Ravikant Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 297 MP

                           W.P. No.15911/2020 & connected cases

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HIGH COURT OF MADHYA PRADESH, PRINCIPAL
           SEAT AT JABALPUR


Case Number &             W.P. No.15911/2020
Parties Name
                             Rabikant Tiwari
                                   Vs.
                         State of M.P. and others


                           W.P. No.7416/2020

                        Smt. Sulochana Ahirwar
                                  Vs.
                        State of M.P. and others


                           W.P. No.7444/2020

                          Govind Prasad Raidas
                                   Vs.
                         State of M.P. and others


                          W.P. No.10301/2020

                        Mohammed Imdad Ansari
                                   Vs.
                         State of M.P. and others


                          W.P. No.10318/2020

                           Rituraj Chourasiya
                                   Vs.
                         State of M.P. and others


                          W.P. No.10633/2020

                          Pankaj Babu Agrawal
                                   Vs.
                         State of M.P. and others
                                  W.P. No.15911/2020 & connected cases

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                                W.P. No.10714/2020

                                  Rajkumar Tripathi
                                         Vs.
                               State of M.P. and others

                                W.P. No.16040/2020

                                Vijay Bahadur Singh
                                         Vs.
                               State of M.P. and others

                                W.P. No.16433/2020

                                   Sudheer Sharma
                                         Vs.
                               State of M.P. and others

                                W.P. No.17415/2020

                                     Vikas Shukla
                                         Vs.
                               State of M.P. and others

Date of Judgment        27/02/2021
Bench Constituted       Single Bench:
                        Justice Prakash Shrivastava

Whether approved for    No
reporting
Name of counsels for    Shri Satya Prakash Mishra, Shri
parties                 Vikas Mahawar, Shri Sandeep
                        Singh Baghel and Ms. Sonali
                        Paroche, Advocates for the
                        petitioners.

                        Shri Ajay Pratap Singh, Deputy
                        Advocate General with Shri
                        Piyush           Dharmadhikari,
                        Government Advocate for the
                        respondent-State.
Law laid down                                -
Significant paragraph                        -
numbers
                                     W.P. No.15911/2020 & connected cases

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                        O R D E R

27.02.2021

Shri Satya Prakash Mishra, Shri Vikas Mahawar, Shri Sandeep Singh Baghel and Ms. Sonali Paroche, Advocates for the petitioners.

Shri Ajay Pratap Singh, Deputy Advocate General with Shri Piyush Dharmadhikari, Government Advocate for the respondent-State.

Heard finally with consent.

This order will govern the disposal of W.P. No.15911/2020, W.P. No.7416/2020, W.P. No.7444/2020, W.P. No.10301/202, W.P. No.10318/2020, W.P. No.10633/ 2020, W.P. No.10714/2020, W.P. No.16040/2020, W.P. No.16433/2020, W.P. No.17415/2020, as it is jointly submitted by the learned counsel for the parties that all these petitions involve common question.

2. For convenience, facts have been taken from WP No.15911/2020. By this petition, the petitioner has challenged the transfer order dated 07.03.2020 whereby the petitioner who is working as Contract Mobiliser (Samooh Prerak) has been transferred from Block Deosar, Singrauli to Block Khilchipur, District Rajgarh. The petitioner is also aggrieved with the order dated 21.09.2020 whereby the petitioner's representation against the impugned order of transfer has been rejected.

3. Learned counsel appearing for the petitioner submits that the petitioner is a contract employee and in terms of Clause 9.1 of the policy dated 24.02.2020, he cannot be W.P. No.15911/2020 & connected cases

transferred. He further submits that the petitioner's services are non-transferable and in support of his submission he placed reliance upon the judgment of this Court in the case of Ashok Tiwari vs. M.P. Text Book Corporation and another reported in 2010 (2) MPLJ 662 and in the case of Smt. Vandana Dandotiya vs. State of M.P. and others reported in 2013 SCC OnLine MP 5090. He has further submitted that in identical petition WP No.16811/2020 (Purshottam Suryavanshi vs. State of MP and others), interim order has been passed on 01.12.2020.

4. Opposing the prayer, learned counsel for the respondents has submitted that the service of the petitioner is transferable on account of the administrative exigencies. The petitioner has already been relieved but he has not complied with the order of transfer and identical petition has been dismissed.

5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that though the appointment of the petitioner is on contract basis but the appointment order dated 01.09.2015 itself contains the following conditions:

15- vkidh inLFkkiuk iz'kklfud vk/kkj ij fe'ku ds ftyksa esa [email protected] djus dk vf/kdkj jkT; vkthfodk [email protected],uvkj,y,e dks gksxkA

The policy circular dated 24.02.2020 has been placed on record and the said circular contained provision in respect of the transfer:

W.P. No.15911/2020 & connected cases

9-1 lafonk veys dh fu;qfDr LFkku fo'ks"k ,oa dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk izko/kku ugha gSA izk'kklfud O;oLFkkvksa dks ns[krs gq, fo'ks"k ifjfLFkfr;ksa esa LFkkukarj.k fd;k tk ldsxkA lafonk vuqca/k lekIr dj LFkku ifjorZu djrs gq, leku dk;Z o ifjofrZr LFkku gsrq uohu vuqca/k fd;s tkus dh LohÑfr nh tk ldrh gSA uohu vuqca/k dh vof/k dk;Z ij mifLFkfr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd gh gksxhA

The above clause has been considered by the Co-ordinate Bench of this Court in WP No.1027/2021 vide order dated 05.02.2021 in the case of Shabana Begum vs. State of M.P. and others and it has been held that the said clause permits transfer. The view taken by the Co-ordinate Bench in the matter of Shabana Begum(supra) after noting clause 9.1 of the policy reads as under:

"The impugned order has been issued under Clause 9.1 of the circular. From plain reading of Clause 3.3 of the circular, it is clear that in case of change of place, a fresh agreement shall be executed at the changed place.

