Research › Search › Judgment

Madhya Pradesh High Court · body

2022 DIGILAW 1256 (MP)

Uday Singh Thakur v. State of Madhya Pradesh

2022-10-18

VISHAL MISHRA

body2022
JUDGMENT 1. The present petition under Article 226 of the Constitution of India has been filed challenging the validity, legality and propriety of the order dated 05.10.2022 (Annexure P/1) passed by the respondent No.5, whereby the petitioner has been transferred from Gram Panchayat Dhhimroli, Janpad Panchayat Beena, District Sagar to Gram Panchayat Sesaisaji, Janpad Panchayat Banda, District Sagar. 2. The only ground taken by the petitioner is that he was transferred vide order dated 22.12.2021 from Gram Panchayt Besrakasoi, Nawgaon to Gram Panchayat Dhimroli. His name finds at serial no.21 in the aforesaid list and within a period of 9 months he has again been transferred vide impugned order from Gram Panchayat Dhhimroli to Gram Panchayat Sesaisaji, Janpad Panchayt Banda. It is stated that it is a frequent transfer of the petitioner without assigning any reason. It is submitted that a representation (Annexure P/3) has been filed showing personable inconvenience which is pending consideration. An innocuous prayer is made to direct the respondents/authorities to consider and decide the pending representation expeditiously. 3. Per contra, counsel appearing for the State has opposed the prayer and submitted that the petitioner's transfer is on administrative grounds and as the transfer is a service condition; therefore, the petitioner is duty bound to comply with the transfer order. Virtually, no ground has been raised except the personal inconvenience which would be caused to the petitioner. As per settled legal proposition of law, the transfer order can be interfered only in exception circumstances as has been held by Hon'ble Supreme Court in large number of cases. 4. Heard learned counsel for the parties and perused the record. The Supreme Court in the case of State of U.P. vs. Gobardhan Lal, reported in (2004) 11 SCC 402 has held as under : "7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.' 5. The Hon'ble Supreme Court in the case of Union of India and Ors v. S.L. Abbas reported in AIR 1993 SC 2444 , has held as under:- "An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.' 6. The Supreme Court in the matter of Shilpi Bose vs. State of Bihar reported in 1991 Supp. (2) SCC 659 considering the scope of interference in a petition challenging the order of transfer has held as under: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should no t interfere with the order instead affected party should approach the higher authorities in the department ' 7. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should no t interfere with the order instead affected party should approach the higher authorities in the department ' 7. In case of violation of any of the terms of transfer policy, the Division Bench of this Court in the case of R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329 has considered held that interference in the transfer matter can only be made only if am employee has shown that the transfer order is an outcome of malafide exercise or is in violation of statutory provisions prohibiting such a transfer order or transfer of an employee has changed the service condition, only in such circumstances, the transfer should be interfered. 8. The aforesaid aspect was considered by Hon'ble Supreme Court in the case of National Hydroelectric Power Corporation Ltd. vs. Shri Bhagawan reported in (2001) 8 SCC 574 , in the case of Union of India and others vs. Janardhan Debanath and another (2004) 4 SCC 243, in the case of State of U.P. and others vs. Gobardhan Lal reported in (2004) 11 SCC 402 . It is entirely for the employer when, where and at what point of time a public servant is transferred from his present posting and where the work is required to be taken from him. If the transfer order is being passed on administrative grounds, the Court cannot go into the question of relative hardship. It is only the for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and effective administration. The Hon'ble Supreme Court has gone to the extent that even if there is clause of the policy issued by the government regarding posting of husband and wife at the same place, the same cannot be cannot be countenanced since an employee holding a transferable post has no vested right to remain at a particular place. It is for the authorities to consider and decide the same. The same analogy was considered by a three-Judges Bench in the case of Bank of India vs. Jagjit Singh Mehta, (1992)1 SCC 306 . 9. It is for the authorities to consider and decide the same. The same analogy was considered by a three-Judges Bench in the case of Bank of India vs. Jagjit Singh Mehta, (1992)1 SCC 306 . 9. The Division Bench of this Court in the case of R.S. Chaudhary and Others v. State of M.P. and Others, 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.' 10. With respect to decision on the representation, a Division Bench has again considered the issue in the case of Mridul Kumar Sharma Vs. State of M.P. and others reported in ILR (2015) MP 255 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 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.' 11. The learned counsel for the petitioner could not point out the fact that whether the petitioner has been relieved or not. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.' 11. The learned counsel for the petitioner could not point out the fact that whether the petitioner has been relieved or not. Therefore, the question of grant of interim relief to the petitioner does not arise and only relief which can be extended to the petitioner is to direct the respondents/authorities to decide the pending representation of the petitioner as per the settled legal proposition of law rendered in R.S.Chaudhary (supra) A Mridul Kumar Sharma (supra). 12. Considering the overall facts and circumstances of the case and the order passed by the Division Bench in the aforesaid cases, this Court deems it appropriate to dispose of the writ petition directing the petitioner to file a certified copy of this order along with copy of representation before the respondent no.4, who in turn, is directed to dwell upon the same and pass a self contained speaking order and communicate the outcome to the petitioner within a period of 30 days from the date of receipt of this order. 13. Needless to mention that this Court has not expressed any opinion on the merits of the case. Accordingly, the petition is disposed off. Certified copy as per rules.