Research › Search › Judgment

Madhya Pradesh High Court · body

2022 DIGILAW 1209 (MP)

Ramesh Chandra Vishwakarma v. Union of India

2022-09-28

PRAKASH CHANDRA GUPTA, SUJOY PAUL

body2022
ORDER 1. Shri Anvesh Shrivastava regrets for mentioning wrong Article in the caption of the petition and seeks permission to amend it as "Article 227" in place of "Article 226". 2. Learned Government Advocate for the respondent raised formal objections. 3. The prayer is allowed. 4. Amendment be carried out forthwith. 5. With the consent of the parties, heard finally. 6. The learned senior counsel for the petitioner submits that petitioner by order dated 27.7.2022 is transferred from the post of Conservator of Forest, Katni to working plan, Jabalpur. By taking this Court to the executive instruction dated 5.10.2005 (Annexure P/2), it is submitted that as per clause 3, the officers can be transferred to working plan on the basis of seniority only. At present, various senior officers are available over and above the petitioner and therefore, they should have been first transferred to the 'working plan'. The petitioner approached the Central Administrative Tribunal by filing O.A. No.781 of 2022 and pressed his interim prayer which was declined on the ground that petitioner has already been relieved. 7. Shri Manoj Sharma by placing reliance on the judgment of this Court reported in 2010 SCC Online MP 405 (Sudheer Singh v. State of M.P.) urged that this Court by placing reliance on a Supreme Court order in the case o f (TN Bharadwaj v. State of M.P.) Civil Appeal No.6682 of 2005 opined that the policy of the State Government with regard to exemption from working in a 'working plan' unit is binding on the parties and therefore same can be enforced by issuing the writ of mandamus. 8. Learned counsel for the petitioner also placed reliance on a Division Bench order dated 9.9.2021 passed in M.P. No.2890 of 2021 (Pretheesh Abraham v. Indian Council of Medical Research and Others) and urged that Division Bench interfered with order of Tribunal dated 28.6.2021 whereby Tribunal declined interim relief against transfer order and relieving order. The Division Bench of this Court remitted the matter back by issuing direction to the parties to complete their pleadings and till such time Tribunal decides the OA, the petitioner therein was protected by this Court. 9. Shri Ankit Agrawal Submits that petitioner is seeking protection of said circular which was further amended by circular dated 16.8.2017 (Annexure P/3). This amended circular was withdrawn by the State Government on 5.6.2017. 9. Shri Ankit Agrawal Submits that petitioner is seeking protection of said circular which was further amended by circular dated 16.8.2017 (Annexure P/3). This amended circular was withdrawn by the State Government on 5.6.2017. Therefore, as on date, there exists no circular and therefore question of protection does not arise. 10. He further submits that scope of interference in this petition is very limited. This Court is only obliged to examine whether Tribunal has committed any error which warrants interference in limited jurisdiction under Article 227 of the Constitution. Since no such error exists and Tribunal has exercised its discretion, no interference be made. 11. Faced with this, Shri Manoj Sharma submits that the matter is already listed on 13.10.2022 before the Tribunal. The respondents may complete their pleadings before that and the matter may be directed to be heard by the Tribunal at the earliest and till such time the petitioner may be given protection by restraining the respondent not to take any coercive action against him, if he doesn't join at the place of transfer. 12. No other point is pressed by the learned counsel for the parties. 13. We are not oblivious of the legal position that scope of interference under Article 227 of Constitution is very limited. The tribunal indeed has authority and jurisdiction to decline interim relief. 14. We are not inclined to give any finding on the merits of the case whether the circulars are applicable and are in existence or not because same may adversely affect the adjudication on merits by the Tribunal. 15. We are inclined to give limited directions keeping in view the fact that similar situation arose before this Court in the case of Pretheesh Abraham (Supra). In the said case, the Court opined as under : "By this petition under Article 227 of the Constitution, the petitioner has challenged the order dated 26.8.2021 passed by the Central Administrative Tribunal rejecting the petitioner's prayer for grant of interim relief and has also challenged the transfer order dated 11.8.2021 and relieving order dated 14.8.2021. The petitioner who is working as Nursing Officer had filed the Original Application No.546/2021 before the Central Administrative Tribunal whereby he has been transferred from Bhopal Memorial Hospital and Research Center, Bhopal to National Jalma Institute for Leprosy and other Mycobacterial Diseases, Agra. The petitioner has also challenged the relieving order dated 14.8.2021. The petitioner who is working as Nursing Officer had filed the Original Application No.546/2021 before the Central Administrative Tribunal whereby he has been transferred from Bhopal Memorial Hospital and Research Center, Bhopal to National Jalma Institute for Leprosy and other Mycobacterial Diseases, Agra. The petitioner has also challenged the relieving order dated 14.8.2021. The Central Administrative Tribunal by the impugned order dated 26.8.2021 has rejected the petitioner's prayer for interim relief. Learned counsel for the petitioner submits that the petitioner is not working on a transferable post and is an employee of B.M.H.R.C., therefore, he cannot be transferred out. He submits that the petitioner has not opted for the I.C.M.R. and that he has been transferred malafidely as he had filed the intervention application on behalf of the Union in W.P.(Civil) No.15658/2012. Learned counsel for the respondent has opposed the petition and has submitted that the Trust is already dissolved and the B.M.H.R.C. is transferred to I.C.M.R. and the option was given to the employees and the petitioner had not opted to be in I.C.M.R. He submits that the reply before the Tribunal will be positively filed within ten days. Having heard learned counsel for the parties and on perusal of the record it is noticed that the Tribunal has refused to grant the interim relief taking note of the fact that the administrative control of the B.M.H.R.C. has been transferred to I.C.M.R. and also considering clause VI relating to the option. The issue involved in the matter is in respect of the correctness of the option which has been exercised by the petitioner and the plea of malafides which has been raised by the petitioner. Since counsel for the respondents has assured that the reply will be positively filed in the matter, therefore, the O.A. itself can be considered and decided finally by the Tribunal on the next date which is fixed on 1.10.2021. Needless to say that none of the parties will be granted any unnecessary adjournment by the Tribunal on the next date of hearing and every endeavour will be made by the Tribunal to decide the O.A. finally on the next date. Needless to say that none of the parties will be granted any unnecessary adjournment by the Tribunal on the next date of hearing and every endeavour will be made by the Tribunal to decide the O.A. finally on the next date. Since the Tribunal has already entertained the O.A. and issued notice therein and reply will also be filed by the respondents in the O.A. in a short while, therefore, in the circumstances of the case, we restrain the respondents from taking any coercive action against the petitioner in pursuance to the impugned order of transfer and relieving till the O.A. is decided by the Tribunal. The petition is accordingly disposed of. " 16. Since a Division Bench of this Court in similar situation had interfered and certain directions have been issued, we are inclined to follow the same course, moreso when 13.10.2022 is not very far. 17. Considering the aforesaid, the parties are directed to complete their pleadings before 13.10.2022. We have no doubt that learned Tribunal will make endeavor to decide the matter on merits on 13.10.2022 or any further date as convenient to the learned Tribunal. 18. Till O.A. is decided by the Tribunal, no coercive action shall be taken against the petitioner for not joining the place of transfer. 19. The writ petition is disposed off without expressing any opinion on the merits of the case.