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2021 DIGILAW 141 (MP)

Mohammad Raza v. State of Madhya Pradesh

2021-02-10

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the parties, the matter is heard through Video Conferencing. Challenging is being made to the transfer order dated 02.02.2021 passed by the respondent No. 2 whereby petitioner is being transferred from Government Girls' Higher Secondary School, Unao, District Datia to Government Middle School, Mitloni, Shivpuri, reflecting the transfer to be an administrative grounds. 1. It is submitted that the petitioner was initially appointed as Samvida Shala Shikshak Grade-III vide order dated 10.08.2006 and was subsequently absorbed in Adhyapak Samvarg as Assistant Teacher on 09.09.2010 with effect from 14.11.2009. He was promoted to post of Teacher in Mathematics on 21.01.2016 and since then the petitioner is rendering his services as a Middle School Teacher in Government Girls' Higher Secondary School, Unnav, District Datia. The petitioner has also appointed as District Treasurer of Shikshak Congress in District Executive of M.P. in the year 2020. It is alleged that the transfer of the petitioner is at the fag end of the session when examinations are to be held that too during this Covid pandemic-19. There are directions from the Govt. not to transfer the employees during the Covid scenario. It is argued that the petitioner is rendering his services in Government Girls' Higher Secondary School, Unnav, District Datia and teaching Classes from IX and X and by the impugned order he has been directed to be transferred and posted as a Middle School Teacher for teaching of students of Class VI, VII and VIII. It is submitted that the transfer of the petitioner is shown to be on administrative ground, despite of the fact that there is no administrative exigencies owing to this Covid-19 pandemic, as the middle schools are not physically operating. It is argued that the transfer is also against Clause 2.1 of the Transfer Policy which provides for surplus teachers to be transferred when vacant posts are available. It is argued that the transfer Policy is also violative of Clause 2.4 and 8.1 of the Transfer Policy whereby no prior approval from the concerned Minister was taken during the ban period and also as a protection is granted to the petitioner being a member of the Congress Committee. 2. It is argued that the transfer Policy is also violative of Clause 2.4 and 8.1 of the Transfer Policy whereby no prior approval from the concerned Minister was taken during the ban period and also as a protection is granted to the petitioner being a member of the Congress Committee. 2. Another ground raised by the petitioner is that the entire family members of the petitioner are being harassed due to political reasons as every member who is doing a Government job is subjected to transfer. He has pointed out that the transfer of one of the family member as Annexure P/7. In such circumstances, the transfer of the petitioner is bad in law and outcome of malafides. He has prayed for quashment of the same. 3. Per contra, counsel for the State has opposed the contentions raised by the counsel for the petitioner and has argued that the transfer being a condition of service and every Government employee is required to comply with the transfer orders as and when required. Transfer of the petitioner is clearly on administrative grounds. It is the domine of the Government to post an employee at the relevant place as and when required. The ground raised by the petitioner that the transfer is at the fag end of the sessions and the examinations are to be conducted is no ground to challenge a transfer order as the Government has found the petitioner's requirement at the transferred place of posting. As far as challenge being made to the Transfer Policy is concerned, the law is settled on the aforesaid issued in the case of R.S. Chaudhary Vs. State of M.P. I.L.R. (2007) M.P. 1329, whereby the Division Bench of this Court has clarified each and every aspects pertaining to the transfer of Government employees in violation of transfer policies and has directed that the only remedy that can be available to the petitioner is to file a detailed representation to the authorities and they will decide the same in accordance with law. 4. He has further relied upon the judgment rendered by Division Bench of this Court at Jabalpur in Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R. (2015) MP 2556, wherein the representation is directed to be decided when the petitioner has complied with the transfer order. 4. He has further relied upon the judgment rendered by Division Bench of this Court at Jabalpur in Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R. (2015) MP 2556, wherein the representation is directed to be decided when the petitioner has complied with the transfer order. It is argued that in case a representation is submitted by the petitioner, the same will be considered and decided expeditiously. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record, it is seen that the transfer of the petitioner is made from Government Girls' Higher Secondary School, Unao, District Datia to Government Middle School, Mitloni, Shivpuri, on administrative ground. Petitioner was continuously working in the previous place of posting since long and he has been subjected to transfer. Law with respect to transfer being made out on administrative grounds and being in violation of the Clauses of transfer policies are concerned it is par settled in the case of R.S. Chaudhary (supra) wherein the Division Bench is 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". The petitioner has already submitted a detailed representation vide Annexure P/8 dt. 03.02.2021 and the said representation is said to be pending consideration. 7. In such circumstances, placing reliance upon the judgment of wherein the Hon'ble Division Bench of this Court in Mridul Kumar Sharma (Supra), 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. 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 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". In such circumstances, the representation can be decided expeditiously subject to compliance being made by the petitioner in terms of Mridul Kumar (supra). 8. Considering the overall facts and circumstances of the case and also the fact that the transfer is a condition of service and the employee working as a Government servant is required to comply with the transfer orders coupled with the fact that the law is settled as held in the aforesaid cases, this Court deems it appropriate to dispose of the petition with a direction to the petitioner to submit a detailed representation to the respondents-authorities within a period of seven working days from today and in turn the authorities are directed to consider and decide the representation within a period of 30 days from the receipt of certified copy of this order. Needless to say that this Court has not commented upon the merits of the case. The authorities are free to decide the representation on its own notions. With the aforesaid observations, this petition stands disposed of.