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2017 DIGILAW 1151 (MP)

Gajendra Singh v. State of M. P.

2017-11-10

S.K.AWASTHI, SANJAY YADAV

body2017
ORDER 1. Petitioner takes exception to the order 31.10.2017 passed in Writ Petition No.17782/2017, wherein learned Single Judge taking into consideration that the representation directed to be decided by the Commissioner, Land Records in pursuance to the order dated 30.8.2017 passed in Writ Petition No. 4761/2017, did not consider the precise grievance raised by the petitioner, disposed of the writ petition by impugned order with a direction to the Commissioner, Land Records and Settlement to pass a reasoned order on the representation preferred by the petitioner. 2. The grievance raised by the appellant against the said order is that learned Single Judge ought to have extended the interim protection which was granted to him by order dated 30.8.2017 passed in Writ Petition No.4761/2017 and ought to have held that till the representation is decided, the petitioner/appellant be not transferred from Gwalior to Panna. 3. We note the contention and reject it at the outset in view of the decision by a Division Bench in Writ Appeal No.552/2015 (Mridul Kumar Sharma v. State of M.P.) [ 2015(III) MPWN 25 ], decided on 3.8.2015, wherein it is held:- “2. The argument before us is that the learned Single Judge has committed error in not giving the same benefit as given by the Coordinate Bench (another Single Judge) on the same day. Reliance is placed on the order dated 4.8.2015 passed in Writ Petition No.12705/2015, wherein the Coordinate Bench observed that till the representation of the writ petitioner in that case was decided by the appropriate Authority, the transfer order shall remain stayed. Indeed, that order was passed in spite of rejecting the relief claimed in the said writ petition questioning the transfer order. 3. Notably, both the orders are passed by the Single Bench of this Court and, therefore, cannot be cited as binding precedent in this intra Court appeal before the Division Bench. More so, the legal position is no more res integra. The Supreme Court has consistently observed that the representation filed by the employee does not create any right in his favour to remain at the same place from where he has been transferred, until the representation is decided. The fact that representation is pending will be of no avail to the employee concerned. He must first join at the transferred place, even if he has to pursue remedy of representation. The fact that representation is pending will be of no avail to the employee concerned. He must first join at the transferred place, even if he has to pursue remedy of representation. Whether the concerned employee should be permitted to remain at the same place until his representation is decided, is also the prerogative of the appropriate Authority. It is not for the Court to sit over that subjective satisfaction or dictate to the concerned authority in that behalf, being purely administrative matter. Understood thus, the fact that Coordinate Bench (Single Bench) had given relief to another writ petitioner on the same day cannot be the basis to grant same relief to this appellant. 4. Counsel for the appellant placed reliance on the decision of the Division Bench of this Court dated 15.7.2015 in Writ Appeal No.381/2015. Observations in this decision, however, will be of no avail to the appellant in the face of the decision of the Supreme Court in the case of Gujarat Electricity Board and another v. Atmaram Sungomal Poshani, reported in (1989)2 SCC 602 ], which is directly on the point. In paragraph 4, the Supreme Court observed thus : “4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incidence of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.’ (Emphasis supplied) 5. Be that as it may, in the present case, it is not as if the two writ petitions were kept pending and inconsistent “interim relief” granted therein. In fact, both the writ petitions have been finally disposed of. However, in one case limited protection has been given to the writ petitioner therein by another Bench. In our opinion, in the light of the principle expounded by the Supreme Court, referred to above, the Court must eschew from issuing such direction - as it inevitably results in dictating the concerned Authority in respect of administrative matter within his domain. Accordingly, the decision pressed into service, cannot be treated as a binding precedent on the matter in issue and will be of no avail to the appellant. 6. Accordingly, this appeal is devoid of merit. We, however, make it clear that it is for the appropriate Authority to entertain the representation filed by the appellant and including to consider the request of the appellant to allow him to continue at the same place or otherwise. The appellant must, as per the settled legal position, report to the transferred place and pursue his remedy of representation, particularly when the appropriate authority before whom the representation is pending has so far not favoured the appellant by allowing him to continue at the same place. At best, we may only observe that the appropriate authority must decide the representation expeditiously, preferably within two weeks. 7. Accordingly, the writ appeal is rejected with the above observations. 8. At this stage, counsel for the appellant submits that the appellant be permitted to withdraw this appeal and pursue remedy of representation. Hence, we allow the appellant to withdraw this appeal with the aforesaid observations.” 4. 7. Accordingly, the writ appeal is rejected with the above observations. 8. At this stage, counsel for the appellant submits that the appellant be permitted to withdraw this appeal and pursue remedy of representation. Hence, we allow the appellant to withdraw this appeal with the aforesaid observations.” 4. In view of law laid down in the aforesaid case, we are not inclined to accede to the contention made on behalf of the appellant for grant of interim protection till representation is decided, rather we observe that until the appellant gives joining at the transferred place, the Commissioner Land Records and Settlement is not under obligation to decide the representation, rather he should ensure that the employee has carried out the order of transfer which has not been interfered by the Court. 5. In view whereof, we find no illegality in the impugned order. Consequently, appeal fails and is hereby dismissed. R. K. Soni for appellant.