227 of the Gujarat Panchayats Act, 1993, we are of the view that State Government is empowered to transfer member of panchayat service belonging to district cadre or taluka cadre in a district, by an order in writing, on the grounds mentioned in Rule 3 of the Gujarat Panchayat Service (Transfer of Servants) Rules, 1995. 13. 13. Though it is not specifically dealt in the judgment in the case of case of Snehlata Patel v/s. Bharuch District Panchayat reported in 2006 (2) GCD 1272 with reference to Gujarat Panchayat Service (Transfer of Servants) Rules, 1995 framed in exercise of powers under Section 227 of the Gujarat Panchayats Act, 1993, but having regard to said Rules, we are in agreement with the view taken by the learned Single Judge in the case of Snehlata Patel (Supra) that it is within the power of the State Government to allocate by general or special order the service of the servants working in one panchayat to another panchayat. We answer the reference accordingly. 14. As the learned Counsel for the petitioners made a request to withdraw the Special Civil Applications stating that petitioners' request to retransfer is considered and they are posted in Ahmedabad District Panchayat, as such, we grant permission as prayed for. The petitions stand dismissed as withdrawn by answering the reference as referred above.