Kirti Rawat vs The State Of Madhya Pradesh
2021 Latest Caselaw 2886 MP

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                HIGH COURT OF MADHYA PRADESH,
                           BENCH AT INDORE
                     WRIT PETITION NO.11148/2021
                  Kirti Rawat w/o Mohan Singh Chauhan
                                     vs.
                           State of M.P & others
01.07.2021: (INDORE):
       Shri R.S.Chhabra, learned counsel for the petitioner.
       Ms.Geetanjali Chaurasia, learned Panel Advocate for the State.
       Heard through video conferencing.
                                 ORDER

Petitioner has filed the present petition being aggrieved by the order dated 23.01.2021 whereby she has been transferred from Indore to Barwani on administrative ground and the order dated 08.06.2021 whereby the competent authority has dismissed her representation.

Facts of the case in short are as under:

2. The petitioner was appointed as Food Safety Officer in the year 2008 and was posted in the district Barwani. Thereafter, in the year 2015 she was transferred from Barwani to Burhanpur in the same capacity. Vide order dated 14.08.2015 she was transferred from Burhanpur to Indore. She joined in the office of Director, Food & Drugs Department, Indore on 02.09.2015 and thereafter now vide impugned order she has been transferred to Barwani which is only 150 km. away from the present place of posting. The petitioner has been transferred after completing more than three years in Indore. The petitioner has submitted a representation to the respondent No.2 seeking cancellation of the transfer on the personal grounds which are as under:

a) that petitioner is residing with her widowed mother (aged around 60 years),

b) her 8th month pregnant sister is posted in district Jhabua,

c) the mother of the petitioner has recently suffered an injury in her elbow and has undergone surgery and is

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undergoing medical treatment from Dr.Asim Negi-Gokuldas Hospita, Indore,

d) the sister is also taking treatment of Dr.Asha Baksi in Motherhood Hospital, Indore and there is no one to take care of them except the petitioner.

3. The petitioner had also filed a writ petition No.2573/2021 before this Court and vide order dated 10.02.2021 the writ petition was disposed of with the direction to the respondent No.2 to decide the representation and till then the petitioner was permitted to continue at the present place of posting and now vide impugned order dated 08.06.2021 the respondent has dismissed the representation but granted one month's time to join at the transferred place looking to her personal difficulties, hence the present petition before this Court.

4. Shri R.S. Chhabra, learned counsel for the petitioner submits that the respondent No.2 has not considered the representation in its true perspective. The petitioner's sister and mother are totally dependent on her. The due date for delivery of her sister is in the month of August 2021, therefore, the respondents could have adjusted the petitioner till the delivery is done . The husband of her sister is posted out of Indore, therefore, the petitioner is the only person in the family fit to look after the mother as well as sister.

5. The petitioner came to Indore on 02.09.2015 and now she has been transferred after a period of 6 years i.e. more than the normal period of three years, therefore, there is no violation of the transfer policy as well as service conditions . The interference by the High Court in a writ petition filed under Article 226 of the Constitution with the transfer matter is permissible only when the order is passed with mala fide intention or there is a violation of any service conditions. None of the said grounds are raised in the writ petition by the petitioner. So far as the personal inconveniences are concerned, the respondent No.2 has already considered and accommodated the petitioner till 08.07.2021. The petitioner's sister is married, and her

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husband is also working in Govt. department who can look after his wife, therefore, no case for interference is made out in this petition.

6. In the matter of Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and others reported in (2004) 12 SCC 299 it has been held that:

"4.Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray vs. State of Orissa. Unless the order of transfer is vitiated by malafide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India vs. S.L. Abbas). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India & Ors. Janardhan Debanath it was observed as follows:

"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. vs. Shri Bhagwan."

In the matter of Major General J.K. Bansal Vs. Union of India and others reported in (2005) 7 SCC 227 the earlier judgments on the scope of interference in the order of transfer have been considered and it has been held that:

8. Before we advert to the submissions made by the learned counsel for the appellant, it will be useful to take notice of the law regarding the scope of interference in a writ petition filed under Article 226 of the Constitution assailing an order of transfer.

9. In Shilpi Bose Vs. State of Bihar the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced

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by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under (SCC p. 661 para 4): -

"4. In our opinion, the courts should not interfere with a transfer order which are 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."

10. In Union of India and others vs. S.L. Abbas the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under: (SCC p.359, para 7) "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the

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public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management."

Having regard to the aforesaid and considering the fact that the impugned order of transfer has not been passed in violation of any statutory provision nor any malaides are established, I am of the opinion that no case for interference in the impugned order of transfer is made out. The writ petition is accordingly dismissed.

7. In view of the above, the petition is dismissed.

(VIVEK RUSIA) JUDGE Digitally signed by HARI KUMAR C G NAIR Date: 2021.07.05 17:52:58 +05'30' hk/