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Madhya Pradesh High Court · body

2009 DIGILAW 1119 (MP)

Chandramani Tripathi v. State of M. P.

2009-09-11

K.K.LAHOTI, P.K.JAISWAL

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JUDGMENT : P.K. Jaiswal, J. The appellant, in this writ appeal filed under Section 2 (1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, calling in question the legal propriety of an order dated 17/8/2009 passed by learned Single Judge in Writ Petition No. 7917/2009(8), whereby writ petition has been dismissed on the ground that -transfer will not adversely effect the seniority of the appellant which is maintained in circle-wise. 2. The appellant had filed the writ petition under Article 226/227 of the Constitution of India for quashing the order of transfer dated 6/7/2009 whereby the appellant, an Assistant Grade-III, is transferred from Forest Circle, Seoni to Forest Circle, Chhindwara. The challenge to the order of transfer was made on the ground that if he has been transferred from one circle to another circle then his seniority would be effected because the post of Assistant Grade III is that of District cadre and the seniority is maintained at district level. He also made a representation against the order of transfer which is still pending for consideration and no decision has been taken as yet. 3. By the impugned order, it has been held that the petitioner has been transferred in administrative exigency and in such case the seniority cannot be wiped out. Learned Single Judge after relying the decision of Apex Court in the case of K Madhavan V Union of India, AIR 1987 SC 2291 , has held the apprehension of the appellant, that he would lose his seniority is without foundation. 4. Learned counsel for the appellant drew our attention to para-21 of the judgment of K. Madhavan (supra) and has submitted that transfer from once circle to another circle is not permissible. He also drew our attention to the gradation list maintained at Seoni Circle and gradation list maintained at Chhindwara Circle. The question which is involved in this appeal was considered by the Division Bench of this Court in the case of Dhaniram Ahirwar and another V High Court of Madhya Pradesh and another, 199S MPLJ 545, wherein it has been held that as a general principle, where such transfer is made in exigencies of administrative or in public interest, the transferred employee carries with him his seniority, though when the transfer is made on request, he loses his seniority. The right of an employee to carry with him his seniority on inter-district transfer on administrative exigencies or in public interest is part of his condition of service. Whenever a vacancy on a higher post arises in the district to which he is transferred, he has a right to be considered for promotion depending upon his seniority. 5. The Division Bench has further observed that when an employee is transferred on a permanent post from one district to another, he carries with him his seniority as also the right to be considered for promotion when a suitable vacancy arises in the district to which he is transferred depending on his seniority. The Division Bench in the case of Dhaniram Ahirwar and another (supra) held the following in para-16 which reads are under: "16. In these circumstances, the decision is Suresh Kumar Sharma's case, 1994 MPJR198, has to be regarded as, peri incuriam. 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 petitioners. Points answered accordingly." 6. Learned counsel for the appellant drew our attention to the Division Bench order dated 4/4/2007 passed in Writ Appeal No. 430/2006 (Ram Naresh Mishra Vs. State of M.P. and others) and submitted that in identical circumstances the transfer order has been quashed by the Division Bench. In the Case of Ram Naresh Mishra (supra), the appellant who was working as a Forester, was transferred from Forest Division Shahdol to Forest Division, Khandwa. State of M.P. and others) and submitted that in identical circumstances the transfer order has been quashed by the Division Bench. In the Case of Ram Naresh Mishra (supra), the appellant who was working as a Forester, was transferred from Forest Division Shahdol to Forest Division, Khandwa. The transfer order was challenged on the ground that the seniority of Class-3 employees in maintained as district-wise and transferred from one district to another district would affect the seniority of the appellant. In the said matter respondents had filed their reply and inter-alia, contended that in a case where an employee is transferred from one place to another in administrative exigency, he carries his original seniority. The said decision was taken by the State Government on 10/9/1986 indicating that in case where an employee is transferred in administrative exigency, his original seniority will be protected. In the case of Ram Naresh Mishra (supra) the Division Bench vide order dated 4/4/2007 directed the competent authority to decide the representation of the appellant within a period of two months Bhismat Pandeyvs. Phoola & ORs.129 in accordance with the policy governing transfer from one circle to another circle. Thus, the appellant will not get any help from the order dated 4/4/2007 passed in the case of Ram Naresh Mishra (supra). It appears that learned counsel for the appellant without going through the order passed by the Division Bench in the case of Ram Naresh Mishra (supra), made a statement at bar that question involved in this appeal is squarely covered by the decisions of the said Division Bench. 1. In service jurisprudence, the general rule is that if a government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. 3. Thus, the grievance of the appellant was based on apprehension that his seniority would be affected has no merit. The transfer made in an administrative exigencies or public interest or smooth functioning of the system did not warrant for any interference under Articles 226 and 227 of the Constitution of India. 3. Thus, the grievance of the appellant was based on apprehension that his seniority would be affected has no merit. The transfer made in an administrative exigencies or public interest or smooth functioning of the system did not warrant for any interference under Articles 226 and 227 of the Constitution of India. The scope of judicial review in matters of transfer f a government servant to an equivalent post without any adverse consequence of the service or career prospects is very limited being confined only to the grounds of malafides and violation of any specific provision or statute regulating such transfers amounting to arbitrariness. 9. In the aforesaid circumstances, the impugned order does not warrant for any interference. We are not inclined to interfere with the impugned order dated 17/8/2009 passed in W.P. No. 7917/2009(8). 10. For the aforesaid reasons, we dismiss the appeal, but, in the facts of the case, without any order as to costs.