Surya Prakash Dubey vs The State Of Madhya Pradesh
2021 Latest Caselaw 84 MP

Citation : 2021 Latest Caselaw 84 MP
Judgement Date : 23 February, 2021

Madhya Pradesh High Court

Surya Prakash Dubey vs The State Of Madhya Pradesh on 23 February, 2021

Author: Vishal Mishra

                                                                     1
          THE HIGH COURT OF MADHYA PRADESH
                        WP.4355.2021.
       (Surya Prakash Dubey Vs. State of M.P. and Others).

GWALIOR; dated 23/02/2021.

      Shri Prashant Sharma, learned counsel for the petitioner.

      Shri A.K.Nirankari, GA, for the respondents/State.

With the consent of parties, the matter is finally heard.

Present petition has been filed challenging the order dated

17.2.2021 passed by respondent No.1 whereby, the petitioner has been

transferred from Nagar Palika Parsihad, Dabra to Nagar Palika

Parishad, Jhabua district Jhabua.

It is submitted by counsel for the petitioner that the transfer of

the petitioner is contrary to clause 11.13 of the Transfer Policy

whereby, benefit of consideration of spouse claim has not been

extended to the petitioner as his wife is working as a teacher in Govt.

Girls Higher Secondary School Dabra having responsibility of two

daughters. He has also to look after his old and ailing mother of 82

years of age. He submits that a detailed representation has been

submitted by the petitioner to the respondents vide annexure P/5 on

18.2.2021 which is lying pending and has not been decided. He

therefore prayed for quashment of the impugned order.

Per contra, learned counsel for the State has opposed the prayer

made by counsel for the petitioner stating that the transfer is condition

of service. The petitioner is undergoing a government job hence, he

should have complied with the transfer order. The aforesaid transfer

THE HIGH COURT OF MADHYA PRADESH WP.4355.2021.

(Surya Prakash Dubey Vs. State of M.P. and Others).

order has been passed out of administrative exigency. There is no

malafide on the part of respondent authorities in passing the impugned

order. He relied upon the judgment rendered by Division Bench of

this court in the case of R.S.Chaudhary Vs. State of M.P I.L.R

(2007) M.P. 1329 wherein, it has been held that that representation

can only be considered if the petitioner joins the transferred place. On

the basis of the above citation, learned counsel contended that the

representation of the petitioner shall be considered as expeditiously as

possible.

He further relied upon the judgment rendered by Division

Bench of this court in Mridul Kumar Sharma Vs. State of M.P.

Reported in I.L.R (2015) MP 2556, and submitted that the petitioner

has been transferred out of administrative exigency and prayed for

dismissal of the writ petition.

Heard learned counsel for the parties and perused the record.

From perusal of transfer order of the petitioner, it is apparent

that the petitioner has been transferred out of administrative exigency.

A Division Bench of this Court in the case of R.S.Chaudhary

(Supra) 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".

THE HIGH COURT OF MADHYA PRADESH WP.4355.2021.

(Surya Prakash Dubey Vs. State of M.P. and Others).

Relying upon the judgment rendered by Hon'ble Supreme Court in the

case of Gujarat Electricity Board and Another Vs. Atmaram

Sungomal Poshani, reported in (1989) 2 SCC 602, Hon'ble

Division Bench of this Court in Mridul Kumar Sharma Vs. State of

M.P. Reported in I.L.R (2015) MP 2556, 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".

The petitioner has not alleged any malafides or violation of any

terms of condition of the transfer policy. Only ground which has been

taken for challenging the impugned transfer order is of violation of

clause 11.13 and 11.17 of the Transfer policy and he has to look after

his old ailing mother who is 82 years of age. In such circumstances,

only relief which can be given to the petitioner is that the respondent

authorities may be directed to decide the representation submitted by

the petitioner at an early date. Therefore, considering the facts and

circumstances of the case and the law laid down by Hon. Apex Court

THE HIGH COURT OF MADHYA PRADESH WP.4355.2021.

(Surya Prakash Dubey Vs. State of M.P. and Others).

and by Division Bench of this court in the cases referred to herein