Madhya Pradesh High Court

Rakesh Dagor vs The State Of Madhya Pradesh on 5 July, 2021

Author: Vishal Mishra

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          THE HIGH COURT OF MADHYA PRADESH
                        W.P.No.8442/2021
             (Rakesh Dagor Vs. State of M.P. and others)

Gwalior, Dated:-5.7.2021
      Heard through Video Conferencing.

      Shri Raj Shrivastava, learned counsel for the petitioner.

      Shri Sanjay Kumar Sharma, learned Govt. Advocate for the

respondents/State.

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

(1) Challenge is being made to the order dated 23.3.2021 passed

by the Commissioner, Directorate, Ayush Department, Satpuda

Bhawan, Bhopal, whereby the representation of the petitioner

submitted for cancellation of his transfer order dated 15.2.2021, in

pursuance to the order dated 4.3.2021 passed in W.P.No.5190/2021

was considered and rejected by the Commissioner, Directorate

Aayush.

(2) It is submitted that the petitioner was working as Ayurvedic

Compounder and was posted at Gopalpura District Shivpuri. He was

transferred on 15th February, 2021 to Government Ayurvedic

Dispensary Kumbhakedi, District Jhabua, which was put to challenge

by him by filing the W.P.No.5190/2021. The same was disposed of

with the following observations:

"By this petition, under Article 226/227 of the Constitution of India, challenge has been made to order dated 15/02/2021 (Annexure P/1), whereby the petitioner who is a Compounder, has been

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

transferred from Government Ayurvedic Dispensary, Gopalpur District- Shivpuri to Government Ayurvedic Dispensary, Kumbhakhedi, District- Jhabua, on administrative grounds.

Learned counsel for the petitioner submits that the impugned order of transfer is in blatant violation of the transfer policy; clauses 11.4, 11.9, 11.10 and 11.17 whereof prescribe that an employee shall not be transferred within three years of his posting. Earlier the petitioner was transferred from Government Ayurvedic Dispensary, Kamlaganj District- Shivpuri to Government Ayurvedic Dispensary, Gopalpur District-

Shivpuri vide order dated 28/12/2020 and within next two months, he has been again transferred from Government Ayurvedic Dispensary, Gopalpur District- Shivpuri to Government Ayurvedic Dispensary, Kumbhakhedi, District- Jhabua vide Annexure P/1. As such, the same comes within the category of "frequen transfers". Per contra, learned Government Advocate for the State submits that no interference is warranted with the order of transfer as the same has been passed in administrative exigency and the policy is merely in the nature of guideline having no statutory force.

Having heard learned counsel for the parties, in the interest of justice, petitioner is directed to file

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

a fresh representation before the competent Authority canvassing the grounds as marshalled in this petition along with all relevant documents together with certified copy of this order within seven days of its receipt. If such a representation is filed, the Authority concerned shall decide the same by a self contained speaking order, in accordance with law, as expeditiously as possible preferably within a period of four weeks from the date of receiving such representation.

Till the representation is decided, the petitioner shall be allowed to continue at the present place of posting, if already not relieved.

It is made clear that this Court has not expressed any opinion on the merits of the case.

With the aforesaid, the petition stands disposed of."

(3) It is argued that in pursuance to the directions given by this

Court and till the decision on the representation interim relief was

granted to the petitioner. Thereafter the authorities have considered

and rejected the representation of the petitioner by impugned order.

The transfer of the petitioner is made against the petitioner with

respect to sexual harassment of a woman employee working in the

department. The aforesaid complaint was dealt with by the

committee and the committee has passed an order Annexure P/5 and

has found that no such incident regarding sexual harassment is being

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

done by the petitioner. However, it was observed that the behaviour

of the petitioner was not good with other co-employees. In pursuance

to the same he was punished by imposing penalty of stoppage of two

increments with non-cumulative effect and the complaint was closed.

