WP/3275/2006 of SMT.ASHA SAHU Vs STATE OF CHHATTISGARH AND ORS. on 19 December 2008

1. StateofChhattisgarh,ThroughtheSecretary,PanchayatandRuralDevelopmentDepartment,&.K.S.Bhawan,Mantralaya, Raipur (C£).Secretary,PanchayatandRuralDevelopmentDepartment,&.K.S.Bhawan,Mantralaya, Raipur (C£).2. ChiefExecutiveOfficer,DistrictPanchayat, Distt. Raipur.Panchayat, Distt. Raipur.

RESPQNDENTS

3. Chief Executive Officer, Janpad PanchayatKasdol Distt. Raipur.Kasdol Distt. Raipur.

4. Chief Executive Officer, Janpad PanchayatBalodabazar, Distt. Raipur.Balodabazar, Distt. Raipur.

Present;

Mr. Prakash Tiwari, Advocate.

For the petitioners.

Mr. Arun Sao, 6ovt. AdvocateMr. Pankaj Shrivastava, Advocate For the State of C.6.For respondent No. 3 & 4, OR b ER

(Passed on 19th becember, 2008)

Dhirendra Mishra. J

i.Theabovearebeingdisposedofby thiscommonpetitionspetitionsorder,asinboththecommonoflawispetitionsquestionpetitionsquestioninvolved for adjudication.

z.The petitionersby theinstantpetitionhaveimpugned thetransferpolicyofShikshaKarmiscontainedinCircularofAnnexureP-1dated27.10.2005issuedbyrespondentNo.lwherebysuperceding earlier guidelines fresh guidelines havebeen issued for transfers of Shiksha Karmis and it has beendecided that the Shiksha Karmis who are transferred on theirown request to another Janpad Panchayat shallbe junior intheir category at the transferred Janpad Panchayat.

3. Brieflystatedfactsinboththearethatthepetitionspetitionspeti'tionerswereappointedasShikshaKarmi(Srade-IIIon30.7.1998and their serviceswe.re regularizedon1.7.2002.Both the petitioners were transferredon their request formutual transfer by Janpad Panchayat Baloda Bazar<& JanpadPanchayatKasdolvide orders dated21.8.2003& 24.12.2003(Annexur-eP-4).Srievanceofthepetitionersisthatthetransfer- policy of Annexure P-1 cannot be made applicable inthe cases of the petitioners as their transfers took place inthe year 2003, whereas, subsequent policy came into force inthe year2005and the same cannotbe given retrospectiveeffect and their seniority is to be considered from the date oftheirinitialappointmentandnot from the datewhen theyjoined in a different Janpad Panchayat after their tr-ansfer onrequest.Further grievance of the petitioners is that as perC.G.CivilServices(Classification,Control& Appeal)Rules,1966 (for short 'Rules, 1966') after completion of 7 years inservice, they are entitled for benefit of promotion.30.7.1998and their serviceswe.re regularizedon1.7.2002.Both the petitioners were transferredon their request formutual transfer by Janpad Panchayat Baloda Bazar<& JanpadPanchayatKasdolvide orders dated21.8.2003& 24.12.2003(Annexur-eP-4).Srievanceofthepetitionersisthatthetransfer- policy of Annexure P-1 cannot be made applicable inthe cases of the petitioners as their transfers took place inthe year 2003, whereas, subsequent policy came into force inthe year2005and the same cannotbe given retrospectiveeffect and their seniority is to be considered from the date oftheirinitialappointmentandnot from the datewhen theyjoined in a different Janpad Panchayat after their tr-ansfer onrequest.Further grievance of the petitioners is that as perC.G.CivilServices(Classification,Control& Appeal)Rules,1966 (for short 'Rules, 1966') after completion of 7 years inservice, they are entitled for benefit of promotion.

4. Learnedcounselforthepetitionersarguedthatthepetitioners were appointed under the M.P. Panchayat ShikshaKarmis (RecruitmentandConditions ofService)Rules,1997(for short 'Rules, 1997') and therefore, their seniority cannotbe affected excepton the grounds mentionedin the Rules,1997.petitioners were appointed under the M.P. Panchayat ShikshaKarmis (RecruitmentandConditions ofService)Rules,1997(for short 'Rules, 1997') and therefore, their seniority cannotbe affected excepton the grounds mentionedin the Rules,1997.

