c^\< IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION(S) N0. 431^"OF 20JP PETITIONER: Dinanath Pandey, Aged About- 50 Years, S/o- Shri Jagganath Pandey, Occupation- Seryice- Assistant Grade-II cum Accountant, Janpad Panchayat Udaipur, Distt- Surguja (C.G.) ^ ^••'".. ^•^•;--- J^"^ €^>y o ^ VERSUS RESPONDENT(S):1. State of Chhattisgarh Through Secretary, Department of Panchayat and Samaj Seva, D.K.S. Bhawan, Raipur (C.G.) 2. State of Chhattisgarh Through Secretaiy, Department of Tribal Welfare, D.K.S. Bhawan, Raipur (C.G.) 3. Chief Executive Officer, Jila Panchayat Surguja, Distt- Surguja (C.G.) 4. Chief Executive Officer, Janpad Panchayat Udaipur, Distt- Surguja (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA _DJG"HA-TX-Q HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fS) No. 6317 of2010 ^i PETITIONER Dinanath Pandey. VERSUS State ofChhattisgarh & Others. RESPONDENTS : WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Vinay Pandey, Advocate for the petitioner. Shri Sushil Dubey, Govemment Advocate with Shri P.K.Bhaduri, Panel Lawyer for the State/respondent No. 1 and 2. ORDER (ORAL) (Passed on 16tt day ofMarch, 2011) p¥! Challenge in this petition is to the order dated 26.10.2010 (Annexure P/l) whereby the petitioner, working as Assistant Grade II cum Accountant, Janpad Panchayat Udaipur, was transferred to Janpad Panchayat, Kusmi. Leamed counsel appearing for the petitioner submits that the appointment order dated 15.7.2010 (Annexure P/3) whereby the petitioner was transferred from Janpad Panchayat, Udaipur to Janpad Panchayat, Kusmi, was cancelled on the same date (Annexure P/4). Inspite of cancellation of the said order, the respondent No. 4 issued an order dated 11.10.2010 (Annexure P/5) relieved the petitioner from his present place of posting, however, the same could not be executed. But all of a sudden, the respondent No. 3 issued the impugned order dated 26.10.2010 transferring the petitioner, as aforestated. Shri Pandey submits that the respondent No. 3 has no authority to pass the impugned order as the transfer could have been made only on making an application by the petitioner and in that event, if the petitioner is transferred from one Janpad Panchayat to another Janpad Panchayat, he would be placed at the junior most position in his cadre. In fact, the petitioner never made an application for his transfer from the present place of posting. The power of ^N Zf? s^i'" 4. transferring an employee of Panchayat ser^ices vests with the appointing authority whereas the impugned transfer order was passed by the respondent No. 3, who is not the appointing authority ofthe petitioner. On the other hand, Shri Dubey, leamed Govemment Advocate appearing for the State/respondents submits that pursuant to the circular dated 17.03.2008 (Annexure R/l) issued by the Panchayat & Rural Development Department, it has been directed that the services of the employees, who are working in Zila Panchayat/Janpad Panchayat, are transferable with the consent of both the Panchayats, therefore, the order under challenge is just, proper and needs no interference. Further, in the administrative exigency, an employee may be transferred to any place. He further submits that under Rule 27 ofthe Chhattisgarh Panchayat Service (Recmitment and General Conditions ofSers^ices) Rules, 1999 (for short 'the Rules, 1999') there is no restriction on transferring an employee ofone Janpad Panchayat to another Janpad Panchayat. Heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto. Rule 27 ofthe Rules, 1999 reads as under: "27. Appointment of Panchayat employee to and his Panchayat. - Notwithstanding anything contained in these mles, the appointing authority on application made by an employee of Panchayat Ser^ice of other Panchayat, may appoint such employee to a same or equivalent post in the Panchayat ser^ice on such terms and conditions as may be mutually agreed upon between the two Panchayats, and subject to the following conditions, namely - (i) Such appointment shall not be made to post to be filled by promotion; (ii) The person so appointed shall received the junior most rank, for the purpose of seniority, in the cadre of the post to which he is appointed, as it stands on the date ofsuch appointment/9 ^ 6. On pemsal ofthe above provision, it is clear that the contention of the State/respondents that Rule 27 of the Rules, 1999 does not contemplate ofany application or any consent for transfer as this is only with regard to the appointment, is misplaced as the bare pemsal ofthe provisions ofRule 27 ofthe Rules, 1999 makes it clear that an employee of one Janpad Panchayat may be posted or appointed only on the basis of application made by the concemed employee and with the consent of other Janpad Panchayat where he is seeking posting. It further gets support from clause (ii) of Rule 27 of the Rules, 1999 which provides that if a person so appointed shall receive the junior most rank for the purpose of seniority, in the cadre of the post to which he is appointed, on transfer. 7. In the case on hand, it is an admitted position that the petitioner never made any application for his transfer from Janpad Panchayat Udaipur to Janpad Panchayat., Kusmi. The State/respondents have not controverted the submission of the petitioner and it is not the case of the respondents that the impugned transfer order was passed on request of the petitioner. Even if on any ground, the impugned transfer order is allowed to be executed, the petitioner shall be placed in the junior most position in his cadre which would infringe his legal right of future promotion and other ser^ice benefits etc. Thus, the same is not sustainable in the eyes oflaw. 8. In view of the above and for the reasons stated hereinabove, the impugned order dated 26.10.2010 (Annexure P/l) is quashed. 9. Accordingly, the writ petition is allowed. No order asto costs. Amit Sd/- Satish K. Agnihotri Judge