The main legal point established in the judgment is that statutory rules prevail over executive instructions or circulars in determining the service conditions of government employees.

JUDGMENT :

Anand Pathak, J.

1. The instant appeal under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been preferred by the appellant against the order dated 06.01.2021 passed in Writ Petition No. 20116/2020, whereby petition preferred by the petitioner has been dismissed.

2. Precisely stated facts of the case are that the appellant/petitioner was working as Panchayat Secretary at the relevant point of time at Gram Panchayat Takpraroriya, District Guna and by order dated 08.12.2020 passed by the Director, Panchayat Raj Sanchalnalay, Bhopal (herein respondent No. 2), appellant/petitioner has been transferred from Gram Panchayat Takpraroriya District Guna to District Rajgarh and being crestfallen by the same, petitioner filed a petition bearing Writ Petition No. 20116/2020 before this court on the ground that the impugned order has been passed in colourable exercise of power and same is arbitrary and illegal.

3. The learned writ court vide impugned order dated 06.01.2021 rejected the contentions so advanced by the petitioner and dismissed the petition accordingly.

4. It is submitted by the learned counsel for the appellant that after enactment of Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Condition of Service) Rules of 2011, under Rule 6(7), it has been categorically stipulated that Gram Panchayat secretary may be transferred on administrative ground or on the basis of his application within the districts in accordance with transfer policy issued by the Commissioner Panchayat Raj. Since cadre of Gram Panchayat secretary is district-wise and seniority is maintained accordingly, therefore, transfer of present appellant from District Guna to District Rajgarh is contrary to the said statutory rules, therefore, transfer order is illegal.

5. On 18.01.2021, this court asked the Additional Advocate General to seek instructions in respect of grounds of violation of Rule 6(7) of Rules, 2011 and after seeking instructions, learned Additional Advocate General referred the Rules of 2011 as well as circular dated 25.06.2019 issued by the Commissioner Panchayat Raj Directorate. According to him, said circular dated 25.06.2019 stipulates that transfer of Panchayat Secretary can be given effect from one district to another district after ratification of departmental minister concerned. Therefore, as per said policy, appellant can be transferred from one district to another district, therefore, he prayed for dismissal of this appeal.

6. Heard learned counsel for the parties and perused the documents appended thereto.

7. It is the case of appellant that as per Rule 6(7) of Rules, 2011, appellant cannot be transferred out of district. Rules 6(7) and 8 of Rules 2011 is reproduced for ready reference:-

"6. Other service conditions.-

(1) to (6) ....

(7) The Gram Panchayat Secretary may be transferred on administrative ground or on the basis of his application within the district in accordance with the transfer policy issued by the Commissioner Panchayat Raj. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the chief Executive Officer, Janpad Panchayat.

(8) The Chief Executive Officer, Zila Panchayat shall publish the seniority list of Gram Panchayat Secretary working in the district as on 1st of April every year. The consolidated seniority list order shall be issued separately."

8. After perusal of sub-rules 7 and 8 of Rule 6 reveals that Panchayat Secretary is a district level cadre and appointing authority as per Section 3(b) with respect to Gram Panchayat Secretary is Chief Executive Officer, Zila Panchayat and definition of Gram Panchayat Secretary as contained in Section 3(d) stipulates such person appointed by the Chief Executive Officer, Zila Panchayat. This legal position is further reflected in Rule 5 (method of absorption and selection), therefore, appointing authority of Panchayat Secretary is C