Ashwani Jharia vs The State Of Madhya Pradesh
2021 Latest Caselaw 358 MP

Citation : 2021 Latest Caselaw 358 MP
Judgement Date : 1 March, 2021

Madhya Pradesh High Court

Ashwani Jharia vs The State Of Madhya Pradesh on 1 March, 2021

Author: Sujoy Paul

               HIGH COURT OF MADHYA PRADESH
                            W.P. No.4650/2021
          (ASHWANI JHARIA Vs THE STATE OF MADHYA PRADESH AND OTHERS)


JABALPUR; Dated: 01.03.2021
      Shri Amit Mishra, learned counsel for the petitioner.
      Shri Ritwik Parashar, learned Government Advocate for the
respondents/State.

Heard on admission.

This petition assails the order dated 19.02.2021 whereby petitioner, an Assistant Director and presently working as Principal of a Training Centre, Dindori is transferred to newly established District Niwari. This transfer order is assailed by contending:

1. Petitioner is transferred to a new district where exists no departmental infrastructure, adequate funds etc.

2. Petitioner's wife is also a Government servant working at Dindori.

3. During ban period, petitioner has been transferred.

4. Posts are still lying vacant at Dindori where petitioner can be adjusted.

The prayer is opposed by learned Government Advocate. So far first point is concerned, if a new district has been constituted, an entire paraphernalia/administrative infrastructure needs to be created and prepared there. Thus, petitioner cannot assail the transfer order by submitting that there exists no infrastructure. In fact, petitioner being a senior officer holding a Class-II post is entrusted with the work so that in a new district proper infrastructure etc. can be created.

So far question of husband and wife's posting at one place is concerned, curtains are finally drawn on this issue by Supreme Court in the case of Union of India vs. S.L. Abbas, 1993 (4) SCC 357. The Apex Court opined as under:

"An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it. While orderding 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 same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force. (Paras 6 and 7)"

(emphasis supplied)

In view of this judgment, there is no enforceable right for petitioner to remain posted at the same place where spouse is working. The provision in the policy is only directory in nature. So far ban is concerned, the ban is also imposed by way of an executive instruction. Merely because certain posts are still lying vacant at Dindori, it does not mean that the department is bound to keep the petitioner at Dindori. Employer is the best judge to decide where services of an employee are required. Interference in transfer order can be made if order is passed by an authority having no jurisdiction, it changes service condition of an employee, to his detriment, proved to be malafide etc. None of theses conditions are available in the present case. Personal inconvenience cannot be a ground to assail transfer order.

In view of Division Bench judgment of this Court in R.S. Choudhary Vs. State of M.P. ILR 2007 M.P. 1329, I am only inclined to observe that if petitioner prefers a representation against transfer order, respondent No.1 shall consider and decide it by reasoned order within three weeks.