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Madhya Pradesh High Court · body

2005 DIGILAW 275 (MP)

Om prakash v. State of M. P.

2005-02-22

RAJENDRA MENON

body2005
ORDER 1. Petitioner has filed this petition being aggrieved by an order, Annexure P-1 dated 21.10.2004 passed by the State Government canceling an earlier order of transfer dated 15.7.2004, Annexure P-2. 2. Petitioner was working as Principal it the Agricultural Extension and Training Centre, Jabalpur, when vide Annexure P-2 dated 15.7.2004, he was transferred and posted as Deputy Director, Agriculture, a Shivpuri and in his place Shri B.D. Sharma, (respondent No. 3) was transferred. It is the case of the petitioner that in pursuance to the aforesaid order of transfer, he came to Shivpuri after relieving from Jabalpur and joined the duties on 22.7.2004. By filing Annexure P-3, certificate of transfer of charge, petitioner contends that the charge was handed over to him by the respondent No.3 on 22.7.2004. Thereafter intimation about taking over the charge by the petitioner was communicated to all the concerned vide Annexure P-4 dated 24.7.2004 and the quarter was allotted to him in which earlier respondent No. 3 was residing vide Annexure P-5 dated 29.7.2004. Petitioner is said to have occupied the quarter on 28.8.2004 vide Annexure P-6. Petitioner had also admitted his child in an institute at Shivpuri on 29.7.2004 and receipt of deposit of fee is filed as Annexure P-7. It is the case of the petitioner that an executed order of transfer was cancelled by the respondents without any reason, and therefore, contending that once the order of transfer has been executed it could not be cancelled, he has before this Court. 3. Considering the aforesaid, this Court issued notices to the respondents on 28.10.2004 and stayed operation of the order Annexure P-1 even though on the said date Shri M.P.S. Raghuvanshi Advocate had appeared on behalf of the respondent No.3 and contended that the respondent No.3 assumed the charge at Shivpuri on 25.10.2004. Be it as it may be the respondents have filed their reply an, it is the case of the State Government that contending the transfer from Shivpuri to Jabalpur to be illegal, the respondent No 3 had earlier filed a petition being WP (S) No. 1456/04 on 22.7.2004. This petition came up for hearing before this Court on 26.7.2004 and this Court refused to intervene in the matter. This petition came up for hearing before this Court on 26.7.2004 and this Court refused to intervene in the matter. However, liberty was granted to the respondent No.3 to represent the matter before the competent authority and it would be for the competent authority to consider the representation of respondent No. 3 and take a suitable decision in the matter. In the meanwhile Transfer Redressal Cell was created by the State Government to examine the cases of transfer as per policy or not and it is the case of the State Government that in pursuance to the representation submitted by the respondent No.3, the Transfer Cell has recommended that transfer of respondent No.3 be cancelled as it is in violation of clause 2.2 of the transfer policy Accordingly, it is stated by the Start Government that transfer of respondent No. 3 made vide Annexure P-2 dated 15.7.2004 has been cancelled on the basis of recommendations of the Transfer Cell created in pursuance to the orders passed in various other petitions, and therefore the petitioner cannot have any grievance. 4. Shri K.N. Gupta, learned senior counsel appearing for the respondent No 3, submitted that as the action is taken or the basis of the recommendations made by the Grievances Redressal Cell created by the State Government and in the absence of any mala fide or statutory violation being established, merely on the ground that an executed order of transfer is being cancelled, interference cannot be made by this Court. 5. Inviting my attention to an order dated 15.3.2002 passed by a Division Bench of this Court in WP No. 398/2002 (Ran Prakash Singh Jadon v. State of M.P. and others), it was submitted by Shri Gupta learned senior counsel, that there is no bar which says that an executed order of transfer cannot be modified or cancelled. It has been held by the Division Bench according to Shri Gupta, in the aforesaid case that even an executed order of transfer can be cancelled and interference can be mad by this Court if the mala fide or arbitrariness are established on such cancellation. 6. It has been held by the Division Bench according to Shri Gupta, in the aforesaid case that even an executed order of transfer can be cancelled and interference can be mad by this Court if the mala fide or arbitrariness are established on such cancellation. 6. Inviting my attention to a judgment rendered by a Bench of this Court in the case of B.K. Dubey v. M.P. State Agro Industries Development Corporation and others [ 1990 JLJ 217 ] Shri Yogesh Chaturvedi, learned counsel appearing for the petitioner argued that order of cancellation of transfer lacks bona fide ant only to accommodate the respondent No.3, therefore, the same can be interfered by this Court. 7. I have heard learned counsel for the parties at length and perused the order. 8. Even though it is a fact that the petitioner had complied with the order of transfer dated 15.7.2004 and joined a Shivpuri but the fact remains that keeping in view the directives issued by this Court in WP (S) No. 1456/04 filed by the respondent No.3, his case was places before the Transfer Cell created by the State Government which had recommended for cancellation of the transfer of the respondent No.3. The State Government, acting in pursuance to the aforesaid recommendations, passed the order, Annexure P-1 dated 21.10.2004 Petitioner has not placed on record any material on the basis of which interference can be made by this Court. It is the case of the petitioner that hardship is being faced by him inasmuch as he was relieved from Jabalpur and joined at Shivpuri and is required to go back to Jabalpur within, short period of seven months. This may be the personal inconvenience and hardship of the petitioner. On such ground, this Court cannot interfere in the matter unless and until it is shown that the order impugned is in violation of any statutory rule or regulation or provision of law. 9. The hardship and persona inconveniences being caused to the petitioner have to be examined by the competent authority of the State Government and even the Division Bend in the case of Ram Prakash Singh Jadon (supra) held that an executed order of transfer can also be cancelled. That being so, it cannot be said that cancellation of an executed order in the present case can be termed as an illegal action. That being so, it cannot be said that cancellation of an executed order in the present case can be termed as an illegal action. It may be taker note of that in the case of Gujarat Electricity Board v. Sungomal Poshani [ AIR 1989 SC 1433 ], the Supreme Court observed that when an order of transfer is passed, the employee should first comply with the order of transfer, and thereafter represent the matter and seek modification or cancellation of the transfer order. In view of the law laid down by the Supreme Court, it cannot be said that cancellation of an order of transfer on consideration of a representation is illegal. That being so, the action taken by the State Government by passing the impugned order on due consideration of the representation of the respondent No. 3 cannot be termed as illegal merely because it amounts to canceling an executed order of transfer. 10. Accordingly, as no ground on the basis of which judicial review can be made is made out in the present petition, I am no inclined to interfere in the matter However, liberty is granted to the petitioner to seek his posting in Shivpuri or any other place nearby to the said place so that hardship and inconveniences an not caused to him and it would be for the State Government to consider the aforesaid aspect of the matter and take a decision with regard to the posting of the petitioner. 11. So far as the impugned order of cancellation of transfer of petitioner is concerned, finding no ground to interfere writ petition and MWP No. 1485/04 stand disposed of with the aforesaid observation.