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Madhya Pradesh High Court · body

2009 DIGILAW 1316 (MP)

Rajesh Kumar Shakya v. State of M. P.

2009-11-27

SHANTANU KEMKAR

body2009
ORDER Shantanu Kemkar, J. 1. It has been stated by learned counsel for the parties that pleadings are complete. With consent heard finally. Petitioner is working on the post of Chief Executive Officer in the Panchayat and Rural Development Department of the Government of Madhya Pradesh. He has been transferred from Barwaha to Mhow vide order dated 28-10-2009 (Annexure P-1) and the second respondent a Block Development Officer has been posted at his place as In-charge Chief Executive Officer. Aggrieved the petitioner has filed this petition. 2. The case of the petitioner is that he has been subjected to frequent transfers inasmuch as, firstly, he was transferred at his own request from Badnawar to Sonkatch on 28-2-2009, thereafter he was transferred for the reasons of administrative exigency on 29-8-2009 from Sonkatch to Barwaha which order he duly complied with on 25-9-2009. Again he has been transferred vide impugned order dated 28-10-2009 from Barwaha to Mhow. According to him the impugned transfer order is not bona fide and has been passed to accommodate and bring back the second respondent to Barwaha, who was transferred from Barwaha to Sonkatch very recently vide order dated 29-8-2009 (Annexure P-5) in the capacity of In-charge Chief Executive Officer. 3. The first respondent State Government has filed reply. It has been stated that the petitioner has been transferred on account of administrative exigency and as such no case for interference in the impugned transfer order is made out. According to the first respondent the petitioner has not pointed out any mala fide in his transfer order and as such the petition deserves to be dismissed. 4. The second respondent has filed an application for vacating the stay and has stated that the second respondent had already assumed the charge of the said post on 28-10-2009 much before passing of the interim order by this Court. In support documents Annexure R-1 and R-2 have been filed. 4. The second respondent has filed an application for vacating the stay and has stated that the second respondent had already assumed the charge of the said post on 28-10-2009 much before passing of the interim order by this Court. In support documents Annexure R-1 and R-2 have been filed. Learned Senior counsel for the second respondent has also placed on record the Circular dated 8-9-2009 to contend that if the post of Chief Executive Officer at any Janpad Panchayat falls vacant, the charge of the said post has to be given in the priority firstly to the S.D.O. (Revenue)/Deputy Collector, in his absence to the Development Block Officer of Janpad Panchayat of which the charge is to be given and thirdly in terms of priority to the Chief Executive Officer/Development Block Officer of the nearest Janpad Panchayat and thereon to other officers as mentioned in the said Circular. In the circumstances, according to him the second respondent has rightly been given the charge of the said post. 5. Having heard learned counsel for the parties and after perusal of the documents in my considered view the petitioner has been subjected to the frequent transfers and that the impugned transfer order has been passed to accommodate the second respondent who has been given charge of the said post by bringing him back from Sonkatch. From the documents on record it is revealed that on 28-2-2009 the petitioner was transferred from Badnawar to Sonkatch at his own request. Thereafter, before completion of normal tenure of posting at Sonkatch he was transferred vide order dated 29-8-2009 from Sonkatch to Barwaha on administrative grounds. He complied with the order and joined at Barwaha on 25-9-2009. Immediately, thereafter vide impugned order dated 28-10-2009 (Annexure P-1) he has been transferred from Barwaha to Mhow on administrative exigency. True it is that first transfer order which was passed on 28-2-2009 was at his own request but still it was a transfer. Thereafter within six months he was transferred from Sonkatch to Barwaha vide order dated 29^8-2009 on account of administrative ground. He complied with the same and joined at Barwaha on 25-9-2009. Immediately thereafter the impugned transfer order has been issued on 28-10-2009 again showing it to be for administrative exigency. Thereafter within six months he was transferred from Sonkatch to Barwaha vide order dated 29^8-2009 on account of administrative ground. He complied with the same and joined at Barwaha on 25-9-2009. Immediately thereafter the impugned transfer order has been issued on 28-10-2009 again showing it to be for administrative exigency. What was the administrative exigency which arose within such short period for transferring the petitioner again from Barwaha to Mhow has not been explained by the respondent No. 1. On the other hand it is revealed that (though the second respondent who was in-charge Chief Executive Officer was transferred only on 29-8-2009 (Annexure P-5) from Barwaha to Sonkatch, has been brought back as In-charge Chief Executive Officer, at Barwaha in place of the petitioner vide impugned order. No explanation has also been offered as to why it was so needed administratively to call back the second respondent to work as In-charge Chief Executive Officer and to transfer the petitioner who was brought thereon substantive post only two months back that too for administrative exigency. 6. Thus, I am of the view that in order to bring back the second respondent as in-charge Chief Executive Officer at Barwaha the petitioner has been transferred even though he had joined the said place only on 25-9-2009 in pursuance of order dated 29-8-2009. In the circumstances I have no hesitation to hold that the impugned order has been passed to accommodate the second respondent. 7. There can be no dispute to the principle that in public service transfer is an incident of service and in such administrative matters the courts will not interfere unless the transfer order is outcome of mala fide or breach of statutory rule. However if the power to transfer is exercised on extraneous consideration or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of powers. Frequent transfers without sufficient reasons to justify cannot be but is a mala fide when it is found that the transfer is not for professed purpose such as in normal course or in public or administrative interest or in the exigencies of service but to accommodate another person for undisclosed reasons then certainly it would amount to mala fide transfer. 8. 8. In the circumstances, the action of the first respondent in transferring the petitioner and posting back the second respondent at the same place from where he was transferred as In-charge of the said post is held to be mala fide exercise of powers. As a result the impugned order (Annexure P-1) so far as it relates to the petitioner and the second respondent and the consequential orders of joining of the second respondent and relieving of the petitioner are quashed. 9. The petition is allowed. No orders as to cost.