Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 544 (MP)

Kamal Singh v. State of M. P.

2004-07-15

RAJENDRA MENON

body2004
ORDER Rajendra Menon, J. 1. Shri V.S. Chaturvedi, Shri R.P. Singh, Shri Nitin Agarwal, Advocate for the petitioners. Shri K.B. Chaturvedi, Addl. Government Advocate for respondents. W.P. (s) No. 341/03, W.P. (s) 24/03, W.P. (s) 25/03, W.P. (s) 37/03, W.P. (s) 164/03, W.P. (s) 169/03, W.P. (s) 230/03, W.P. (s) 277/03 W.P. (s) 610/03, W.P. (s) 8231/03, W.P. No. 8229/03, W.P. 8207/03, W.P. 8230/03, W.P. 2117/03, W.P. 2121/03, W.P. 2122/03, W.P. 2123/03, W.P. 8336/03, W.P. 2124/03, and W.P. No. 8337/03. In all these petitions as common questions are involved, they are being disposed of by this common order. 2. Petitioners in all these cases are working as Rural Agriculture Extension Officer or Rural Horticulture Extension Officer and feel aggrieved by a common order vide Annexure-P/1 dated 31-7-2003 by which they are transferred from one place to another. The main contention of all these petitioners are that, their seniority is maintained at divisional level and their transfers out of the division would mean loss of seniority adversely affecting their chance of promotion. Inviting my attention to a particular clause in the impugned order Annexure-P/1 dated 31-7-2003, learned counsel for the petitioners submitted that option is being called for and petitioners are being compelled to give up their seniority at the divisional level and it is indicated that they would be placed at lower seniority in the place of transfer. That apart referring to the provision of Recruitment Rules, Schedule 4 and note 3 thereto it is argued that seniority in the cadre is maintained divisionwise and transfer of the petitioners out of the division is not permissible. The main grievance of the petitioners is that on their transfers from one division to another there would be adverse effect on their seniority and finally chances of promotion. Referring to a circular issued by the State Government in this regard vide Annexure-P/4 it was submitted by learned counsel that even in the year 1994 option were called for and as the petitioners opted to remain in the division they cannot now be transferred out of the division contrary to the aforesaid provisions. 3. Respondents have refuted the aforesaid, it the case of the respondents that seniority is maintained at State level. It is also stated by them that post of joint Director at divisional level had been abolished and no seniority is maintained divisionwise. 3. Respondents have refuted the aforesaid, it the case of the respondents that seniority is maintained at State level. It is also stated by them that post of joint Director at divisional level had been abolished and no seniority is maintained divisionwise. It is the case of the respondents that after abolition of the Division Office there is no question of maintaining seniority divisionwise. Respondents refuting the contentions submit that seniority is maintained State wise and no case for interference is made out. Respondents have placed on record a order dated 16-12-2003 passed by the State Administrative Tribunal in T.A. No. 768/2002 to emphasis that under similar circumstances earlier order passed with regard to transfer of such employees out of the division has been upheld by the Tribunal. 4. Having heard learned counsel for the parties and perused the record, I find no substance in these petitions. 5. The main contention of the petitioners are that their seniority is maintained divisionwise and therefore they cannot be transferred out of the division. The argument is per se unsustainable in view of the law laid down by the Division Bench of this Court in the Dhaniram Ahirwar and another vs. State of Madhya Pradesh and another, 1995 MPLJ 545 , in the aforesaid case petitioners who were working in the District Courts were transferred from one district to another, seniority of the employees were maintained districtwise and the argument advanced was that transfer from one district to another would adversely affect their chances of promotion. Considering the aforesaid argument, it has been held by the Division Bench that transfer being a condition of service a employee is liable to transfer from one district to another and on such transfer the employee carries with his seniority in the previous district without any loss for the service rendered in the previous district. In the case of Dhaniram Ahirwar (supra) arguments as were advanced on behalf of the petitioners are indicated in para 3 of the judgment, submission No. (iii) was as under: (iii) The transfers adversely affect their seniority and chances of promotion and are, therefore, invalid. In the case of Dhaniram Ahirwar (supra) arguments as were advanced on behalf of the petitioners are indicated in para 3 of the judgment, submission No. (iii) was as under: (iii) The transfers adversely affect their seniority and chances of promotion and are, therefore, invalid. while considering this submission it has been observed as under by the Division Bench after considering various judgment of the Supreme Court:- Relying on the decision in Paresh Chandra Nanndi vs. Controller of Stores, N.E. Railway, Pandu and others, AIR 1971 SC 3359, this Court held that transfer of a permanent employee and consequent transfer of his lien cannot be challenged when the post to which he is transferred does not carry less pay even if his transfer materially affects his chances of promotion. We are bound to follow decisions of the Supreme Court referred to above which draw the distinction between right to be considered for 'promotion' and 'chances of promotion'. The contention that vacancy on higher post may arise sooner in the parent district and such vacancy may arise only much later in the district to which an employee is transferred, if at all, may affect the employee's chances of promotion but not his right to be considered for promotion, permanent transfer of seniority and transfer of lien. When such is the case, it cannot be said that the transferred employee's right to be considered for promotion is adversely affected. We, therefore, hold that members of staff of establishments of the subordinate Courts in a particular district are liable to be transferred to another district, that the High Court has power to effect such transfer, the transfer does not affect his seniority or right to be considered for promotion and that the transfers cannot be impugned in the manner attempted by the petitioner. Points answered accordingly. (emphasis supplied) 6. Even though in this case if arguments of the petitioners are accepted in view of the enunciation of law as made by the Division Bench in the case of (Dhaniram Ahirwar) it cannot be said that the transfer is illegal. Transfer is a condition of service and mere loss of chances for promotion on such a transfer cannot be a ground for interfering with the transfer order, nothing has been brought on record to show that under the law the employer is debarred from transferring a employee from one division to another division. Transfer is a condition of service and mere loss of chances for promotion on such a transfer cannot be a ground for interfering with the transfer order, nothing has been brought on record to show that under the law the employer is debarred from transferring a employee from one division to another division. The only ground is that seniority is maintained division wise and therefore, employees cannot be transferred. This argument is per se unsustainable. In that view of the above discussion, the only irregularities that can be seen in the present petitions is a stipulation contained in the impugned order dated 31-7-2003 which compels the petitioners to give option with regard to giving up their seniority in the divisional and giving them bottom seniority in the transferred Division. Such a stipulation cannot be enforced. Accordingly stipulation to the said effect contained in the order dated 31-7-2003 cannot be enforced by the respondents. Accordingly, respondents are directed not to enforce the aforesaid stipulation. However, on transfers the petitioners shall carry their seniority to the place of transfer and their names in the transferred place shall be incorporated in the appropriate place in the seniority list. 7. In the case of B. Varda Rao vs. State of Karnataka, AIR 1987 SC 287 it has been held that a government servant is liable to be transferred to a similar post in the same cadre which is a normal factor in Government service and no Government servant can claim to remain in a particular place or in a particular post. There is nothing on record in the present case on the basis of which it can be held that the petitioners hold a non transferable post. 8. A government servant holding a transferable post does not have vested right to remain in one place as held by the Supreme Court in the case of Union of India vs. N.P. Thomas, AIR 1993 SC 1605 . In view of the above the contentions of the petitioners cannot be accepted. 9. Accordingly petitions are dismissed with the direction as indicated hereinabove, without any order as to cost.