IN THE HIGH COURT OF J PETITION ER RESPONDENTS a? UDCIATURE OF CHHA'ITISGARH AT BILASPUR w.P.s. Nosgzgé /2o1o v y“ Omprakash, son of Shri Ramvishal Singh, aged 38 years, Secretary (Panchayat Karmi) Gram Panchayat Puhputra Janpad ‘ Lakhanpur, District Sarguja (C.G.) VERSUS State of Chhattisgarh through Secretary Panchayat and Rural- Development ; i _D.K.S‘. Bhawan Raipu'r (Chhattisgarh). Chief Executive Officer Zeela Panchayat Sarguaj“, Ambikapur. Chief Executive ‘Officer Janpad Pa’nchayat' LakanpUr, District Sarguja (Chhattisgarh). WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIAN HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) NO.3236 OF 2010 PETITIONER Omprakash Versus RESPONDENTS State of Chhattisgarh & Others (Writ petitions under Article 226/227 ofthe Constitution of lndia) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Shri J.S.Baraik, Advocate for the petitioner. Shri Arun Sao, Government Advocate with Shri Shashank Thakur, Panei Lawyer for the State/ respondents No.1 & 3. None appears for the respondent No.2 (Delivered on this 5 +day of August, 201‘1) 1. Chalienge in this petition is to the transfer order dated 25.06.2010 (A'nnexure P-1), whereby the petitioner working as Panchayat Karmi (Secretary) in Gram Panchayat Puhputra, Janpad Panchayat Lakhanpur, has been transferred to Gram Panchayat, Jamdi, Janpad Panchayat Lundra. 2. The facts, briefiy stated, are that the petitioner was initially appointed by the Chief Executive Officer, Janpad Panchayat Lakhanpur as Panchayat Karmi under the provisions of the Chhattisgarh Panchayat Service (Recruitment And General Conditions Services) Rules, 1999 (for short “the Rules, 1999”). Thereafter, the petitioner was appointed as Secretary under the provisions of Section 69 of the Panchayat Raj Adhiniyam, 1993 (for short “the Adhiniyam, 19935. 3. The ground of challenge as has been pleaded as also argued by the learned counsel appearing for the petitioner is that, the Chief ‘4 .. ;#4 Executive Officer, Zila Panchayat, Surguja, is not competent to transfer the Panchayat Karmi (Secretary) to any other Janpad Panchayat without consent of the other Panchayat, as prescribed under Rule 27 of the Rules, 1999 and, as such, the transfer order is bad and not sustainable in the eyes of law. Shri Sao, learned counsel appearing for the State/respondents No.1 & 3, submits that the appointment of the petitioner initially as Panchayat Karmi under the guidelines dated 29—8-2008 (Annexure - R/1) and thereafter, he was appointed as Panchayat Secretary under the provisions of Section 69 of the Adhiniyam, 1993. Thus, Rule 27 of the Rules, 1999 would not be applicable I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto Section 7O of the Adhiniyam, 1993 provides for appointment of such other officers and servants as it considers necessary for the efficient discharge of its duties. It further provides qualification, 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. ln exercise of powers conferred under the provisions of Section 70 of the Adhiniyam, 1993, the State Government has framed the following rules : 1. ‘Panchayat Shiksha Karmis (Recruitment and Conditions of service) Rules, 1997’. 2. ‘Panchayat Services (Conduct) Rules, 1998’. 3 ‘Panchayat Service (Recruitment and General Conditions of service) Rules, 1999’. 4. ‘Panchayat Service (Disciplineand Appeal) Rules, 1999’. 5. ’Panchayat‘ (Class Ill Executive Agriculture Service Recruitment) Rules, 1999.’ a Ax pr, ‘Panchayat (Gramin Vikas Service Recruitment), Rules, 1999’. ‘Panchayat (Women and Child Development Service Recruitment) Rules, 1999’. ‘Panchayat (Class iii Executive Horticulture Service Recruitment) Rules, 1999’. ‘Panchayat Contract Service (lndian System of Medicine, Unani and Homoeopathy) Rules, 1999’. 10. ‘Panchayat (Veterinary Service Recruitment) Rules, 1999‘. 11. ‘Panchayat Fisheries Service (Recruitment) Rules, 1999’. 12. ‘Panchayat (Health Service Recruitment), 13. ‘Panchayat Service (Kala Karmi) Recruitment Rules, 1999.’ Rules, 1999’. The guidelines were also framed under Section 70 (1) read with Section 69 (1) of the Adhiniyam, 1993. Thus, the guidelines became a part of delegated legislation and have the statutory force. Under schedule - l to the said guidelines wherein a provision was made for promotion of Panchayat Karmis. Rule 2 of the Rules, 1999 makes it clear that the provisions of rules shall apply to all the posts in Zila Panchayat and Janpad Panchayat except to the posts on a contingency paid establishment, or work-charged establishment, or daily wage establishment or posts to which appointments are made on part time basis. 10. ‘Panchayat’ is defined under Rule 3 (d) of the Rules, 1999 i.e. ‘Panchayat’ means a Japad Panchayat and a Zila Panchayat. 11. ‘Panchayat service’ is defined under Rule 3 (e) of the Rules, 1999 i.e.”Panchayat service‘ means the service of Zila Panchayat or Janpad Panchayat, as the case may be, under sub—section (1) of Section 70 of the Act. :25 12. Even if the Panchayat Karmi is appointed under the abovestated guidelines, which were framed in exercise of powers conferred under Section 7O read with Section 69 of the Adhiniyam, 1993, the Panchayat Karmi as well as the Panchayat Secretary became a member of Panchayat Service as defined hereinabove. 13. Panchayat Karmis are appointed, on the recommendation of Gram Panchayat approved by Gram Sabha, by the Janpad Panchayat. The present petitioner was appointed as Panchayat Secretary under the provisions of Section 69 (1) of the Adhiniyam, 1993 wherein his substantive post continues to be Panchayat Karmi. 14. Rule 27 of the Rules, 1999 provides that no employee of the Panchayat i.e. Janpad Panchayat or Zila Panchayat can be posted in the Panchayat service of other panchayat except by mutual agreement between the two Panchayats. 15. Condition (ii) under Rule 27 makes its clear that any person appointed in other Janpad Panchayat would be junior most for the purpose of seniority and, as such, if a member of Panchayat service of one Panchayat is appointed in other Janpad Panchayat without an agreement, the said employee would be prejudiced, as he would be placed at the junior most in the seniority list. 16. The instant case though it does not seem to be a case of posting from one Janpad Panchayat to other Janpad Panchayat. ln that event it can either be a case of deputation or transfer. Transfer cannot be made from one Janpad Panchayat to other Janpad Panchayat, as the Panchayat Karmi is a member of Panchayat Service of a particular Janpad Panchayat. 17. 18. \«a/ it is well settled principle of iaw the employee cannot be sent to other department on deputation without consent of the employee concerned. ln that‘event also the order of transfer is bad, as admittedly no consent of the employee or the other Panchayat has been taken. Looking from all angles, the transfer of the petitioner is bad, vitiated and not sustainable in the eyes of law. The Supreme Court in Balco Captive Power Plant Mazdoor Sangh and Another v. National Thermal Power Corporation and Others’, observed as under : “35. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre—decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier. in the case on hand, the employees are neither party to tripartite agreement nor they condition. have Therefore, been heard the before action changing of the management their service is violative of Article 14 of the Constitution of lndia. Similar view has been taken by this Court in H.L, Trehan v. Union of lndia. ln para 11 of the judgment, this Court observed as under: (SCC pp.769-70). “11....lt is now a well established principle of law that there can be no deprivation or curtailment of any existing Government right, servant advantage without or complying benefit with enjoyed the rules by of a natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing will offend conditions against of theprovision service of a of Government Article 14 servant of the Constitution. Admittedly, the employees of CORIL were not case given before an opportunity the impugned of hearing circular or was representing issued by their the Board therefore, of be Directors. sustained The as it impugned offends against circular the cannot, rules of natural justice. (emphasis supplied)” M 1 (2007) 14 scc 234 "‘\ W Ashokl GQWYK