W.P. No.3326.11
Writ Petition No. 3326 of 2011
14/07/2011
Shri D. K. Tripathi, learned counsel for the
petitioner.
Shri Ashish Shroti, learned Govt. Advocate for
the respondents/State.
Heard.
This petition under Article 226 of the
Constitution of India is directed against the order
dated 11-02-2011 passed by respondent No. 2
whereby, while rejecting the representation
preferred by the petitioner an order dated
27- 07-2009 has been affirmed. By the said order the
petitioner was transferred to a Working Plan Unit,
Chhatarpur.
Facts
briefly are that, the petitioner is a
Forest Range Officer, presently posted at Working
Plan, Chhatarpur. By an order dated 25-02-2009 the
petitioner, who was posted as Ranger Officer,
Devendranagar, Forest Division, Circle, Satna, was
transferred to Working Plan, Circle, Chhindwara.
Subsequently, by order dated 27-07-2009 the said
order of posting was modified and the petitioner
was directed to be posted at Working Plan, Circle,
Chhatarpur.
Petitioner being aggrieved of the said posting,
filed a representation on the ground that earlier,
W.P. No.3326.11
while posting him as Ranger Officer as per the
policy decision of the State Government dated
22- 09-2001 the petitioner was posted at Social
Forestry and has completed more than three years
of posting therein. It was stated in the
representation that subsequently the policy of 2001,
the State Government mooted and circulated the
policy on 16-09-2003 wherein certain exemptions
which were granted to the officers from being
posted to Working Plan, who have already
undergone such posting were withdrawn.
Pertinent it is to note that the policy regarding
posting in Working Plan as was brought into vogue
on 16-09-2003 stipulated :-
“1- dk;Z vk;ks t uk ou e.Myks a es a lh/kh Hkjrh ls
fu;q Dr ou {ks = ikyks a dh inLFkkiuk ojh;rk dz e ls dh
tkos x hA
2- dk;Z vk;ks t uk oue.My es a inLFkkiuk dh vof/k
dk;Z vk;ks t uk dh vof/k vFkok nks o”kZ tks Hkh vf/kd
gks ] jgs x hA
3- dk;Z vk;ks t uk oue.My es a inLFkkiuk ls ds o y
fuEufyf[kr ou {ks = ikyks a dks gh Nw V nh tk;s x h :-
(d) iw o Z dh uhfr ds vUrxZ r vk;q ds vk/kkj ij Nw V
dh ik=rk vftZ r dj pq ds ou{ks = ikyA
([k) iw o Z dh uhfr ds vUrxZ r dk;Z vk;ks t uk es a
inLFkkiuk ls Nw V ds ;ks X ; inks a ij fu/kkZ fjr vof/k rd
dk;Z dj Nw V dh ik=rk vftZ r dj pq ds ou{ks = ikyA
(x) bl uhfr ds iz H kko’khy gks u s ds iw o Z dk;Z vk;ks t uk
oue.My es a dk;Z vk;ks t uk iw . kZ gks u s rd ou{ks = ikyA
(?k) bl uhfr ds iz Hkko’khy gks u s ds ckn dk;Z
vk;ks t uk ouea M y es U;w u re 2 o”kZ vFkok dk;Z
vk;ks t uk vof/k] tks Hkh vf/kd gks ] rd inLFk jgs
W.P. No.3326.11ou{ks = ikyA
(M) mi ou{ks = iky ds in ls inks U ufr Onkjk fu;q Dr
ou{ks = ikyA
4- da f Mdk -3 ds vuq lkj dk;Z vk;ks t uk es a in LFkkiuk
ls Nw V ds ik= ou{ks = iky ls fHkUu ou{ks = iky dk;Z
vk;ks t uk ou e.My es a inLFkkiuk ls Nw V ds fy, ik=
ugha gks a x s A
5- ou{ks i ky dks Nks M dj ‘ks ” k vf/kdkfj;ks a ds fy, iw o Z
funs Z ‘k ;Fkkor iz Hkko’khy ykxw jgs a x s A
6- dk;Z vk;ks t uk oue.My es a inLFkkiuk lkekU;
LFkkukUrj.k dh Js . kh es a ugh a ekuh tkos x hA”
Furthermore, there was an amendment in the
said policy of 2003 vide notification dated
05- 10-2005 whereby exemption clause in the policy
of 16-09-2003 was deleted.
