Radheshyam Manloi vs Urban Developement And Housing ...
2021 Latest Caselaw 1021 MP

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                                         Writ petition No.7114/2021
                                Radheshyam Mandloi Vs. State of M.P. and others
   HIGH COURT OF MADHYA PRADESH: BENCH AT
                   INDORE
(SINGLE BENCH: HON'BLE Mr JUSTICE VIVEK RUSIA)

                            W.P. No.7114/2021

       (Radheshyam Mandloi Vs. The State of Madhya Pradesh)

Indore, Dated: 24.03.2021

       Shri A.K.Sethi Senior Advocate, along with Harish Joshi,
        learned counsel for the Petitioner.
    Shri Aditya Garg learned Government Advocate for
        respondent No.1/State.
    Shri Madhusudan Dwivedi learned counsel for Respondent
        No.2.
                               **********

The petitioner has filed the present petition being aggrieved by the order dated 18.03.2021 (Annexure P/1) passed by respondent No.1 whereby he has been transferred from the post of CMO, Nagar Palika Parishad, Badwah, District Khargone to Deputy Commission, Nagar Palika Nigam, Ratlam and the respondent No.2 has been transferred from the post of Revenue Sub Inspector, Nagar Parishad Chhanera, District Khandwa to Incharge CMO, Nagar Palika Parishad, Badwah, District Khargone.

(2). The petitioner has assailed the impugned order on the following ground:

(i). That he is a victim of frequent transfer as vide order dated 23.09.2020 he was transferred from Dhar to Badwah and he joined at Badwah on 25.09.2020 and now within six months he has been transferred without their being any administrative exigency.

(II). Under the provision of 84 and 86 of Municipalities Act,

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others 1961, the petitioner can be transferred from one Municipality to another municipality but by the impugned order, he has been transferred to the Municipal Corporation which amounts to deputation and the same could have not been done without the consent of the petitioner.

(III). Respondent No.2 is holding a substantive post of Revenue Sub Inspector and he has been posted as in-charge CMO in place of the petitioner, therefore, the petitioner is being replaced by an employee holding a lower post.

Shri Madhusudan Dwivedi learned counsel for respondent No.2 submits that this Hon'ble High Court vide order dated 19.03.2019 passed in W.P. No.5086/2019 has answered all the above issues raised by the petitioner in this writ petition. He has also placed reliance on the decision passed in W.A.No.1458/2019 dated 19.09.2019 and W.A.No.984/2019 dated 02.07.2019 passed by two different Division Bench of this High Court and prays for dismissal of the petition.

A learned Panel lawyer appearing for the State has argued in support of the impugned order by submitting that by the impugned order not only petitioner, but the number of the CMOs have also been transferred to different Municipal Corporations and various Revenue Sub Inspectors have been transferred as in- charge of CMO. It is further submitted that the State is suffering acute shortage of regular CMO and Revenue Inspectors are not getting the promotion because of the stay by the Apex Court, therefore, the government has decided to give the charges of the post of CMOs to the Revenue Inspectors who fulfil eligibility criteria for the post of CMO. The post of CMO is a promotional post of Revenue Inspector, hence, there is no illegality in transferring respondent No.2 as in charge CMO.

I have heard learned counsel for the parties and perused the

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others record.

The facts and grounds raised in W.P. No.5286/2019 dated 19.03.2019 are identical to the facts and grounds taken in this petition. The order dated 19.03.2019 passed in W.P. No.5286/2019 is reproduced below:

By this writ petition under Article 226 of the Constitution of India the petitioner who is working as CMO has challenged the order of transfer dated 1st March 2019 whereby he has been transferred from Municipality Neemuch to Municipal Corporation Ujjain as Dy. Commissioner. By the same transfer order respondent no. 3 holding the post of Health Officer has been transferred from Urban Development Authority Mandsaur to Municipality Neemuch.

Learned counsel for petitioner submits that transfer of petitioner from Municipality to Municipal Corporation as Dy. Commissioner is infact deputation which has been done without consent of the petitioner. He has submitted that petitioner has been transferred to accommodate respondent no. 3 as CMO Municipality Neemuch whereas he is only holding the post of Health Officer and that the petitioner is victim of frequent transfer as he has been transferred for the fourth time in four years. He also submits that Schedule II of Rules of 1973 is in respect of promotion.