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5. On the other hand, the respondents in their separate returnshavemadeidenticalsubmissionsthatthepetitionersweretransferredfromoneJanpadPanchayattoanotherJanpadPanchayat on their own request.Where a government servantholding a particular post is transferr&d to the same post in thesame cadre, the transfer will not wipe out his length of servicein the post till the date of transfer and the periodof serviceinthebeforehistransferhastobetakenintopostconsideration for the purposes of seniority.However, where agover-nment servantis transferredonhisown request toadifferent cadre in that case such employee has to forego hisseniority till the date of his transfer and he shall be placedatthe bottom below the junior most employee in the new cadre ofthedepartment.Suchemployeecannotbetopermitteddisturb the seniority of the employees in the department towhich he is transferred.

6. Mr.PankajShrivastava,learnedcounsel for therespondentNo.3<&4contendsthatinthecasesincethepresentpetitioners got themselves transferred to a different JanpadPanchayat,theirseniorityinthetransferredJanpadPanchayats shall be reckoned from the date of their joiningand they shall be placed at the bottom below in their category.Reliance is placed on the judgment of Hon'ble Apex Court inthe matter of K.P. Sudhakaran and another Versus State ofKerala and others .No.3<&4contendsthatinthecasesincethepresentpetitioners got themselves transferred to a different JanpadPanchayat,theirseniorityinthetransferredJanpadPanchayats shall be reckoned from the date of their joiningand they shall be placed at the bottom below in their category.Reliance is placed on the judgment of Hon'ble Apex Court inthe matter of K.P. Sudhakaran and another Versus State ofKerala and others .

Mr.Shrivastava,repellingtheargumentsoflearnedcounselforthepetitionersthatserviceconditionofthepetitionersshallbegovernedbytheRules,1997andtheguidelines dated 14.5.2003 (Annexure P-7) issued for transferof Shiksha Karmis and the guidelines of Annexure P-1 dated27.10.2005 cannot be given retrospective effect, it was arguedthatRules,1997doesnotcontainanyspecificprovision ' (2006) 5 SCC 386

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regardingtransferofShikshaKarmifromoneJanpadPanchayat to another Janpad Panchayat. Provisions of the C.6.PanchayatService(RecruitmentandSeneratConditionsof'Rules,Services)Rules,1999(forshort1999')wbuldbeapplicablein the presentcase according to which where anappointmentismadebytheappointingauthorityonanapplication made by any employee of the Panchayat Service,the person so appointed shall receive the junior most rank forthe purposes of seniority in the cadre of post on which he isappointed.SuidelinesofAnnexureP-7onlyaprovidesprocedure to be followed for transfer of a ShikshaKarmi andthe seniority is to be governed by Rule 27 of the Rules, 1999.I have heard learned counsel for the parties.

Theonlyquestionforconsiderationinthesepetitionsiswhether the petitioners, who are appointed as Shiksha Karmi inoneJanpadPanchayat, subsequentlyregularized -inThe saidJanpadPanchayatandafterregularizationtheyweretransferredtoanoth.erJanpadPanchayat,canclaimtheirseniority from the date of theiroriginalappointmentevenafter their transfer to another Janpad Panchayat on their ownrequest.

Document of Annexure P-7 i.e. circular issuedon 14.5.2003,only gives guidelines regarding transfer of Shiksha Karmis andit does not provide for the manner in which the seniority ofShiksaKarmisistobedecided.Rules1997alsodoesnotcontain any provision which deals with the transfer of ShikshaKarmis.Rules 11 provides for general conditions of service andthe same is reproduced herein below:-

11. ©eneral Conditions of Service.- Conditions ofservice other thanmentionedabove, shallbe thesameas applicable to other employees of the Janpad Panchayat or Zila Panchayat, as the case may be."

