Lakush Kumar Sahu vs The State Of Madhya Pradesh
2021 Latest Caselaw 7076 MP

                                            1

 THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                    AT JABALPUR

                             (DIVISION BENCH)
                              W.A. No. 986/2021

      Lavkush Kumar Sahu                                        ...Appellant
                                      Versus

      State of Madhya Pradesh and others                         ...Respondents
      ---------------------------------------------------------------------------------
      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
      ---------------------------------------------------------------------------------
      Presence :
              Shri Vikash Mishra, learned counsel for the appellant.
              Shri B.D.Singh, Government Advocate for the
              respondents/State.
      ---------------------------------------------------------------------------------

                               JUDGMENT

(08/11/2021)

Per : V.K. Shukla, J.

The present intra court appeal has been filed under Section 2(1) of

Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal)

Adhiniyam, 2005, being aggrieved by the order dated 14-09-2021 passed

in W.P.No.17767/2021 (Lavkush Kumar Sahu Vs. State of Madhya

Pradesh and others) whereby the writ petition filed by the appellant/writ

petitioner has been dismissed.

2. The appellant has challenged the order of transfer dated 31-08-

2021 passed by the respondent no.2, whereby he has been directed to be

transferred from Vikas Khand Sirmour, District Rewa to Vikas Khand

Sabalgarh, District Morena on the post of Assistant Block Manager.

3. It is alleged that the appellant was initially appointed on the post

of Assistant Block Manager on contract basis by the respondent no.2 on

01-09-2015. Thereafter, the appellant was transferred from Vikas Khand

Sirmour, District Rewa to Vikas Khand Sabalgarh, District Morena on

the post of Assistant Block Manager.

4. Learned counsel for the appellant placing reliance on the circular

dated 24-02-2020 submitted that there is no provision of transfer of a

contractual employee because his service is not permanent in nature but

his place can be changed on extreme conditions and on administrative

exigency but this order does not reflect any such conditions or

administrative exigency. He has been transferred to accommodate the

respondent no.5. He has placed reliance on the judgment dated 16-03-

2021, passed by the Division Bench of this court in W.A.No.281/2021

(Seema Pasi Vs. State of M.P. and others) wherein similarly situated

person was permitted to continue in the present place of posting. It is

further submitted that the appellant has been transferred at a distance

of almost 650 kms. from the place of posting causing great hardship to

the entire family.

5. Learned counsel for the respondents has vehemently opposed the

contention and contended that the transfer is a condition of service and

there is no embargo for not transferring the contractual employee like

the petitioner. The services of the appellant are governed by the Human

Resources Manual and as per Clause 3.5 which deals with Staff

Appointment and Contract, there is a specific provision that the contract

would be renewed annually subject to satisfactory annual performance

appraisal, all fixed tenure staff would be transferable as per the needs of

SRLM. It is further submitted that the appellant was well aware of this

fact that his services are transferable and he can be transferred at any

point of time, subject to administrative exigency and requirement of

work.

6. We have heard the learned counsel for the parties and perused the

record . The learned Single Judge has considered that the challenge to

the transfer order has been made on the three grounds. Firstly, that the

transfer order is violative of Clause 33 of the transfer policy. Second

ground is that the appellant is a contractual employee, therefore, he is

exempted from being transferred to some other place and the third

ground is regarding the personal hardship being faced by the appellant

owing to such transfer order as he has been transferred at a distant place

just to accommodate the respondent no.5 and also the non-application of

rationalization policy.

7. The appellant was initially appointed on contract basis and was

posted at Balaghat. The services of the appellant are governed by

Model Human Resource Manual wherein Clause No.3.5 deals with

Staff Appointment and Contract, which reads as under :

"3.5- Staff Appointment and Contract,- A contract i.e., 'a legal binding arrangement between SRLM and the concerned staff for performing their roles and duties while engaged as staff under SRLM 'would be signed once the selected candidates confirm their joining after probation period.

The recruitment and selection of staff in SRLM in general would be on a fixed tenure basis. All such appointments would follow the Recruitment and Selection Policy of SRLM.

In general, all staff engaged on fixed tenure basis would have three year tenure, unless otherwise decided by the SMD/CEO, EC or the Governing Board, as the case may be. Other terms of contract include:

Contract would be renewed annually subject to satisfactory annual Performance Appraisal All fixed tenure staff would be transferable as per the needs of SRLM.

The contract of Fixed Tenure Staff may be terminated upon unsatisfactory performance (as per Performance Appraisal) or, terminated due to disciplinary action or may end after completion of the contract period or may end voluntarily (resignation) by the staff.

For other staff, the terms and conditions of work and conduct would be defined in the contract."

8. In pursuance to the appointment order issued to the appellant, the

appellant was required to execute a contract with the

respondents/department. From perusal of the aforesaid conditions of

appointment and contract, it is clear that the service of the appellant is

transferable as per the needs of State Rural Livelihoods Mission (SRLM).

The basic object of the Mission is to facilitate the district and block units

in building and supporting the community institutions and community

professionals.

9. Learned counsel for the respondents further submitted that the

appellant has been transferred just to complete the Mission which is

still pending at the transferred place of posting and as per the transfer

order, the appellant is required to again enter into an agreement/contract

with the respondents authorities at the new transfer place. The transfer is

made with an object to complete the Mission and as per the availability

and requirement of the appellant's service at the transferred place.

10. The appellant is posted at the present place of posting since 2015

and further the respondents have stated that the appellant has been

transferred on administrative exigency just to complete the Mission

which is still pending at the transferred place of posting. The judgment

relied by the appellant in the case of Seema Pasi (supra) would not

apply to the facts of the present case . The appellant has been transferred

on administrative exigency as he has already stayed for about 6 years

at the present place of posting and further he has been transferred to

complete the mission which is still pending at the transferred place of

posting.

11. In view of the aforesaid, we do not find any error in the order

passed by the learned Single Judge dismissing the writ petition.

However, the learned Single Judge has already observed that the

appellant would be at liberty to prefer a representation before the

respondents authorities for redressal of his grievances and if such

representation is preferred within ten days from the date of the order, the

authorities shall deal with the representation and pass a self contained

speaking order.

12. In view of the aforesaid, no error is found in the order passed by

the learned Single Judge, hence no interference is called for.

13. Accordingly, the writ appeal is dismissed.

Pending interlocutory application(s), if any, is also disposed of.

      (RAVI MALIMATH)                     (VIJAY KUMAR SHUKLA)
        CHIEF JUSTICE                             JUDGE

hsp

      Digitally signed
      by HARSAHAI
      PATERIYA
      Date: 2021.11.11
      16:28:34 +05'30'