B.R.Bankar vs The State Of Madhya Pradesh Tribal ...
2021 Latest Caselaw 8845 MP

                                                                        1                               WP-26962-2021
                                             The High Court Of Madhya Pradesh
                                                      WP No. 26962 of 2021
                                         (B.R.BANKAR Vs THE STATE OF MADHYA PRADESH TRIBAL WELFARE DEPT. AND OTHERS)


                                     Jabalpur, Dated : 15-12-2021
                                           Shri Jitendra Arya, counsel for the petitioner.

                                           Shri Vikram Johri, panel lawyer for the respondents/State.

T h e present petition has been filed challenging the order dated 27.11.2021, passed by the respondent no.3; whereby the representation submitted by the petitioner in pursuance to the directions given by this Court

in Writ Petition No.18193/2021 vide order dated 21.09.2021 has been rejected without assigning any reason.

It is argued that the petitioner has been subjected to transfer vide order dated 31.08.2021 from Government Primary School, Gujarmal, Block Athner, District Betul to Government Primary School, Khaira, Block Bhimpur, District Betul. The aforesaid order was put to challenge by filing Writ Petition No.18193/2021, which was decided on 21.09.2021 directing the authorities to consider and decide the representation of the petitioner and if the petitioner is not relieved he may be permitted to continue at the present place of posting

for a period of six weeks. In pursuance to the same, a representation was submitted by the petitioner along with copy of the order, which have been considered and decided by the impugned order dated 27.11.2021. It is argued that a detailed and exhaustive representation was submitted by the petitioner and all the grounds which have been raised by the petitioner have not been considered by the authorities. The ground with respect to Clause-50 of the Transfer Policy to maintain the student-teacher ratio has not been touched by the authorities. The order impugned has been passed by an incompetent authority because the decision on the representation is taken by the Assistant Commissioner, Tribal Welfare Department but as per Clause-50 of the Transfer Policy in case of any grievances the Principal Secretary of the Department was required to consider and decide the representations with respect to transfer of employees of Class-II, Class-III and Class-IV Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:00:58 IST 2 WP-26962-2021 categories. He has drawn attention of this Court to an order passed by the Coordinate Bench in the case of Writ Petition No.28121/2019 (Smt. Sangeeta Pare Vs. State of M.P. and others), decided along with analogous hearing with other petitions on 27.02.2020; wherein, the petitions were disposed of directing the petitioners to file a fresh comprehensive

representations along with the relevant documents before the competent authority, who in turn was directed to decide the same again by passing a speaking order and an interim protection, which was granted was directed to be continued. He prays for similar relief to be extended to the petitioner.

Per contra, counsel appearing for the State has vehemently opposed the submissions and has contended that the transfer being a condition of service. On earlier occasion the petitioner has already challenged the transfer order by way of filing the writ petition, which was decided by order dated 21.09.2021, in Writ Petition No.18193/2021 and in pursuance to the same the representation submitted by the petitioner was considered and decided vide order dated 27.11.2021. The grounds, which have been raised by the petitioner was considered by the authorities and not found to be satisfactory.

As far as grounds with respect to maintaining the teacher-student ratio, it is on the Government to take care of the same. The petitioner being a Government employee is duty bound to comply with the transfer order. He has placed reliance upon the judgment passed by 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 and in the case of Mridul Kumar Sharma Vs. State of M.P. and others reported in ILR (2015) MP 2556 ; wherein, the Division Bench of this Court has considered all the grounds against the transfer order and has observed that in case of violation of any of the terms and conditions of the Transfer Policy the only remedy available to the petitioner is to get his representation decided at an early date. In Mridul Kumar Sharma (supra) the Division Bench of this Court has further gone to

Signature Not Verified the extent that the representation preferred by the petitioner will be entertained SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:00:58 IST 3 WP-26962-2021 only after petitioner complied with the transfer order. In such circumstances, he has prayed for dismissal of the Writ Petition.

Heard the learned counsels for the parties and perused the record. It being an admitted position that the earlier transfer order was put to challenge by filing a writ Petition being Writ Petition No.18193/2021, which was decided on 21.09.2021 directing the petitioner to prefer a representation and the authorities were in turn directed to decide the representation and if the petitioner was not relieved he be permitted to continue at the present place of posting. The representation submitted by the petitioner was decided by the impugned order dated 27.11.2021. In the representation certain grounds were taken by the petitioner that is the distance of the transferred place, age of the

petitioner i.e. 60 years and that the petitioner is going to be superannuated within two years and ailment. All these grounds have been considered by the authorities and decide by the impugned order. As far as the grounds with respect to the maintaining of teacher-student ratio is considered, the aforesaid is the responsibility of the Government to take care of. The petitioner is only required to challenge the transfer order if it is an outcome of malafides or is in violation of any statutory rules or provisions or in exercise of colourable exercise of powers of the authorities, but none of the grounds could be pointed out by the petitioner. The law with respect to transfer is apparently clear and decided by the Division Bench of this Court in Mridul Kumar Sharma (supra); wherein this Court 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

Signature Not Verified difficulty in proceeding on transfer it is open to him to make representation SAN

to the competent authority for stay, modification, or cancellation of the Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:00:58 IST 4 WP-26962-2021 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".

I n the aforesaid facts and circumstances of the case, as the representation has already been considered and decided by the authorities no relief can be extended to the petitioner. At this stage counsel appearing for the petitioner submits that the petitioner will go and join at the transferred place of posting but the representation be directed to be considered by the competent authority i.e. the Principal Secretary of the Department.

T h e aforesaid contentions are objected by the respondents/State pointing out the fact that at the time of disposal of the writ petition the aforesaid aspect was never argued by the petitioner and the transfer order being passed by the authority i.e. the Assistant Commissioner, who was directed to consider and decide the representation. In such circumstances, no relief can be extended to the petitioner. On going through Clause-50 of the Transfer Policy, it is seen that against the transfer order if any grievance is being raised by filing a representation, the authority being the Principal Secretary of the Department has the responsibility to take care of the representation and considering the undertaking given by the petitioner's counsel that he will go and join at the transferred place of posting, this Court deems it appropriate to dispose of the petition directing the Principal Secretary i.e. respondent no.1 to consider and decide the representation of the petitioner afresh subject to the condition that the petitioner joins at the transferred place of posting.

Accordingly, the petition is disposed of.

Certified copy as per rules.

Signature Not Verified SAN

(VISHAL MISHRA) Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:00:58 IST 5 WP-26962-2021 JUDGE AM

Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:00:58 IST