Since the representation preferred by the
petitioner against his posting in Working Plan did
not reap any result, the petitioner approached this
Court vide Writ Petition No. 16256/2010(s). The
said writ petition was disposed of in following terms
:-
“In the light of certain orders
passed by this court in the case of T.
N. Bharadwaj Vs. State of M. P. and
others, W.P. No. 2998/2004 decided on
03-08- 2010, W. P. No. 7121/2010(s)
(Sudheer Singh Vs. State of M. P.) and
W. P. No. 7072/2010 (Ramlal Sharma
Vs. State of M. P.) decided by common
order dated 12-10- 2010, petitioner
contends that now he cannot be
transferred to a Working Plan Unit as
he ha already worked for more than
three years.
W.P. No.3326.11
Keeping in view the aforesaid
grievance of the petitioner, for the
present without entering into the
controversy on the merit, respondent
nos. 1 and 2 are directed to examine
the case of the petitioner in the light
of the cases referred to hereinabove
and decide the same by a speaking
order within a period of one month
from the date of receipt of certified
copy of this order.
Petition stands disposed of with
the aforesaid.”
Respondent in compliance of the said direction
has passed the impugned order dated 11-2-2011
holding that the petitioner will not be entitled for
the benefit of exemption clause as it appeared in
the policy dated 16-09-2003.
Grievance of the petitioner is that, respondents
by misconstruing the decision in T. N. Bharadwaj v.
State of Madhya Pradesh and others (W.P. No.
2998/2004 decided on 03-08-2010) has rejected the
representation of the petitioner.
It is contended that in the said decision it was
held that the decision dated 5-10-2005 (Annexure-P/
5) will not retrospectively take away the right
accrued to a person vide policy dated 16-09-2003 if
such person has undergone posting in the working
plan. Learned counsel for the petitioner while
placing reliance on the judgment in Sudheer Singh
v. State of Madhya Pradesh and others [W. P. No.
W.P. No.3326.11
71212/2010(s)] and Ramlal Sharma v. State of
Madhya Pradesh and others [W.P. No. 7672/2010(s)]
has to submit that in a case of similar nature this
Court has already held that once a right is accrued
to a person, the same cannot be taken away by
subsequent circular. It is urged that ignoring the
aforesaid proposition, the respondent has rejected
the representation of the petitioner and has upheld
an illegal order of posting of the petitioner in
working plan.
The respondents on their turn while not
disputing the fact that petitioner has undergone the
posting in social forestry during the period when
the policy of 2001 was in vogue, have to submit that
the same will not exonerate the petitioner from
further posting in working plan when occasion
arises after issuance of notification dated
5-10-2005. Learned counsel for the respondents
further submits that posting of the petitioner in
Social Forestry Unit for more than 15 years from
1987 to 2003 thus, therefore, does not come to his
rescue as he will not be exempted from being
posting to a working plan.
Considered the rival submissions.
There being no dispute regarding the facts that
the petitioner was posted in Social Forestry Unit
from the year 1987 to 2003 and that by the
W.P. No.3326.11
impugned order he is being posted in a working
plan, Circle, Chhatarpur. The question arises for
consideration is as to whether in view of he fact
that the petitioner has undergone a posting while
the policy dated 16-09-2003 was in vogue, wherein
certain exemption was permissible from being
posted in the working plan, whether the petitioner
would be deprived of the same because of a
subsequent notification dated 5-10-2005 whereby
the exemption clauses in notification dated
16- 09-2003 exonerating the persons who have
undergone posting in working plan from being
posted to such working plan in subsequent years.