Thereafter the petitioner has been subjected to transfer. But the fact

remains that the basis on which the transfer of the petitioner has made

does not have legs to stand owing to the fact that the complaint was

not found correct. It is argued that once the petitioner has already

been punished for his behaviour, therefore, no such subsequent order

of transfer should have been passed. Even if the authorities are of the

opinion that the behaviour of the petitioner is not good with the other

co-employees then the petitioner could have been transferred within

the same Division as nearby place as the seniority of the petitioner

who is Compounder of the Ayush Department is maintained at

Divisional Level and transferring the petitioner to a far place Jhabua

about 550 kilometers will adversely affect his seniority. He has

brought to the notice of this Court letter dated 19.11.2018 written by

the Secretary of the Divisional Departmental Promotion Committee

to all the Principals, Superintendents, Ayush Officers of the Ayurvedic

Colleges to send the details particulars of the Division which

comprised of having Division at Sheopur, Morena, Bhind, Gwalior,

Datia, Shvipuri, Guna and Ashoknagar.

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

(4) It is further brought to the notice that several posts are still

lying vacant in the nearby places, therefore, the petitioner may be

shifted to some nearby place with the same division. The wife of the

petitioner is government employee and working in the School

Department as a Teacher in Government School at Shivpuri. The

father and mother of the petitioner are ill and are required to take care

off. The mother of the petitioner is suffering with cancer and father

has undergone by-pass surgery, therefore, they require regular follow-

up check-ups. The age of the father and mother is above 70 years,

therefore, they require utmost care during this Corona Pandemic and

except petitioner there is no other male member in the family to take

care. Even otherwise, as the seniority of the Ayurvedic Compounder

is maintained at Divisional Level, therefore, transferring the

petitioner out of Division will adversely affect the seniority. It is

pointed out that there are 12 posts of Compounders vacant in the

entire district of Shivpuri and some other in the nearby places within

the Division itself. The authorities may be directed to consider the

representations sympathetically and transfer the petitioner at a nearby

place within the Division itself. The petitioner is ready to go on

transfer within the Division. It is pointed out that despite interim

relief being granted to the petitioner vide order dated 3.5.2021 the

authorities have not permitted the petitioner to join his services as it is

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

pointed out that the petitioner in pursuance to the transfer order was

already relieved on 23.2.2021 and the relieving order was served upon

the daughter of the petitioner.

(5) By filing a rejoinder the counsel for the petitioner has pointed

out that the petitioner was on leave in the entire month of February

and only three working days are being shown in the attendance

Gwalior for his treatment. Once the petitioner is on leave then it

could not be said that the relieving order was communicated to the

petitioner. In pursuance to the interim order granted by this Court

the authorities have not permitted the petitioner to join the services

which amounts to wilful disobedience of this Court's order and falls

under the purview of contempt of Court's order. He has also filed an

application for complying the order dated 5.3.2021, but no effect was

given to the same.

(6) Per contra counsel appearing for the respondents have opposed

the contention and has argued that in pursuance to the interim order

granted by this Court as the petitioner was already relieved on

23.3.2021 the communication of which was already made to the

petitioner's daughter which clearly finds place in the endorsement

made on the relieving letter dated 22.2.2021 and the petitioner was not

permitted to join because this Court has directed the authorities to

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

permit the petitioner to continue at his place of posting, in case the

petitioner has not relieved, but the petitioner has already being

relieved, therefore, he could not be permitted to join. The petitioner

has neither join the transfers place of posting and has remained on

unauthorized leave for a couple of days, and has made himself liable

for disciplinary action. It is argued that the transfer is a condition of

service and employee is duty bound to comply the transfer order.

Several complaints are made against the petitioner's working and his

behaviour with the other employees. However, he fairly submits that

the complaint of sexual harassment made by woman employee was

found to be incorrect, but the behaviour of the petitioner with other

co-employee was not good, therefore, he was subjected to imposition

of penalty of stoppage of two annual increments with cumulative

effect and the petitioner was subjected to transfer because the

behaviour was not good. In such circumstances, no interference

should be called for. He has placed reliance upon the judgment

passed by the Division Bench of this Court in the case of R.S.

