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Madhya Pradesh High Court · body

2021 DIGILAW 772 (MP)

Arvind Agarwal v. State of M. P.

2021-12-02

S.A.DHARMADHIKARI

body2021
ORDER 1. By this petition, under Article 226 of the Constitution of India, challenge has been made to order dated 31.8.2021 (Annexure P/2) passed by the respondent No.2 so also the order dated 9.11.2021 passed by the respondent No.3 rejecting the representation filed by the petitioner. 2. The petitioner is working on the post of Principal, Govt. High Court, Rampur, District Jabalpur, to the Govt. High School, Kirhai Pipariya, District Katni, on administrative grounds. 3. Learned counsel for the petitioner submitted that the impugned transfer order is in blatant violation of the transfer policy. It is submitted that in spite of directions passed by this Court in W.P.No.20568/2021 to consider the representation of the petitioner; however, without considering the grounds raised in the representation, the same has been rejected vide impugned order dated 9.11.2021. It is further submitted that the petitioner was badly affected by the second wave of Covid-19 and he got positive with Covid-19 for which the petitioner has taken long medical treatment at District Jabalpur. Even the petitioner was vaccinated with Remdesivir injection and he is still facing post Covid effects and is suffering from weakness. The mother of the petitioner is aged about 80 years and there is no-one to look after her. It is further submitted that Clause 24 of the transfer policy dated 24.6.2021 specifically provides that in case an employee is suffering from serious disease then employee concerned can be posted at his choice place. The post of Principal is still lying vacant at Govt. High School, Phootatal, District Jabalpur. The order rejecting representation is a nonspeaking order, therefore, the same as well as the transfer order dated 31.8.2021 is liable to be set aside. 4. In response, learned Government Advocate submits that no interference with the order of transfer is warranted. The petitioner is posted at Jabalpur since last more than four years, therefore, transfer of the petitioner is in accordance with the transfer policy and on administrative grounds. Besides, the transfer policy is only in the nature of guidelines having no statutory force. 5. Having heard learned counsel for the parties, I am of the view that there is substantial force in the submissions advanced by learned Government Advocate. Moreover, it is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. 5. Having heard learned counsel for the parties, I am of the view that there is substantial force in the submissions advanced by learned Government Advocate. Moreover, it is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. The Supreme Court recently in the case of Namrata Verma v. State of U.P. and others by order dated 6.9.2021 passed in SLP (Civil) No.36717/2017 has held that “it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Until and unless the transfer is vitiated by mala fide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. The Supreme Court while dealing with the scope of judicial review in the matter of transfer, held that transfer is an incidence of service and normally should not be interfered with by the Court. If any administrative guidelines recalling transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of his grievance. [See: Union of India and Others v. S.L. Abbas (1993) 4 SCC 357 , State Bank of India v. Anjan Sanyal and others (2001) 5 SCC 508 , Public Services Tribunal Bar Association v. State of U.P. and another (2003) 4 SCC 104 , State of U.P. and Others v. Gobardhan Lal, (2004) 1 SCC 402, R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329, Government of Andhra Pradesh v. G. Venkata 4 WP. No. 4738/2017 (Braj Kishore Paliwal v. State of M.P. and others) Ratnam, (2008) 9 SCC 345 and State of Haryana and Others v. Kashmir Singh and Another, (2010) 13 SCC 306 ]. 6. In the instant case, the petitioner has not been able to make out a case of mala fide or violation of statutory rules, the twin grounds available for interference. The petitioner has no statutory right to remain posted at any particular place. For the aforementioned reasons, the writ petition fails and is hereby dismissed.