Munnalal Divakar vs The State Of Madhya Pradesh
2021 Latest Caselaw 8436 MP

                                   1                              WP-25127-2021
        The High Court Of Madhya Pradesh
                 WP No. 25127 of 2021
          (MUNNALAL DIVAKAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)


Gwalior, Dated : 08-12-2021
      Shri D.P. Singh, learned counsel for the petitioner.

      Shri Vijay Sundaram, learned Panel Lawyer for respondents/State.

With consent of the parties, the matter is finally heard. The present petition has been filed challenging the order dated 21.10.2021 passed by the Respondent No.4, whereby, representation

submitted by the petitioner has been rejected without assigning any reasons.

It is argued that petitioner is working on the post of Panchayat Secretary and he is subjected to frequent transfer. Lastly he was transferred vide order dated 31.08.2021 passed by the respondent No.4 whereby, he has been transferred from Janpad Panchayt Lahar to Janpad Panchayat Raun. The aforesaid order was put to challenge by filing a writ petition before this Court registered as W.P. No.17757/2021 which was decided on 08.09.2021 directing the authorities to consider and decide the representation of the petitioner. It was argued that the petitioner has not been relieved, therefore, he

may be permitted to continue to present place of posting. It was argued that the order of transfer is contrary to the Sub Rule 7 of Rule 6 of M.P. Panchayat Service (Gram Panchayat Secretary Recruitment & Conditions of Service) Rules, 2011 (in short "the Rules, 2011").

It is argued that in pursuance to the order passed by this Court, representation was submitted by the petitioner before the Authorities and the same has been decided, but none of the grounds which have been raised in the representation has been considered and the representation has been rejected by the impugned order which is per se illegal. He has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Kranti Associates Private Limited and Anr. vs. Masood Ahmed Khan and others, reported in (2010) 9 SCC 496 and has argued that the reasons are heart beat of the orders as has been held by the Supreme Court in the 2 WP-25127-2021 aforesaid case and impugned orders do not reflect that there was any consideration or application of mind by the respondents/Authority on the representation as none of the grounds have been taken into consideration. In such circumstances, the petitioner is praying for quashment of the order impugned. It is argued that the legal ground was raised by the petitioner with

respect to violation of Sub-Rule 7 of Rule 6 of the Rules, 2011, but the same has not been properly dealt with by the Authorities, therefore, present petition has been filed.

Per contra, learned counsel for the State has vehemently opposed the arguments made by the petitioner stating that in pursuance to the order passed by this Court, the representation was submitted by the petitioner in light of order passed in earlier writ petition i.e. W.P. No.17757/2021 and the same has been decided giving the reasons regarding Sub-Rule 7 of Rule 6 of the Rules, 2011. It is further observed in the impugned order that the transfer of petitioner is on administrative grounds and after approval of the concerning Minister of the Department. Distance between two places i.e. Lahar to Raun is very small. There was requirement of the petitioner at the transferred place therefore, his transfer was made. No illegality has been committed by the Authorities while passing the impugned orders, therefore, no interference is required in the present case. He has relied upon the judgment passed by this Court in the case of R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329 and in the case of Mridul Kumar Sharma v. State of M.P. and Others reported in ILR (2015) MP 2556 and has argued that despite rejection of representation of the petitioner by the Authorities, he has not joined at his transferred place, thus he is inviting disciplinary action against him in terms of judgment passed by the Division Bench of this Court in the case of Mridul Kumar Sharma (Supra).

Heard learned counsel for the parties and perused the record. From the record it is seen that the petitioner is subjected to transfer vide order dated 31.08.2021 from Janpad Panchayat Lahar to Janpad 3 WP-25127-2021 Panchayat Raun at the short distance. A petition was preferred challenging the aforesaid order which was disposed of by this Court directing the petitioner to file a representation and if he is not relived till date, the authorities may permit him to continue at his present place of posting i.e. Janpad Panchayat Lahar. A specific question was put to petitioner that whether he is relived till date or not. The aforesaid question could not be answered by the petitioner and it was only pointed out that nobody has joined in place of the petitioner till date. The order impugned passed by the Authorities clearly reflects that the order has been passed after taking concurrance of the concerning Magistrate of the Department. The question with respect to transfer of Panchayat Secretary has already decided by this Court in the case of Rakesh

Kumar Urmaliya Vs. State of M.P. and Ors. passed in W.P. No. 15306/2021 decided on 18.08.2021 therefore, the issue is no more res integra.

In such circumstances, no illegality has been committed by the respondents/Authorities in passing of the impugned orders.

The Division Bench of this Court in the case of Mridul Kumar Sharma (Supra) has held as under:-

"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 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."

Transfer being a condition of service and a Government employee is duty bound to comply with the transfer order. Interference in transfer orders can only be made in exceptional cases.

As the petitioner has not complied with the transfer order till date despite rejection of his representation, he is inviting disciplinary action against 4 WP-25127-2021 him in terms of the Mridul Kumar's case. However, this Court refrains from directing the Authorities to take any coercive action against the petitioner and leaves it open for the Authorities.

In the facts and circumstances of the case and considering the judgment passed by the Division Bench in the case of R.S. Choudhary (Supra), no interference in the transfer order can be made. The orders have rightly been passed and the same does not call for any interference in the present petition.

Petition sans merits and is hereby dismissed.

Petitioner is directed to join at the transferred place of posting forthwith.

(VISHAL MISHRA) JUDGE

(LJ*)

LOKENDRA JAIN 2021.12.13 13:10:12 +05'30'