Rule 27 of Rules, 1997 reads thus;-

27. AppointmentofPanchayatemploy toandhisPanchayat;-Notwithstanding anything contained inthese rules, the appointing authority on applicationmade by any employee of Panchayat Service of otherPanchayat, may appoint such employee to a same orequivalentpostinth6Panchayatserviceonsuchterms and conditions as may be mutually agreed uponbetweenthetwoPanchayats,andsubjecttothefollowing conditions, namely-these rules, the appointing authority on applicationmade by any employee of Panchayat Service of otherPanchayat, may appoint such employee to a same orequivalentpostinth6Panchayatserviceonsuchterms and conditions as may be mutually agreed uponbetweenthetwoPanchayats,andsubjecttothefollowing conditions, namely-

i.Such appointment shall not be made to post to befilled by promotion.filled by promotion.

ii.The person soappointed shall received the juniormost rank, for the purpose of seniority, in thecadre of the post to which he is appointed, as itstands on the date of such appointment."most rank, for the purpose of seniority, in thecadre of the post to which he is appointed, as itstands on the date of such appointment."

Theabovearealsoapplicabletotheserviceprovisionsconditions of Shiksha Karmi (Srade-III by virtue of Rule 11 ofRules, 1997.

10. In view of the above provisions, it is clear that the impugnedcirculardated 27.10.2005 only clarifies the provisionsof Rules27 of Rules, 1999.circulardated 27.10.2005 only clarifies the provisionsof Rules27 of Rules, 1999.

ii. Evenotherwise,itissettledlawthatwhereemployeeistransferred to another department/uniton hisown request,seniority of such employee has to be reckoned only from thedate of his joining duties in thenew department and he has toforego the past service.transferred to another department/uniton hisown request,seniority of such employee has to be reckoned only from thedate of his joining duties in thenew department and he has toforego the past service.

iz. In the matter ofK.P. Sudhakaran<& anotherin Para-11 theHon'ble Supreme Court has held thus:- lHon'ble Supreme Court has held thus:- l

"11. In service jurisprudence, the general rule is that if agovernment servant holding a particular post is transferredto the same post in the same cadre, the transfer will not wipeout his length of service in the post till the date of transferand the period of service in the post before his transfer hasto be taken into consideration in computing the seniority inthe transferred post. But where a government servant is sotransferred on his own request, the transferred employee willhave to forego his seniority till the date of transfer, and willbe placed at the bottom below the junior most employee inthe category in the new cadre or department. This is becausea government servant getting transferred to another unit ordepartmentforhisconsiderations,cannotbepersonalpermitted to disturb the seniority of the employees in thedepartment to which he is transferred, by claiming that hisserviceinthedepartmentfromwhichhehasbeentransferred,shouldbe takenintoaccount.Thisisalsobecause a person appointed to a particular post in a cadre,should know the strength of the cadre and prospects ofpromotion on the basis of the seniority list prepared for thecadre andany addition from outside would disturb suchprospects. The matter is, however, gover-ned by the relevantservice rules."

13. For the aforesaid reasons, the contention of the petitionersthattheTransferpolicyofAnnexureP-1doesnothaveretrospectiveapplicationandthepetitionersserviceconditions are governed by the circular of Annexure P-7 issuedin the year 2003 wherein no specific provision is there that ontransfer of Shiksha Karmi to another Janpad Panchayat, on hisown request, his seniority would be reckoned from the date hejoins at the transferred place is without any substance. ThiscircularofAnnexureP-1dated27.10.2005onlycontains guidelines as to under what circumstances Shiksha.Karmiscanbe transferred and reiterates provisions of Rule 27 of Rules,1999 that such transferred Shiksha Karmis shall be treated asjunior most in the category where they joined after transfer.14. AccordingtotheRule1997,ShikshaKarmi(Srade-IIIisentitled for promotion only if the candidate is graduate andseventeachingexperience.Sincethepossessesyearspetitioners' seniority is to be reckoned from the year 2003,their cases for the promotion can be considered only aftercompletion of seven years of mandatory teaching experience.is. Forthe aforesaidreasons, thereisnosubstancein thesepetitions,thesamedeservetobedismissedandareaccordingly dismissed. No order as to costs.i6Acopy of this order be placed inW.P. No.3276/06- TriptiSharma \/s. State of Chhattisgarh and others.Dhirendra MishraJudge