Vijay Kumar Markhandey v. State Of Chhattisgarh

-1NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 5691 of 2016 Vijay Kumar Markhandey, S/o Shri Shyamratan Markhandey, aged about 35 years, working as Assistant Teacher (Panchayat), Govt. Primary School Bagbuduwa, Block Pathariya, District Mungeli. ---- Petitioner

Versus

1. State Of Chhattisgarh Through The Secretary, Department Of Panchayat, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur Chhattisgarh

2. Chief Executive Officer, Jila Panchayat, Mungeli, District Mungeli Chhattisgarh.

3. Chief Executive Officer, Janpad Panchayat, Mungeli, District Mungeli (CG).

4. Block Education Officer, Mungeli, District Mungeli (CG).

5. District Education Officer, Mungeli, District Mungeli (CG). ---- Respondents For Petitioner :

Shri Ajay Shrivastava, Advocate For State :

Shri Prasun Bhaduri, G.A.

S.B.:

Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 18/10/2016 Heard.

1. 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

-2considering 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.

2. The order passed by the Division Bench in the aforesaid case, holds thus:- "5. We have considered the submissions on behalf of the parties. 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 Sarkarv. 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

-3past 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."

3. 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.

4. It is made clear that this Court has not expressed any opinion on the merits of the case and the respondent authority may decide the representation on its own merits.

5. With the aforesaid observation, the petition stands finally disposed off. Sd/- - (Sanjay K. Agrawal) Judge L/-