Learned counsel for State opposing the prayer has submitted that Schedule II of Rules, 1973 permit transfer and posting of a CMO as Dy. Commissioner and that respondent no. 3 has been transferred in the same capacity as Health Officer and has been given charge of CMO temporarily on account of forthcoming election and its a general order of transfer and no malafides are established.

Learned counsel for respondent no. 3 has also submitted that respondent no. 3 has not been transferred in the place of petitioner but has been transferred as Health Officer, therefore, no interference is required.

I have heard the learned counsel for parties and perused the record.

Undisputedly the services of petitioner are governed by MP State Municipal Service (Executive) Rules, 1973. These rules have been amended by notification dated 10th April 2015 in exercise of powers conferred by Section 355 Read with Section 86(2) of MP Municipalities Act, 1961. In terms of aforesaid Rule, the petitioner is Member of MP Urban Administrative Service. The IInd Schedule to amended Rule provides for posting of Chief Municipal Officer as Dy. Commissioner Municipal Corporation.

It is worth noting that deputation posting is specifically mentioned in column 10 of Schedule II, but posting of CMO as Dy. Commissioner is not mentioned as deputation. Hence in view of these amended Rules the posting of petitioner as Dy. Commissioner Municipal Corporation Ujjain is on transfer and is not on deputation. Thus no consent of petitioner is required.

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others In orders dated 13/2/2019 passed in WP no. 3019/19 (s) in the matter of Radheshyam Mandloi Vs. State of MP and others;

order dated 11/3/2019 passed in WP No. 4749/19 in the matter of Smt. Meenakshi Patidar Vs. State of MP and others; order dated 11/5/2017 in WP No. 7898/14; order dated 1/2/2018 passed in WP No. 3649/17 in the case of Piyush Bhargav Vs. State of MP and others; and order dated 14/3/2019 passed in WP No. 5502/2019, the aforesaid amended rules have not been brought to notice of the Court, hence the petitioner is not entitled to the benefit of those orders.

The impugned order of transfer is a general order of transfer whereby several such CMOs have been transferred on administrative ground. Transfer of respondent no. 3 as Health Officer in Municipality Neemuch and his transfer is not in the place of petitioner.

So far as the issue of frequent transfer is concerned, the petitioner was last transferred on 14/6/2017 from Malhargadh District Mandsaur to Neemuch and thereafter more than one year and eight months have passed. Hence no interference on that ground is required.

The reply of respondents reveals that on account of administrative exigency and forthcoming election, respondent no. 3 has been given the charge of CMO temporarily. Hence it cannot be inferred that transfer of petitioner is for any malafide reason.

The scope of interference in transfer matters is very limited.

Supreme court in the matter of Abani Kanta Ray Vs. State of Orissa and others reported in 1995 supp (4) SCC 169 in this regard has held that transfer is an incident of service and the transfer order is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer.

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

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others 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 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

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others 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 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.

In similar facts and circumstances, the Division Bench of this Court has dismissed the writ appeals.

So far the frequent transfer of the petitioner is concerned earlier the petitioner was transferred vide order dated 09.02.2019 from CMO, Municipal Council, Dhar to Project Officer, District

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Writ petition No.7114/2021 Radheshyam Mandloi Vs. State of M.P. and others Urban Development Authority Morena. He filed a writ petition No.3019/2019 in which the transferred order stayed. Thereafter vide order dated 23.09.2020, he was transferred to CMO, Municipal Council, Badwaha, therefore, the writ petition has been dismissed as infructuous and now after more than six months he is being transferred to the vacant post of Deputy Commission, Municipal Corporation, Ratlam on the administrative ground, therefore, such order cannot interfere on the ground of frequent transfer because three years posting at one place is not a statutory right of a Government employee/officer. The frequent transfer is not a violation of service condition but a perception of inconvenience to be caused to the concerned employee Petitioner is holding transferable post and as per the transfer policy on the administrative ground, the officers of State services can be transferred before completion of even three years.

In view of the above, no case for interference in the impugned order of transfer is made out. Accordingly, the petition is dismissed.

( VIVEK RUSIA ) JUDGE praveen

PRAVEEN KUMAR NAYAK 2021.03.27 17:17:43 +05'30'