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2018 DIGILAW 637 (MP)

Prashant Shrivastava v. State of M. P.

2018-07-19

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT : 1. In the instant intra court appeal takes an exception to the interim order dated 11.7.2018 passed by the learned Single Judge in W.P. No.15153/2018 whereby, the operation of the order dated 5.7.2018 transferring the writ petitioner from Agriculture Marketing Board, Regional Office, Jabalpur to the Head Office of the Marketing Board at Bhopal has been stayed. 2. The brief facts of the case are that the respondent No.5 (herein-after referred as ‘writ petitioner’), was transferred from Ujjain to Jabalpur by order dated 21.6.2018. In pursuance to the order dated 21.6.2018, he has submitted his joining on 22.6.2018 on the post of Joint Director, Jabalpur. The case of the petitioner is that within a period of 14 days because of the transfer of the appellant, the writ petitioner has been shifted from Jabalpur to Bhopal. 3. Counsel for the appellant submits that the transfer of the appellant and the writ petitioner is purely on administrative exigency. It is submitted that while posting of the writ petitioner as Secretary, Mandi Board, certain departmental enquiry was initiated against him. By virtue of his posting as Joint Director, M.P. State Agriculture Marketing Board, Jabalpur, the Enquiry Officer/ Presenting Officer will now become subordinate to respondent No.5. It is also submitted by him that as per provisions of Section 40-A of M.P. Krishi Upaj Mandi Adhiniyam, 1972 (for short ‘Adhiniyam, 1972’), the State Government is competent to issue any direction against the Marketing Board and the Marketing Committee and they are bound to follow the same. 4. Counsel for the writ petitioner submits that since the appellant is holding the post of Deputy Collector, whereas, the writ petitioner is an employee of the marketing Board, therefore, the State Government could not have transferred the appellant in the Marketing Board. 5. Heard learned counsel for the parties. 6. In view of the provisions of Section 40-A of the Adhiniyam, 1972 where the State Government has been conferred power in respect of Marketing Board and Mandi Samiti, contention advanced by the counsel for the writ petitioner is not appreciable. The provisions of Section 40-A of the Adhiniyam, 1972 reads as under :- “40-A. Power of State Government to give direction.-(1) The State Government may give directions to the Board and Mandi Committees. The provisions of Section 40-A of the Adhiniyam, 1972 reads as under :- “40-A. Power of State Government to give direction.-(1) The State Government may give directions to the Board and Mandi Committees. (2) The Board and the Mandi Committees shall be bound to comply with directions issued by the State Government under sub-section (1)” 6. Fundamental Rule 110 also confers power to transfer a Government Servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government. The same is reproduced as under :- “F.R.110. Authorities competent to transfer a Government servant to foreign service :-(a) No Government servant may be transferred to foreign service against his will : Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government.” In view of the aforesaid provision also, the appellant could have been transferred to the service of Marketing Board. 7. Since the transfer is an incident of service and the interference in the administrative matters, especially in respect of transfers, the law has been settled that the Courts cannot interfere unless the transfer order suffers from malafide exercise of powers. A Coordinate Bench of this Court in the case of R.S. Chaudhary Vs. State of M.P. & Ors. reported in ILR[2007] MP 1329 after consideration of the judgments passed by the Apex Court has held that transfer policy formulated by the State Government is not enforceable by a Court of law as employee does not have a right of posting at a particular place and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere only in the case of breach of mandatory statutory rules or where the action of the State is capricious, malicious, cavalier and fanciful. The writ petitioner could not show any malice or bias against the authority who has passed the transfer orders. 8. In view of the aforesaid, we do not find any merit in the writ petition itself. The writ petitioner could not show any malice or bias against the authority who has passed the transfer orders. 8. In view of the aforesaid, we do not find any merit in the writ petition itself. The effect of the interim order would be of final nature as the writ petitioner would be required to be allowed to continue on the post where appellant has been posted, therefore, against an interim order, the writ appeal is entertained in view of the law laid down by the Full Bench in the case of Arvind Kumar Jain & Others Vs. State of M.P. & Others – 2007(3) MPLJ 565 . 8. Consequently, the writ appeal is allowed and as a logical corollary, the writ petition stands dismissed.