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Madhya Pradesh High Court · body

2012 DIGILAW 875 (MP)

Rajendra Kumar Shiv v. State of M. P.

2012-09-10

K.K.LAHOTI, VIMLA JAIN

body2012
JUDGMENT : This appeal is directed against an order dated 29.8.2012 in W.P. 13703 of 2012 by which a writ petition preferred by the appellant against the transfer order dated 14.7.2012, transferring the appellant from Gam Panchayat, Kudwa, Janpad Panchayat Kurai, within the same district Seoni, in the same capacity of Panchayat Secretary, was dismissed. 2. This order has been assailed mainly on the ground that the transfer of the appellant was contrary to the transfer policy framed in compliance of sub rule 7 of Rule 6 of Madhya Pradesh Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules 2011. It is also submitted by Shri Agrawal that the policy which was framed in compliance of sub rule-7 of the aforesaid Rules was statutory one and if there was breach of any of the condition of the policy, it amounts to breach of statutory policy and could have been enforced under the law and the learned Single Judge erred in dismissing the writ petition. That the breach which is alleged before this Court is that the transfer orders were affecting more than 10% of the Panchayat Secretaries in the district which was contrary to the policy Annexure P-2. 3. Shri P.K. Kaurav, learned Dy. A.G. supported the order and submitted that the policy of the transfer is by way of instructions and cannot be enforced under the law. He has placed reliance of the judgment of Smt. Shilpi Bose vs. State of Bihar [ AIR 1991 SC 532 ] and Union of India vs. S.L.Abbas [ AIR 1993 SC 2444 ]. 4. Learned counsel appearing for the appellant relied on a judgment of the Apex Court in ICICI Bank Ltd. vs. Official Liquidator of APS Star Industries-Limited and Ors. [ (2010) 10 SCC 1 ] To appreciate the rival contentions of the parties, it would be appropriate if the factual position of the case may be stated. The petitioner was working as the Secretary in Gram Panchayat Kudwa, Janpad Panchayat Kurrai district. Seoni. By order dated 14.7.2012, the Chief Executive Officer, Zila Panchayat, Seoni has transferred him in the same capacity from Gram Panchayat, Kudwa to Gram Panchayat Suktara within the same Janpad Panchayt, Kurai. The petitioner was working as the Secretary in Gram Panchayat Kudwa, Janpad Panchayat Kurrai district. Seoni. By order dated 14.7.2012, the Chief Executive Officer, Zila Panchayat, Seoni has transferred him in the same capacity from Gram Panchayat, Kudwa to Gram Panchayat Suktara within the same Janpad Panchayt, Kurai. For ready reference sub rule 7 Rule 6 of the aforesaid Rules reads thus :- "(7) The Gram Panchayat Secretary may be transferred on administrative ground or on the basis of his application within the district in accordance with the transfer policy issued by the Commissioner Panchayat Raj. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat." The aforesaid Rule specifically provide that the Gram Panchayat Secretary may be transferred on administrative grounds or on the basis of his application within the district in accordance with the transfer policy issued by the Commissioner, Panchayat. In this case, the appellant has been transferred by the Chief Executive Officer who is a competent authority and merely there was some complaints in respect of excess transfers in the district, the appropriate authority could have considered this grievance but on the aforesaid ground the transfer order can not be quashed. Though the aforesaid sub section 7 provides for framing of the policy but it is settled law that the transfer policies are instructions of the Government which cannot be enforced in law. See S.L. Abbas and Shilpi Bose (supra). So far as the judgment relied by the learned counsel for the appellant in ICICI Bank (supra) is concerned, in the aforesaid case the guidelines issued by the Reserve Bank of India in respect of core banking were subject matter before the Apex Court. It was not a case of transfer and the Apex Court considering the peculiar aspects of the case held that the aforesaid instructions may be given affect to but in respect of transfer of an employee, law is well settled by the Apex Court in which it has been held that the policy of the transfer is only instructions and cannot be enforced in a court of law. The transfer order can be assailed where there is some breach of statutory provisions, based on malafide or there is some arbitrariness but in the present case merely on the ground that in the district, transfer orders were affected more than 10% of the employees cannot be a ground to interfere in the transfer order of the appellant. This appeal is without merit and is dismissed at the admission stage. At this stage, learned counsel for the appellant submitted that a representation against the transfer has already been filed before the Collector, Seoni. No other person has joined at the place where the appellant was working. The Collector, Seoni may be directed to decide the representation expeditiously. Shri Kaurav, learned counsel appearing for the State has no objection in issuing directions to the Collector, Seoni to decide the representation expeditiously. In view of the aforesaid, while disposing of this appeal, we direct the Collector, Seoni to decide the representation of the petitioner expeditiously, if already not decided. No order as to costs.