In Sudheer Singh (supra) a Bench of this Court
while dwelling upon the aspect of accrual of vested
right under a policy of the State Government was
pleased to observe :-
“10. In the case of T.N. Bharadwaj
(supra), it is held by the Supreme
Court that the policy of the State
Government with regard to exemption
from working in a working plan unit is
binding on the parties and, therefore,
the policies can be enforced by a
mandamus. It is also an admitted
position that both the petitioners have
worked in a working plan unit prior to
5-10- 2005. Once the petitioners have
worked in a working plan unit prior to
5-10- 2005, a right would accrue to
them to seek exemption from further
W.P. No.3326.11posting in a working plan unit by
virtue of the policy that was existing
prior to 5-10-2005. This right which
had accrued to the petitioners could
not be taken away by the respondents
retrospectively by enforcing the policy
dated 5-10-2005. The policy dated
5-10- 2005 would have prospective
effect and cannot take away the right,
which accrued to the petitioners prior
to 5-10- 2005. It is for this reason only
that the State Government granted
benefit to Shri Anoop Parashar and
Shri P. K. Khatri, as is evident from
orders dated 15-1-2008 and 1-8-2009,
available at page numbers 135 and
136, in the records of W.P. No.
7121/2010(s). In fact in the orders
passed on 15- 1-2008 and 1-8-2009, in
the cases of Shri Anoop Parashar and
Shri P. K. Khatri, the State
Government itself has held that the
Policy of 2005 will not have
retrospective effect.”
The said decision in Sudheer Singh (supra) is
subsequently upheld by Division Bench of this Court
in Writ Appeal No. 1320/2010 decided on
05- 01-2011.
Though an effort has been made to distinguish
the judgment relied upon by the petitioner and
more particularly the judgment in Sudheer Singh
(supra) qua Shri Anoop Parashar and Shri P. K.
Khatri on the ground that their cases are not
similar to that of the petitioner. It is urged that
W.P. No.3326.11
said Shri Anoop Parashar was posted in new
working plan vide order dated 28-02- 2004 at Betul
Circle as also Shri P. K. Khatri was posted in a
working plan, Ujjain on 9-11-1999 which later on
was cancelled by order dated 07-07-2000. It is
urged that since the cancellation of order was prior
to coming in force of notification dated 05-10-2005,
the petitioner does not get any benefit from the
orders passed in favour of Shri Anoop Parashar and
Shri P. K. Khatri. It is contended that all the
decisions which have been rendered on the basis of
Shri Anoop Parashar and Shri P. K. Khatri being on
incomplete facts cannot be treated to have binding
effect.
The aspect as has been put into service by
learned counsel for the petitioner was also before
the Division Bench of this Court in State of Madhya
Pradesh and others vs. Suresh Kumar Upadhyaya
[W.A. No. 599/2010 decided on 11-02-2011
(Gwalior)] wherein while dealing with the factual
aspect of Shri Anoop Parashar and Shri P. K. Khatri
and one Radhacharan Sharma it was observed:-
“6. It is true that the respondent
cannot be granted any relief by the
Court on the basis of an illegal or
unwarranted order passed by the
appellants in cases of other similar
situated employees. However, the
question that arises for our
W.P. No.3326.11consideration in this appeal is whether
orders in cases of S/s Anoop Parashar,
P. K. Khatri and Radhacharan Sharma
on which reliance is placed by the
respondent can be said to be illegal or
unwarranted. It is not disputed by Shri
Khedkar, learned Government
Advocate appearing on behalf of the
appellants that orders in cases of S/s
Anoop Parashar, P. K. Khatri and
Radhacharan Sharma, who all three
are forest rangers working in the
Forest Department with the
appellants, were passed subsequent to
coming into force of their policy dated
5-10-2005. Order in case of Anoop
Parashar is dated 15-1-2008 and was
annexed as Annexure P-3 to the writ
petition; in case of Shri Radhacharan
Sharma is dated 29-3-2008 and was
annexed as Annexure P-4 to the writ
petition and order in case of P. K.
