Hori Lal Sahu v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No.4922 of 2016 Hori Lal Sahu S/o Shri Dhelu Ram Sahu, Aged About 46 Years Working As Asst. Teacher Panchayat At Primary School Joratarai, Block Bagbahara, District Mahasamund (Chhattisgarh) ---- Petitioner

Versus

1. State Of Chhattisgarh Through The Department Of Panchayat And Rural Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur (Chhattisgarh)

2. Chief Executive Officer, District Panchayat, Mahasamund, Through Its Chief Executive Officer District Panchayat, Mahasamund, District Mahasamund (Chhattisgarh)

3. Chief Executive Officer, Janpad Panchayat Mahasamund, Block Mahasamund, District Mahasamund (Chhattisgarh) ---- Respondents For Petitioner :

Mr. Vinod Deshmukh, Advocate For Respondent-State :

Mr. Bhaskar Payashi, Panel Lawyer Hon'ble Shri Manindra Mohan Shrivastava, J.

Order on Board 20/09/2016 1.

Heard on admission.

2.

Learned counsel for the petitioner submits that the petitioner is entitled to be considered for promotion even though the petitioner has been transferred from one Janpad Panchayat to other Janpad Panchayat. According to learned counsel for the petitioner, upon transfer from one Panchayat to other, in case where transfer has been affected on own request, it might result in loss of seniority, but for the purpose of considering eligibility for promotion, the total length of services rendered in earlier Panchayat has to be counted. He submits

that this aspect has been decided by the Division Bench of this Court in Writ Appeal No.475 of 2015 (Smt. Reeta Singh Vs. State of Chhattisgarh & Ors. ) and analogues appeal vide order dated 29.10.2015. 3.

The order passed by the Division Bench in the aforesaid case, holds thus:- "5. We have considered the submissions on behalf of theparties. Rule 27 of the Chhattisgarh Teacher (Panchayat) Cadre (Recruitment and Conditions of Service) Rules 2012 provides for request transfer in which event, loss of seniority only would follow at the transferred place of posting. The Learned Single Judge has correctly observed that loss of seniority due to request transfer and the eligibility to be considered for promotion by taking into account the earlier period of service before transfer were two separate issues and the latter had to be taken into consideration for determining eligibility to be considered for promotion as distinct from seniority.

6. Considering a similar issue with regard to calculation of the time period for grant of time bound promotion in a case relating to transfer upon request, it was observed in (1999) 2 Supreme Court Cases 119 (Dwijen Chandra Sarkar v. Union of India) as follows: "17. On the facts of the present case and especially in view of the aforesaid decisions, we are of the view that when the transfer is in public interest and not on request, the two employees transferred cannot be in a worse position than those in the above rulings who have been transferred on request and who in those cases accepted that their names could appear at the bottom of the seniority list. Even in cases relating to request transfers, this Court has held, as seen above, that the past service will count for eligibility for certain purposes though it may not count for seniority.

18. Hence the transfer order and circular concerned of 1983 which required that the past service should not count for seniority, cannot have any bearing on eligibility for timebound promotion. Seniority and time bound promotions are different concepts, as stated above.

19. For the above reasons, we hold that the past service of the appellants is to be counted for the limited purpose of eligibility - for computing the number of years of qualifying service, to enable them to claim the higher grade under the Scheme of Time bound Promotions." 4.

The legal issue stands adjudicated by the Division Bench. It only requires application in the case of petitioner on its own facts. Therefore, in these

circumstances, instead of keeping the matter pending, it would be appropriate to direct respondent No.2 to consider petitioner's representation with regard to her eligibility for being considered for promotion keeping in view the legal position adumbrated by the Division Bench in case of Smt. Reeta Singh (supra) and take decision on its own merit in accordance with law. 5.

With the aforesaid observation, the petition stands finally disposed off. Sd/- (Manindra Mohan Shrivastava) Judge Tiwari