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Madhya Pradesh High Court · body

2020 DIGILAW 1214 (MP)

Girish Rajoriya v. State of M. P.

2020-11-10

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 filed under Article 226 of the Constitution prays for the following reliefs:- “(i) That, the present petition filed by the petitioner may kindly be allowed. (ii) That, the order dated 18.9.2020 Annexure P/1 passed by the respondent may kindly be directed to be quashed and the respondents may kindly be directed to allow petitioner to continue on the present place of posting i.e. Food Safety Inspector Bhind, District Bhind. (iii) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.” 3. Present petition has been filed by the petitioner being aggrieved by the order dated 18.9.2020 (Annexure P/1), by which the petitioner has been ordered to be transferred from District Bhind to District Anuppur showing the transfer of the petitioner on administrative grounds. As per order dated 5.3.2020 (Annexure P/2) the petitioner was reinstated from suspension and the respondents posted the petitioner from District Sheopur to District Bhind and in compliance of Annexure P/2, the petitioner submitted his joining on 7.3.2020 and till passing of the impugned order Annexure P/1, the petitioner is working on the aforesaid post. Prior to reinstatement vide Annexure P/2 the petitioner submitted the representation before the respondent No.2 vide Annexure P/3 dated 5.2.2020 and requested to the respondent No.2 to reinstate the petitioner and on the ground of serious heart ailment of his father, the petitioner is requested to post him in District Bhind and the request of the petitioner was accepted by the respondent No.2 and on request of the petitioner, the petitioner was posted at Bhind vide Annexure P/2. At present, the father of the petitioner is suffering from serious heart ailment and due to spreading of pandemic Covid-19, the father of the petitioner is in need of more medical attention and therefore, transferring the petitioner at this juncture will affect the serious heart ailment of father of the petitioner as the petitioner is regularly keep check on the health condition of his father. It is submitted that son of the petitioner is also studying in Class V so the impugned order Annexure P/1 passed by the respondent No.2 is in mid-session and the studies of the son of the petitioner is adversely affecting. The order of transfer Annexure P/1 is also contrary to the transfer policy, copy of the transfer policy is annexed hereto as the employee posted at one place at least for minimum period of three years and within a period of six months the petitioner has been transferred which is a frequent transfer amounts malafide transfer as held by the Hon'ble apex Court in the case of B. Vardha Rao v. state of Karnataka, AIR 1986 SC 1955 . 4. Learned counsel for the petitioner has submitted that the respondent No.2 while passing the transfer order of the petitioner has posted the petitioner in District Anuppur which is more than 700 kilometers far from the present place of posting. Therefore, the order of transfer Annexure P/1 is absolutely illegal and contrary to law and therefore, the same is not sustainable in the eyes of law. 5. Per contra, learned Panel Lawyer for the State has opposed the petition stating that it is a normal phenomena that the govt. servant has to undergo transfer as and when required. Vide impugned order, the petitioner has been transferred/posted on administrative ground to place i.e. District Anuppur which is more than 700 K.M. from the present place of posting. It is submitted that the law is well settled in the case of R.S.Chaudhary v. State of M.P. reported in ILR (2007) MP 1329 2007 wherein the Division Bench of this Court has held that the only remedy available to the petitioner is to file a detailed representation to the concerning authorities and the same will be taken care of. It is further argued that the law is well settled as far as the transfer is concerned that the same can be interfered only a limited circumstances. It is further argued that the law is well settled as far as the transfer is concerned that the same can be interfered only a limited circumstances. It is submitted that the representation submitted by the petitioner shall be dealt with expeditiously and will be decided to the earliest. 6. Heard the learned counsel for the parties and perused the record. 7. It is seen from the record that the petitioner has been subjected to transfer within a period of five months on administrative grounds. The fact remains that the transfer is a condition of service and the Govt. employee is required to go on a transfer as and when required as per the administrative exigency. The Division Bench of this Court in the case of R.S.Chaudhary v. State of M.P. and others reported in ILR (2007) MP 1329 has held as under :- "Transfer Policy formulated by State is not enforceable as employee does not have a right and courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines". 8. The Division Bench of this Court in Mridul Kumar Sharma v. State of M.P. Reported in 2015 (III) MPWN 25 = I.L.R (2015) MP 2556, has held as under : "Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident 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. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to 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". 9. The Hon'ble Supreme Court as well as the High Court has considered the factum of interference in transfer matters and the same can be done only in exceptional circumstances i.e. malafides are being alleged or the transfer is in violation of any rules and regulations etc. In the present case, the petitioner could not point out any of the aforesaid grounds to make this Court interfere in the transfer orders. Only the personal inconvenience is being pointed out by the petitioner in the petition, thus and above all in pursuance to the transfer order, the petitioner has already been relieved on 22.9.2020 which is clear from the relieving order of the petitioner. The petitioner has submitted a detailed representation to the respondents-authorities which is said to be pending. In the facts and circumstances of the present case, no interference as far as the transfer order can be made. However, this Court deems it appropriate to disposed of the petition with a direction to the petitioner to resubmit a detailed representation within a period of seven working days to the respondents-authorities who in turn are directed to dwell upon the representation and pass a self contained speaking order redressing the grievances of the petitioner and communicate the outcome to the petitioner within a period of 15 days from the date of receipt of the certified copy along with representation. 10. Needless to say that this Court has not commented upon the merits of the case. 11. The petition stands disposed of. 12. 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. Arun Katare for petitioner; Udit Saxena, Panel Lawyer for respondent/State.