Chaudhary Vs. State of M.P., ILR (2007) M.P.1329, wherein the

guidelines have been framed by the Division Bench for consideration

of transfer order. He has further relied upon the judgment passed by

the Division Bench of this Court in the case of Mridul Kumar

Sharma Vs.State of M.P. ILR (2015) MP 2556, wherein it was

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

observed that until and unless the transfer order is being executed and

the petitioner joined at a transfer place of posting, the representation

cannot be taken into consideration by the respondents authorities. In

such circumstances, he has prayed for dismissal of the writ petition.

(7) Heard the learned counsel for the parties and perused the

record.

(8) From the perusal of the record, it is seen that the complaint was

made against the petitioner with respect to sexual harassment by

government employee which was found to be incorrect by the

committee which has investigated the matter and order Annexure P/5

dated 22.03.2021 is being passed, wherein the complaint was found to

be false. However, the behaviour of the petitioner was not good with

the co-employees. The petitioner was subjected to transfer at a distinct

place to Jhabua 550 kilometers from the present place of posting.

Apart from the other contention raised by the petitioner, it was pointed

out that the seniority of the petitioner is maintained at Divisional level

for which no response is being submitted on behalf of the respondents.

Transferring the petitioner out of the Division will adversely affect the

seniority of the petitioner. A document dated 19.11.2018 is brought

to the notice of the Court, wherein the details particulars were called

for by the Divisional Departmental Promotion Committee for

preparation of the seniority list. The letter as reproduced as under:

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

(9) From perusal of the aforesaid letter, it is clear that the seniority

is maintainable at the Divisional Level. The petitioner has also

brought to the notice that certain posts are lying vacant of Ayurvedic

Compounder in nearby districts as well as 12 posts are vacant in

Shivpuri. The rejection of representation in pursuance to the order

passed by this Court, the order impugned reflects that the committee

constituted for investigating the complaint of the petitioner has

proposed for transfer of the petitioner at some distinct Division like

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

Indore or Ujjain.

(10) Considering the aforesaid, the authority has transferred the

petitioner at Jhabua and the representation submitted by the petitioner

in pursuance to the order dated 4.3.2021 in W.P.No.5190/2021 has

been rejected. But the fact remains that the order passed by the

authority Annexure P/5 with respect to the complaint of sexual

harassment against the petitioner does not speaks of that there was any

recommendation by the committee to transfer the petitioner in some

distinct division. Even otherwise as the seniority is maintained at the

Division Level, therefore, transferring the petitioner outside the

Division is unwarranted and it will adversely affect the seniority of the

petitioner as the return/compliance report is silent on the aforesaid

issue. This Court is aware of the fact that the transfer order should

be interfered in exceptional circumstances as has been held by the

Division Bench in the case of R.S. Chaudhary (supra) and Mridul

Kumar Sharma (supra). In the present case the seniority of the

employee i.e. petitioner has been adversely affected transferring him

beyond the Division as the seniority is maintained at Divisional Level.

Therefore, this Court deems it appropriate to interfere with the

transfer order and entertain the writ petition against the rejection of

representation.

(11) This Court has already granted interim relief on two occasions

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

to the petitioner, initially on 4.3.2021 making observation as under:

"Till the representation is decided, the petitioner shall be allowed to continue at the present place of posting, if already not relieved."

And subsequently vide order dated 3.5.2021 passed in the present

petition which is as under:

"Taking a prima facie view of the matter subject to what the other side has to say, this Court for the time being, directs that if the petitioner has not been relieved, then he would be allowed to continue on the present place where he was working immediately prior to the order passed on 15/02/2021 and in the same capacity till the next date of hearing."

(12) In view of the interim relief granted to the petitioner, the

authorities have brought on record the relieving order of the petitioner

dated 23.2.2021 which was communicated to the daughter of the

petitioner and the petitioner was stated to be on leave as is reflected

from the attendance register which is filed by the petitioner showing

him working for only three days in the month of February. In such

circumstances, the relieving order is served upon the petitioner's

daughter behind his back when he was on leave. Thus, from the

aforesaid analysis of the facts and circumstances of the case, this

Court deems it appropriate to quash the impugned order of rejection

THE HIGH COURT OF MADHYA PRADESH W.P.No.8442/2021 (Rakesh Dagor Vs. State of M.P. and others)

of representation of the petitioner and direct the authorities to