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2020 DIGILAW 818 (MP)

Vijay Kumar Vaidh v. State of M. P.

2020-08-19

AJAY KUMAR MITTAL, ATUL SREEDHARAN

body2020
ORDER Mittal, C. J. -- 1. In both these writ petitions preferred under Article 226 of the Constitution of India, challenge is to the orders of transfer. In W. P. No. 4357/2018, the petitioner has challenged his transfer orders dated 12.2.2018 (Annexure P-1) and 18.9.2018 (Annexure P-24) whereas in W. P. No. 10676/2020, the petitioner has questioned the legality of the transfer order dated 23.7.2020 (Annexure P-1). 2. As common questions of fact and law are involved in both these petitions, they are taken up for hearing together and are decided by this common order. However, for the sake of convenience, the facts necessary for the just decision of the case are extracted from W. P. No. 10676/2020. 3. The petitioner was appointed as Patwari in the year 1993 and was posted in Patwari Halka No. 115, Tehsil Sagar. The petitioner’s request dated 27.4.2015 (Annexure P-2) for his transfer to District Sagar on the ground of illness of his mother being aged 80 years was accepted on 30.5.2015 vide Annexure P-3 and he was posted from Rahatgarh to District Sagar. In pursuance to an order dated 13.1.2016 issued by the Sub-Divisional Officer (Revenue), Sagar, the petitioner was posted at Patwari Halka No. 19/74, Village Bhapel in Revenue Inspection Division, Naryavali, Tehsil Sagar. Thereafter, the Sub-Divisional Officer, vide order dated 12.2.2018 (Annexure P-6), transferred the petitioner from 19-Bhapel to 142-Semragopalman on the ground of receipt of certain complaints against him. The validity of the said order dated 12.2.2018 (Annexure P-6) has been questioned in W. P. No. 4357/2018. By way of an interim order dated 23.2.2018 (Annexure P-7), the said order of transfer was stayed and the petitioner was allowed to work at his present place of posting. Thereafter, the respondents again passed an order dated 18.9.2018 (Annexure P-24 in W. P. No. 4357/2018) whereby the petitioner was posted at Patwari Halka No.119, Hinotkala, Rajaswa Nirikshak Mandal Surkhi. The petitioner, by filing an application for amendment in W. P. No. 4357/2018, challenged the subsequent transfer order dated 18.9.2018, which was also stayed by this Court vide order dated 5.10.2018. It is asserted that even after interim protection granted by this Court, the respondents, vide order dated 5.7.2019, again transferred him from Sagar to Banda and also relieved him vide order dated 17.7.2019 to join at the transferred place. It is asserted that even after interim protection granted by this Court, the respondents, vide order dated 5.7.2019, again transferred him from Sagar to Banda and also relieved him vide order dated 17.7.2019 to join at the transferred place. The petitioner challenged these orders dated 5.7.2019 and 17.7.2019 by filing a separate writ petition forming subject matter of W. P. No. 14534/2019, which was disposed of with the direction that till the representation of the petitioner is decided, he shall be allowed to work at his present place of posting. Thereafter, the Sub-Divisional Officer, by order dated 3.8.2019 (Annexure P-10), considered his representation and recalled the relieving order dated 17.7.2019. Now, vide impugned order dated 23.7.2020 (Annexure P-1), again the petitioner’s services have been transferred to Halka No.103, Village Bhainsvahi. 4. Learned counsel for the petitioner submitted that the impugned orders have been passed with mala fide intention and the authorities who have actuated the petitioner’s transfer have also been impleaded in the writ petitions as respondents. Inasmuch as a show cause notice was issued to the petitioner by the Sub-Divisional Officer (Revenue), Sagar on 27.10.2017 alleging negligence in duties and thereafter, again a notice was issued on 10.11.2017 alleging that he was absent from his duties. Further, a notice dated 21.11.2017 was issued by the Tehsildar, Sagar referring to a complaint made by an MLA against the petitioner on 27.10.2017 alleging deficiency in service. The petitioner had submitted reply to all the show cause notices, which has infuriated the respondents. Earlier also, against the inaction of the respondents, the petitioner had filed W. P. No. 5729/2014, which was disposed of by directing to decide the representation of the petitioner and since the respondents did not consider the representation, the petitioner had filed contempt petition bearing CONC No. /2014. The petitioner has also filed a writ petition bearing W. P. No. 4046/2017 challenging an order dated 9-12.1.2015 (Annexure P-5) whereby his request for payment of additional salary for holding additional charge of five Patwari Halkas along with Patwari Halka No. 26 (Rahatgarh) was rejected. It is contended that enraged by the reply submitted by the petitioner to the show cause notices, the impugned order of transfer dated 12.2.2018 (Annexure P-6) was passed by the then Sub-Divisional Officer and on account of all these reasons, the respondents are keeping ill-will against the petitioner. It is contended that enraged by the reply submitted by the petitioner to the show cause notices, the impugned order of transfer dated 12.2.2018 (Annexure P-6) was passed by the then Sub-Divisional Officer and on account of all these reasons, the respondents are keeping ill-will against the petitioner. Learned counsel urged that the respondents are so much adamant in transferring the petitioner that in utter disregard to the orders of stay dated 12.2.2018 and 18.9.2018 passed by this Court in W. P. No. 4357/2018, they have again, on 23.7.2020, transferred the petitioner to Halka No. 103, Village Bhainsvahi. On these premises, learned counsel for the petitioner submitted that it is a fit case for quashing the impugned transfer orders and allowing the petitioner to work at his present place of posting. 5. Learned counsel for the respondents-State, by inviting our attention to the return filed in W. P. No. 4357/2018, contended that while the petitioner was posted as Patwari in Bhapel Halka, certain complaints were received against his working and some villagers had also made complaint against him. He further submitted that the petitioner has been transferred within the same district and therefore, no interference is called for on any ground as alleged. 