Khatri is dated 1-8-2009 and has been
placed before us at the time of hearing
of the appeal. It is suffice to refer to
only one of these three orders as they
all are verbatim the same. Order dated
15- 1-2008 is case of Anoop Parashar
(Annexure P-3 to the writ petition at
page 38 of the appeal paper book) is
extracted below :-
“dz e ka d ,Q 3-125@2004@10-1 iz / kku eq [; ou la j {kd
dk;kZ y ; ds vkns ‘ k dz e ka d @LFkk@l@759 fnuka d
11-12- 2007 ds ljy dz e ka d 5 ij va f dr Jh vuw i
ikjk’kj] ifj{ks = vf/kdkjh cq <s j k lkekU; ';kS i q j lkekU;
ou e.My dh dk;Z vk;ks t uk o` R r cS r w y es a inLFkkiuk
dh xbZ gS A iw o Z uhfr;ks a ds vk/kkj ij ;fn fdlh dks
dk;Z vk;ks t uk djus ds nkf;Ro ls Nw V ns nh xbZ gS rks
muds uke dk;Z vk;ks t uk es a Hkw r y{kh iz Hkko ls iz L rkfor
ugh a gks a x s A Jh ikjk'kj dks dk;Z vk;ks t uk es a Nw V nh tk
W.P. No.3326.11
pq dh gS ] tks tkjh jgs x hA dk;Z vk;ks t uk uhfr o"kZ – 2005
Hkw r y{kh iz Hkko ls ykxw ugh a gks x hA "
7. It is not the case of the appellants
that the above referred orders in the
cases of S/s Anoop Parashar, P. K.
Khatri and Radhacharan Sharma are
illegal or unwarranted orders. There is
no ground taken by the appellants in
the present appeal to allege that these
orders passed by them subsequent to
the policy dated 5/10/2005 are in any
manner unwarranted or illegal. It may
be noticed from the above extracted
order in case of Shri Anoop Parashar
that the appellants themselves have
taken a policy decision that their
policy dated 5-10- 2005 pursuant to
which exemption from posting in the
‘working plan’ was withdrawn shall
apply prospectively and not
retrospectively. Admittedly, in the
present case, the respondent was
already granted exemption from his
posting in the ‘working plan’ prior to
the guidelines issued by the appellants
vide their policy circular dated
5-10-2005 referred above. We are
informed that orders passed by the
appellants in the cases of S/s Anoop
Parashar, P. K. Khatri and
Radhacharan Sharma on 15-1-2008,
29- 3-2008 and 1-8-2009 respectively
have already been implemented by
them. We fail to understand that if the
appellants themselves have taken a
decision, in the cases of S/s Anoop
Parashar, P. K. Khatri and
Radhacharan Sharma to apply their
policy dated 5-10- 2005 prospectively
and not retrospectively, how they can
W.P. No.3326.11
treat the respondent differently. We
are of the considered view that the
appellants are liable to extend the
same and similar treatment which has
been extended by them to S/s Anoop
Parashar, P. K. Khatri and
Radhacharan Sharma who all three are
similarly situated like him. In our
opinion, the judgments of the Hon’ble
Supreme Court in the cases of Gaurav
Ashwin Jain’s case and in Jagjit
Singh’s case (supra) are not at all
applicable to the facts and
circumstances of the present case.
8. In view of the foregoing, we do
not find any merit in the appeal which
fails and is hereby dismissed but with
no order as to costs.”
In view of above proponement of law the
contention put forth by the learned Govt. Advocate
whereby an attempt is made to create a dent in the
decision rendered in Sudheer Singh (supra) loses
force. The respondents thus are not benefitted by
drawing a distinction between the case of the
petitioner and that of Shri Anoop Parashar and Shri
P. K. Khatri.
Having thus considered this Court is of the
view that the authority concerned i.e. respondent
No. 2 is not justified in rejecting the representation
of the petitioner who sought cancellation of his
order of posting to a Working Plan, Circle,
Chhatarpur. Since the petitioner prior to issuance
W.P. No.3326.11
of 05-10-2005 has undergone posting at Social
Forestry Units, he acquired the right for being
considered for exemption as was stipulated in the
circular dated 16-09-2003. The respondents are,
thus, not justified in not exempting the petitioner’s
posting in Working Plan.
Having thus held, the impugned order dated
11- 02-2011 is hereby quashed. The respondents are
directed now to reconsider the case of the
petitioner for his posting at a place other than the
working plan.
The petition is allowed to the extent above.
However, no costs.
(SANJAY YADAV)
JUDGE
SC