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Madhya Pradesh High Court · body

2020 DIGILAW 1039 (MP)

Ashwini Kumar Sood v. State of M. P.

2020-10-07

VISHAL MISHRA

body2020
ORDER 1. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/physical distancing in letter and spirit. 2. The present petition is being filed challenging the transfer order dated 25.9.2020 whereby the petitioner has been transferred from Gwalior to Jabalpur. It is submitted that the petitioner was appointed on the post of District Commandant, Home Guard after facing selection process of M.P.P.S.C. and he joined his services on 9.11.2001. In the year of 2014, he was posted as District Commandant, Home Guard, Gwalior on 1.9.2014 and in 2017, he was transferred to Rajgarh. It is argued that the wife of the petitioner is also in govt. job and is working as Deputy Registrar, Cooperative Societies at Morena and considering the policy of the Govt. that the husband and wife if they are in govt. job normally should be placed at one place or at the nearby place. Therefore, on the request made by the petitioner, he was transferred to Gwalior from Rajgarh vide order dated 11.3.2020 and in compliance of the same, he joined on 16.3.2020. It is argued that immediately thereafter the order impugned has been passed within a short span of six months whereby the petitioner has been directed to be transferred to Jabalpur. It is submitted that the daughter of the petitioner is studying in Class XII and is prosecuting the study and preparing for IPMAT Management and the son is studying in Class V in Gwalior. The petitioner's wife is working at Morena and there is nobody except the petitioner to take care of the children. Therefore, transferring the petitioner given the mid-session of the students is also not permissible. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case B.Varadha Rao v. State of Karnataka, AIR 1986 SC 1955 with respect to mid-term transfer wherein the Hon'ble Supreme Court has held that normally the mid-term transfer should not be made. It is submitted that on the request made by the petitioner, he was transferred in the month of March. It is submitted that on the request made by the petitioner, he was transferred in the month of March. He has further relied upon the judgment in the case of Rajesh Kumar v. State of M.P. passed by the Coordinate Bench, Bench at Indore in W.P.No.12994/2019 decided on 17.10.2019 where considering the judgment passed by the Hon'ble Supreme Court in the case of Kendriya Vidhyalaya Sangathan v. Damodar Prasad Pandey reported in 2004 (12) SCC 299 and the other judgment passed by the Supreme Court in the case of State of M.P. v. S.K.Dubey, reported in (2012) 4 SCC 578 wherein it has been considered and held that executive powers of a State extends to matters with respect to which the legislature of the State has power to make laws. Article 162 of the Constitution gives State Executive coextensive powers with that of the State Legislature, therefore, the transfer policy framed by the State Govt. cannot simply be washed away treating it to be not binding on the State Govt. It is submitted that in pursuance to the specific clause in the Transfer Policy whereby the husband and wife both being govt. servants are directed to be placed at nearby places. The petitioner's case was considered and he was posted. Thus, the impugned order is violative of clause of the Transfer Policy as well as the mid-term transfer effecting the studies of children, therefore, he has prayed for quashment of the impugned order. It is submitted that the petitioner is still working, therefore, he may be permitted to work. He has already filed a detailed representation to the respondentsauthorities but of no consequence. 3. Per contra, counsel for the State has opposed the arguments and has submitted that the petitioner's transfer is on condition of service and the petitioner who is a Government employee is duty bound to comply with the transfer orders. However, only justification which is given to transferring the petitioner within six months at administrative exigency. The respondents fairly submits that the representation submitted by the petitioner will be considered and dealt with expeditiously. 4. Taking into consideration the overall facts and circumstances of the case and also the fact that the petitioner was recently transferred in the month of March on its own request and was posted at Gwalior. The respondents fairly submits that the representation submitted by the petitioner will be considered and dealt with expeditiously. 4. Taking into consideration the overall facts and circumstances of the case and also the fact that the petitioner was recently transferred in the month of March on its own request and was posted at Gwalior. The children of the petitioner are pursuing the study in Class XII and Class V respectively and the transfer is during mid-session and admittedly the wife of the petitioner is a government servant and is working in Morena. The Hon'ble Supreme Court in the case of State of M.P. v. S. K. Dubey reported in (2012) 4 SCC 578 has held as under :- 30. The moot question that falls for determination in this appeal is: whether in the absence of any express rule in the State Rules, was it open to the State Government of Madhya Pradesh to have provided by way of an executive Order dated 5.4.2002 that the service rendered by the respondent as President of the State Commission would be counted as pensionable service? The incidental question is: whether such order is inconsistent with section 16 (2) or the State Rules? 31. Subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the legislature of the State has power to make laws. This is what is provided in Article 162 of the Constitution. In other words, the executive power of the State executive is coextensive with that of the State Legislature. 32. In Sant Ram Sharma [ AIR 1967 SC 1910 ] this Court negated the arguments advanced on behalf of the appellant therein that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the rules already framed. The Court stated: (AIR p. 1914, para 7). “7. … It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” The above legal position has been followed and reiterated by this Court time and again. 33. 33. The Constitution Bench of this Court in Lalit Mohan Deb [ (1973) 3 SCC 862 : 1973 SCC (L&S) 272] said: (SCC p. 867, para 9) “9. It is true that there are no statutory rules regulating the selection of assistants to the selection grade. But the absence of such rules is no bar to the administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject.” In Union of India v. Central Electrical & Mechanical Engg. Service, (CE&MES) Group ‘A’ (Direct Recruits) Assn., CPWD [ (2008) 1 SCC 354 : (2008) 1 SCC (L&S) 173], this Court held that the executive instructions could fill in gaps not covered by the rules but such instructions cannot be in derogation of the statutory rules. 5. The Hon'ble Coordinate Bench of Indore in the case of Rajesh Kumar (supra) has considered the similar analogy and has passed the order dated 17.10.2019, thus, considering the aforesaid orders and dictum of the Hon'ble Supreme Court, this Court deems it appropriate to direct the petitioner to submit a detailed representation to the respondents-authorities within a period of seven working days from today along with all the relevant documents and the copies of the orders passed by the Hon'ble Supreme Court as well as the this Court and in turn, the respondents-authorities are directed to dwell upon the representation and decide the same and pass a self contained speaking order considering the grievances of the petitioner and communicate the outcome to the petitioner within a period of one month from the date of receipt of the certified copy of this order. Till the decision of the representation, the petitioner is permitted to work at present place of posting as District Commandant, Home Guard, Gwalior M.P. 6. The petition is disposed of with the aforesaid observations. 7. It is made clear that this Court has not made any comments upon merits of the case. 8. E- copy of this order be provided to the petitioner and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.