6. We have heard learned counsel for the parties at length and are of the considered view that the petitions deserve to be dismissed. 7. A perusal of the order dated 12.2.2018 (Annexure P-6) shows that this order of transfer of the petitioner was passed as some complaints were received from public representatives and villagers. The subsequent transfer order dated 18.9.2018 (Annexure P-24 in W. P. No. 4357/2018) also reveals that it was passed on receipt of inquiry report from the Tehsildar, Sagar confirming the correctness of the misconduct on the allegation made by a complainant regarding demand of bribe from him. In these circumstances, if the departmental authorities observed that the petitioner had become controversial and his continuance at the said place was not in public interest, no fault can be found with the said orders of transfer. In these circumstances, if the departmental authorities observed that the petitioner had become controversial and his continuance at the said place was not in public interest, no fault can be found with the said orders of transfer. In the wake of these facts coupled with the show cause notices placed on record by the petitioner himself, we do not find that the allegations of mala fide made against the private respondents, i.e., L. N. Khare and Laxmikant Khare who were holding the post of Sub-Divisional Officer and Manvendra Khare and Narendra Babu Yadav who were holding the post of Tehsildar, Sagar at the relevant time, are substantiated. It is also a fact that the incumbent of the post of Sub-Divisional Officer who effected the earlier orders of transfer dated 12.2.2018 and 18.9.2018 have moved and the present order of transfer dated 23.7.2020 (Annexure P-1) has been passed by the subsequent incumbent on that post, namely, Santosh Chandel, on the ground of administrative exigency, which has no nexus with any complaint whatsoever. Except the allegation of issuing show cause notices and filing of writ petitions and contempt petition in certain other service incidence which is said to have enraged the respondents-authorities, no direct or indirect instance of mala fide by the respondents-authorities has been shown by the petitioner, which could be relevant for holding the action of the respondents to be malicious and, thus, it does not warrant any interference against the orders of transfer. 8. Apart from the aforesaid, the subsequent orders of transfer dated 5.7.2019 and relieving dated 17.7.2019 which were challenged in W. P. No. 14534/2019 decided vide order dated 8.8.2019 (Annexure P-8) were also not interfered with by this Court and it was only directed that till representation of the petitioner is decided, he shall be allowed to work at his present place of posting. It is the respondent No. 4, i.e., Santosh Chandel, Sub-Divisional Officer, against whom the petitioner has made allegation of mala fide, considered his representation and taking note of pendency of W. P. No. 4357/2018, withdrawn the subsequent order of transfer. This instance ipso facto shows that even the allegation of mala fide against respondent Santosh Chandel is only in the realm of submission to make out a case of malice which is not substantiated by any direct or indirect incidence leading to his immediate transfer. 9. This instance ipso facto shows that even the allegation of mala fide against respondent Santosh Chandel is only in the realm of submission to make out a case of malice which is not substantiated by any direct or indirect incidence leading to his immediate transfer. 9. As far as the contention of the petitioner with regard to circumventing the stay orders passed in W. P. No. 4357/2018 is concerned, suffice it to say that since the subsequent orders of transfer dated 5.7.2019 and relieving dated 17.7.2019 which were assailed in W. P. No. 14534/2019 on the same ground that they were passed by the respondents defying the stay orders passed in W. P. No. 4357/2018, but the Court did not interfere with the same even on that ground, therefore, it shall not be open for the petitioner to raise question on the validity of the subsequent transfer order dated 23.7.2020 on the same ground that writ petition against the earlier transfer orders dated 12.2.2018 and 18.9.2018 is pending and the stay orders passed therein are still in force. Even otherwise, the orders of stay granted in W. P. No. 4357/2018 have been operative for almost two years and in the meantime, the administrative exigency may have arisen to the respondents and therefore, it cannot be said that the transfer order dated 23.7.2020 is illegal or arbitrary in any manner. 10. It also appears that the petitioner wants to work from home as after seeking on-request transfer, he has challenged his subsequent transfers on one or the other pretext even as those transfers were within the same district. The transfer is an incidence of service and falls within the domain of the employer. An employee has no right to claim posting at a particular place and for an indefinite period. This aspect of the matter has been dealt with by the Supreme Court in the cases of Gujarat Electricity Board and another v. Atmaram Sungomal Poshani [ (1989) 2 SCC 602 ], Union of India and others v. S. L. Abbas [ AIR 1993 SC 2444 ] and State of U. P. and another v. Siya Ram and another [ (2004) 7 SCC 405 ], and the Division Bench judgment of this Court in R. S. Choudhary v. State of M.P. and others [2007 (2) ILR MP Series 1329]. A relevant extract from the judgment of the Supreme Court in Siya Ram’s case (supra) is reproduced as under : “5. The High Court, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan [ (2001) 8 SCC 574 ].” 11. Having given our anxious consideration to the arguments advanced by the learned counsel for the petitioner and the facts and circumstances of the case, we have come to the conclusion that none of the ground of mala fide exercise of powers by the authority or violation of any statutory provision prohibiting transfer on which such orders could be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India, is made out. 12. For the reasons stated hereinabove, we are not inclined to interfere with the impugned orders. The writ petitions are accordingly dismissed. Let a signed order be kept in the file of W. P. No. 10676/2020 and copy whereof be placed in the file of connected writ petition.