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2023 DIGILAW 669 (MP)

Maniya v. State of M. P.

2023-07-21

SUSHRUT ARVIND DHARMADHIKARI

body2023
ORDER 1. Heard on the question of admission and interim relief. 2. By this petition, under Article 226 of the Constitution of India, challenge has been made to order dated 6.7.2023 (Annexure P/1), passed by the respondent No.3, whereby petitioner, who is a sub-teacher, Primary School, has been transferred from Primary School, Kansangaliya, Block Bhabhra, Khakhrikua, District Alirajpur to Primary School Uparla, Badivegalgaon, Block Sondhwa, District Alirajpur. 3. Learned counsel for the petitioner submits the impugned transfer order is in blatant violation of the transfer policy. It is submitted that the mother of the petitioner is aged about 80 years and the petitioner has to look after her. The son of petitioner is aged about 26 years and is 70% handicapped. The petitioner is at the verge of the retirement and if he is transferred the entire family would suffer. On these grounds, prayer for quashing of the impugned order is made. 4. I n response, learned Government Advocate submits that no interference with the order of transfer is warranted. It is submitted that the transfer policy is only in the nature of guidelines having no statutory force and the impugned order has been purportedly passed in administrative exigency. 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 law that the 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 dt.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. 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 S C C 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. 7. Taking into consideration the fact that the mother of the petitioner is aged about 80 years and son of the petitioner is also handicapped, the petitioner is directed to file a fresh representation before the authorities concerned, within a period of seven days raising all the grounds raised in the present petition alongwith necessary documents. If such a representation is made, the respondents are directed to decide the same as expeditiously as possible, within a period of 15 days thereafter and consider the representation sympathetically and pass a reasoned and speaking order in accordance with law. 8. Till the representation is decided, the petitioner shall be allowed to continue at the present place of posting. 9. With the aforesaid direction, the petition is disposed off.