D. K. Tiwari v. M. P. State Warehousing and Logistic Corporation
2017-09-01
SUJOY PAUL
body2017
DigiLaw.ai
ORDER 1. In this petition filed under Article 226 of the Constitution challenge is made to the order dated 10.7.2017 whereby the petitioner is transferred from Badamalhera (Chhatarpur) to Chhatarpur. 2. Shri Shriman Shukla, learned counsel for the petitioner contended that the petitioner has less than six months to retire and, therefore, his transfer is bad in law. Reliance is placed on [ (2016)1 MPWN 18 ] (Dr. Shriniwas Mishra v. State of M.P. and others). 3. Prayer is opposed by Shri Aditya Khandekar, learned counsel for the respondents-Corporation. He submits that the transfer policy applicable to State Government is not applicable to the respondents-Department. The petitioner has no enforceable right to remain posted at the same place till his retirement. Reliance is placed on Circular dated 31.5.2017 to contend that the petitioner can be transferred even at the fag end of his career. The petitioner is transferred keeping in mind the fact that the petitioner has served the obligations of Branch Manager for a longtime on the place of current posting and the petitioner will be relieved from outstanding obligations. Once he is transferred to some different posting due to this, no Objection Certificate can be issued to the petitioner well within time so that the petitioner gets his retiral dues without any problem. Shri Khandekar relied on [ (1989)3 SCC 447 ] (Union of India and others v. H.N. Kirtania) wherein it is held as under :- “Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer.” He also placed reliance on the judgment of Supreme Court in Union of India v. S.L. Abbas [ (1993)4 SCC 357 ], wherein it is held as under :- “Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.” 4. In nutshell, Shri Khandekar submits that personal inconvenience etc. cannot be a ground to interfere with the transfer order.
While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.” 4. In nutshell, Shri Khandekar submits that personal inconvenience etc. cannot be a ground to interfere with the transfer order. Lastly, he placed reliance on the order passed by this Court in Writ Petition No.1206/2017 (Madan Kumar Athya v. The State of M.P.). 5. No other point is pressed by the parties. 6. I have heard the parties at length and perused the record. 7. In the opinion of this Court, settled legal principles that the transfer order can be interfered with on limited grounds cannot be doubted. Transfer order can be interfered with if it runs contrary to any statutory provision (not policy guidelines), proved to be mala fide, changes service condition of an employee to his detriment or passed by incompetent authority. No such ingredients is available in the present petition. Personal inconvenience etc. cannot be a ground for interference. 8. In Dr. Shriniwas Mishra (supra), no principle of law is laid down by the Coordinate Bench. This is trite law that a judgment cannot be construed as statute. Blind reliance on a judgment without considering the fact situation is bad. [See (2003)11 SCC 584 ], (Ashwani Kumar Singh v. UPSC and others), [ (2003)2 SCC 111 ] (Bhavnagar University v. Palitana Sugar Mill (P) Ltd.), [ (2007)11 SCC 92 ] (U.P. State Electricity Board v. Pooran Chandra Pandey and others), [2010(I) MPWN 70 (SC)=2010 MPLJ(1) 321] (Bihar School Examination Board v. Suresh Prasad Singh), [ (2011)5 SCC 708 ] (Sushil Suri v. CBI and another), (2015)10 SCC 161 (Indian Performing Rights Society v. Sanjay Dalia and another) and (2016)3 SCC 762 (Vishal N. Kalsaria v. Bank of India)]. 9. It is equally well settled that precedent is what is actually decided by the Court and not what is logically flowing from it. [See AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekhar Misra), (2006)1 SCC 368 (Union of India v. Major Bahadur Singh), (2006)1 SCC 275 (State of Orissa v. Md.
9. It is equally well settled that precedent is what is actually decided by the Court and not what is logically flowing from it. [See AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekhar Misra), (2006)1 SCC 368 (Union of India v. Major Bahadur Singh), (2006)1 SCC 275 (State of Orissa v. Md. Illiyas), (2007)5 SCC 371 (Commissoner of Custom (Port) v. Toyota Kirloskar Motor (P) Ltd.), AIR 1976 SC 1766 (Regional Manager v. Pawan Kumar Dubey), AIR 1987 SC 1073 (Ambica Querry Works v. State of Gujarat), 2000(2) JLJ 84 (FB)=2000(2) MPLJ 491 (Archana Kumar v. Purendu Prakash Mukherjee) and (2003) 3 SCC 485 (Chanchal Goyal (Dr.) v. State of Rajasthan)]. 10. The petitioner is unable to show that any ingredient on which interference can be made against a transfer order is available in the present petition. The petitioner is transferred within district. In absence of any such ingredient, interference is declined. 11. The petition fails and is hereby dismissed. No cost.