Clause 9.1 is in two parts. The first part of this Clause provides that the contractual employee shall be appointed for a particular place and for discharging particular duties and there is no provision for transfer. However, the second part of this clause provides that in view of administrative exigencies, under special circumstances a contractual employee can be transferred and in that situation after changing the place of posting, permission for execution of new agreement at the changed place can be granted and the tenure of the contractual employee at the changed place would be from the date of his posting till 31st March of the financial year. Thus, it is clear that there is no absolute bar to the effect that a contractual employee appointed for a particular place cannot be shifted/transferred under any W.P. No.15911/2020 & connected cases

circumstances. The only requirement is that since the agreement is always executed for a particular place, then in case of shifting/transfer, a fresh agreement is required to be executed. Since the employees are working on contract basis, therefore, execution of new contract would not in any manner effect their any right or seniority. Under these circumstances, this Court is unable to accept the contention of counsel for the petitioner that the post, which the petitioner is holding, is a non-transferable post and under no circumstances, she cannot be transferred from Katni."

In the above judgment, considering the same issue of transfer in respect of similarly situated persons, the Co-

ordinate Bench has already taken the view that transfer is permissible. The respondents have also placed on record Human Resource Manual which also contains the provision in Clause 3.5 stating that all fixed tenure staff would be transferable as per the need of SRLM. Another Co-ordinate Bench of this Court in the matter of Maithali Saran Trivedi vs. State of M.P. vide order dated 16.06.2020 dismissing the Writ Petition No.7779/2020 against transfer order by similarly situated employees, has held as under:

"Shri Sharma, learned Deputy Advocate General appearing for the respondents/State submits that the policy issued by the State Government dated 24.02.2020 (Annexure-P/3) contained a specific provision for transfer under Clause-9 of the said policy and accordingly, the petitioner has rightly been transferred. He further submits that the order passed by the coordinate Bench in aforesaid writ petition on which the petitioner is relying upon, is not helpful for the petitioner because the Court has not considered the relevant policy dated 24.02.2020, but considered the earlier policy dated 01.12.2015 which provides the post of contract employee is a non-transferable post.

W.P. No.15911/2020 & connected cases

Considering the above, I am of the opinion that taking note of the provisions of policy dated 24.02.2020 (Annexure-P/3), the petitioner can be transferred from one place to another and as such, the order impugned also contained the respective provision of transfer. The coordinate Bench admittedly has not been apprised about the existing transfer policy and, therefore, the order has been passed in view of the provisions of policy dated 01.12.2015, the petitioner, therefore, is not entitled to get any benefit of the order passed by the coordinate Bench and principle of parity is also not applicable in the present facts and circumstances of the case."

6. Learned counsel appearing for the petitioner has placed reliance upon the interim order passed in WP No.16811/2020 but the said writ petition has subsequently been dismissed by the Co-ordinate Bench by order dated 21.12.2020 by holding as under:

"In the present case, the petitioner failed to demonstrate any such illegality in the order on the basis of which interference can be made that too exercising the jurisdiction of Article 226 of the Constitution of India. As per the settled principle of law the employer is the best judge to consider as to where and how services of its employees can be utilized and after raising grievance before the employer, impugned order has been passed rejecting the request made by the petitioner. Therefore, in such circumstance judicial review in a matter of transfer is not permissible and accordingly as such I do not find any substance in the petition."

7. It is the settled position in law that the services of a contract employee are governed by the terms of the contract. In the present case, the appointment order of the petitioner itself contains a clause relating to transfer and in addition thereto the policy also provides for transfer, hence, in terms thereof, the respondents have right to transfer the petitioner. The impugned order of transfer is a general order of transfer whereby several such employees W.P. No.15911/2020 & connected cases

have been transferred to different places on account of the administrative exigency.

8. In the reply, the respondents have demonstrated that the posts are lying vacant at transferred place. The petitioner has placed reliance upon the Full Bench judgment of this Court in the case of Ashok Tiwari(supra) but in that case also it has been held that transfer is permissible if conditions of service and the contract of service contemplates a provision for transfer from one place to another, hence, the petitioner is not entitled to the benefit of the said judgment. Learned counsel for the petitioner has also placed reliance upon the judgment in the matter of Vandana Dandotiya(supra) but in that case the terms of appointment were different.

9. The record further reflects that the petitioner has already been relieved but he has not joined at the transferred place though there was no interim protection in the matter. Hence, the conduct of the petitioner also disentitles him for any relief in exercise of the equitable jurisdiction under Article 226 of the Constitution.

10. The impugned order of transfer has not been shown to have been passed in violation of any statutory provision nor any malafide has been alleged or established. The respondents have duly considered the petitioner's representation against the impugned order of transfer and have rejected it by a reasoned order. The Supreme Court in the matter of Shilpi Bose vs. State of Bihar reported in 1991 Supp. (2) SCC 659 considering the scope of W.P. No.15911/2020 & connected cases

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 not interfere with the order instead affected party should approach the higher authorities in the department......"

11. In view of the above, I am of the opinion that no case for interference in the impugned order of transfer is made out. The petitions are accordingly dismissed.

12. The signed order be placed in the record of WP No.15911/2020 and a copy thereof be placed in the record of connected writ petitions.

(Prakash Shrivastava) Judge YS Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2021.02.27 17:01:33 +05'30'