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Madhya Pradesh High Court · body

2020 DIGILAW 1041 (MP)

Vishambhar Singh Sikarwar v. State of M. P.

2020-10-07

SHEEL NAGU

body2020
ORDER 1. The present petition u/Art.226 of the Constitution assails the order of transfer Annexure P-1 dated 7.8.2019 passed by the State transferring the petitioner from the post of Deputy Director, Public Instructions Bhind to the post of Principal, DIET, Bhind. 2. The challenge to the aforesaid transfer is based on the ground that the cadre of Deputy Director and the cadre of Principal, DIET are distinct and are governed by two separate sets of statutory rules, both framed under proviso to Article 309 of the Constitution and since these two posts i.e. Deputy Director, Public Instructions and the Principal, DIET are not interchangeable, impugned transfer order is unlawful. 3. Learned counsel for the petitioner submits that the petitioner does not possess the experience and qualification required to discharge the duties on the post of Principal, DIET, for which Schedule III-B of Madhya Pradesh School Education Teacher Education And Training Academic (Gazetted) Service Recruitment and Conditions of Service Rules, 2011 (for brevity “2011 Rules”) is pressed into service. 4. Learned counsel for the State on the other hand referring to the Madhya Pradesh School Education District Institute of Education and Training (Gazetted) Service Recruitment Rules, 1991 (for brevity “1991 Rules”), Scheduled II, submits that the said two posts are interchangeable. The State counsel informs that though 1991 Rules have been repealed by 2011 Rules but by virtue of rule 23 of 2011 Rules, the repealing of 1991 Rules is limited to the matters which are covered by 2011 Rules. 5. It is submitted that 2011 Rules do not provide for the aspect of interchangeability between the posts of Deputy Director, Public Instructions and Principal, DIET and, therefore, the said aspect of interchangeability between these two posts continues to be alive and a part of 2011 Rules. 6. It is not disputed at the bar that the pay-scale attached to the said two posts is identical and therefore impugned transfer does not cause any pecuniary disadvantage to the petitioner. 7. Moreso, this Court to clarify the legal position reproduces Rule 6 of 1991 Rules and rule 6 of 2011 Rules : Rule 6 of 1991 Rules: 6. 6. It is not disputed at the bar that the pay-scale attached to the said two posts is identical and therefore impugned transfer does not cause any pecuniary disadvantage to the petitioner. 7. Moreso, this Court to clarify the legal position reproduces Rule 6 of 1991 Rules and rule 6 of 2011 Rules : Rule 6 of 1991 Rules: 6. Method of Recruitment.-(1) Recruitment to the service, after the commencement of these rules, shall be made by the following methods, viz:- (a) by Direct Recruitment by competitive examination; (b) by promotion of members already in the service; (c) by transfer of persons who hold in substantive capacity such posts in such services as may be specified in this behalf. (2) The number of persons recruited under clause (b) or clause (c) of sub-rule (1) shall not at any time exceed the percentage shown in Schedule II of the number of posts as specified in Schedule I. (3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the service as may be required to be filled during any particular period of recruitment and the number of persons to be recruited by such method, shall be determined on each occasion by the appointing authority. (4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government, the exigencies of the service so require, the Government may, with the prior concurrence of the General Administrative Department adopt such methods of recruitment to the service other than those specified in the said sub-rule as it may, by order issued in this behalf prescribed. Rule 6 of 2011 Rules: 6. Method of Recruitment.- (1) Recruitment to the service, after the commencement of these rules, shall be made by the following methods, namely:- (a) by direct recruitment through competitive examination or by selection; (b) by promotion amongst members of the service as specified in column (3) of Schedule-IV; (c) by transfer or on deputation of the persons appointed on a substantive post in such services as may be specified by the Government in this behalf. (2) The number of persons recruited under clause (a) or (b) of sub-rule (1) shall not, at any time exceed the percentage as shown in Schedule-II-A and II-B of the number of posts as specified in Schedule-I-A and I-B. (3) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government, the exigencies of the service so require, the Government, may with the prior concurrence of the General Administration Department and in consultation with the Public Service Commission adopt any other method of recruitment to the service other than those specified in the said sub-rule.” 8. For ready reference and convenience, the repealing & saving clause contained in rule 23 of 2011 Rules is further reproduced below: “23. Repeal and Saving.-All rules corresponding to these rules relating to recruitment and promotion with the Madhya Pradesh School Education Recruitment and promotion Rules, 1982 and Madhya Pradesh District Institute of Education and Training (Gazetted) Service Recruitment Rules, 1991, and inforce immediately, before the commencement of these rules are hereby repealed in respect of the matters covered by these rules.” 9. A comparative reading of rule 6 in 1991 Rules and in 2011 Rules reveals that the said rule 6 are almost identical. Rule 6 in both the Rules provides for transfer of persons holding in substantive capacity such posts and in such services as may be specified in that behalf by the government to be one of the modes of recruitment. 9.1 Meaning thereby that even a person belonging to a different services or a cadre can very well be appointed and posted against the posts recognized under 2011 Rules. 9.2 Moreso, non obstante clause which was and is part of Rule 6 in both the said Rules i.e. 1991 Rules and 2011 Rules, confers wide powers to the State to adopt any other mode of recruitment besides prescribed in Clause (a), (b) & (c) of Rule 6 subject to concurrence of GAD and in consultation with PSC. 10. In view of above legal position, it is apparent that the respondent/State has not travelled beyond its powers by passing the impugned order and posting the petitioner from the post of Deputy Director, Public Instructions Bhind to the post of Principal, DIET, Bhind. 11. The main ground of challenge of two posts being not interchangeable having fallen and no other ground raised no interference is called for. 12. 11. The main ground of challenge of two posts being not interchangeable having fallen and no other ground raised no interference is called for. 12. Accordingly, this Court deems it appropriate not to interfere in the said matter and dismisses the present petition, sans cost. R.B.S. Tomar for petitioner; A.S. Bhadoriya for respondents No.1 and 2/State; N.K. Gupta with D.S. Raghuvanshi for respondent No.3