Madhya Pradesh High Court
Abhishek Gupta vs The State Of Madhya Pradesh on 15 November, 2021
Author: Vishal Mishra
1 WP-24549-2021
The High Court Of Madhya Pradesh
WP No. 24549 of 2021
(ABHISHEK GUPTA Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 15-11-2021
Shri Ajay Pal Singh, counsel for the petitioner.
Shri Aman Pandey, panel lawyer for the respondents/State.
The present petition has been filed challenging the validity, legality and
propriety of the order dated 02.11.2021 passed by the respondent no.1;
whereby the petitioner has been transferred from Bhopal to Raisen.
It is pointed out that in the year 2019 the petitioner has filed an
application requesting for his transfer to Bhopal on the ground of ailment of
his parents. In pursuance to the same, the petitioner was transferred to
Bhopal. It is argued that during a short span of 9 years service the petitioner
has been subject to seven transfers. The petitioner has been transferred during
the ban period without any concurrence of the Chief Minister of the State. It
is argued that the transfer of the petitioner is contrary to Clause-17 of the
Transfer Policy; wherein, normal tenure of three years at a particular place is
provided. Petitioner was recently transferred in April, 2019 at the present
place of posting and within a short period he has again been transferred
without awaiting for completion of regular tenure of three years. He has
placed documents on record that the parents are ill and require regular
treatment. He has submitted a detailed representation for cancellation of his
transfer order which is pending consideration and not been decided till date.
An innocuous prayer is made to direct the respondents/authorities to consider
and decide the pending representation and the petitioner may be permitted to
continue at the present place of posting for a period of three years normal
tenure atleast.
Per contra, counsel appearing for the State has opposed the prayer and
submitted that the petitioner’s transfer is on administrative grounds and is
a service condition; therefore, the petitioner is duty bound to comply with the
Signature Not Verified
SAN
transfer order. Personal inconvenience cannot be a ground for quashment of
Digitally signed by TAJAMMUL HUSSAIN
KHAN
Date: 2021.11.16 18:37:54 IST
2 WP-24549-2021
the transfer order. The medical documents which have been filed does not
reflect any medical emergency. He has placed reliance upon the judgment
passed by the Division Bench of this Court in the case of R.S. Chaudhary
and Others v. State of M.P. and Others, ILR (2007) MP 1329 and in the
case of Mridul Kumar Sharma Vs. State of M.P. and others reported in
ILR (2015) MP 2556 and has submitted that in violation of condition of
transfer policy, the only remedy available to the petitioner is to get his
representation decided at an early date.
Heard the learned counsels for the parties and perused the record.
From the perusal of the record, it is seen that the petitioner was
transferred at the present place of posting in the year 2019 on the ground of
ailment of her parents. A sympathetic consideration was made by the
authorities and the petitioner was transferred to Bhopal on his own request.
Now, the petitioner has stayed there in Bhopal from April, 2019. The medical
documents which have been filed by the petitioner are of 2020 pointing out
the ailment of parents. No documents pertaining to seriousness of the disease
or any medical emergency has been filed by the petitioner. They are under
regular treatment and that time be continued from the transferred place of
posting also.
The law is settled by the Division Bench of this Court with respect to
transfers; wherein, the Division Bench in the case of R.S.Chaudhary Vs.
State of M.P. and others reported in ILR (2007) MP 1329 has held as
under :-
"Transfer Policy formulated by State is not enforceable as employee does
not have a right and courts have limited jurisdiction to interfere in the order of
transfer. Court can interfere in case of mandatory statutory rule or action is
capricious, malicious, cavalier and fanciful. In case of violation of policy, proper
remedy is to approach authorities by pointing out violation and authorities to deal
with the same keeping in mind the policy guidelines."
The Division Bench of this Court in Mridul Kumar Sharma Vs.
State of M.P. Reported in I.L.R (2015) MP 2556, has held as under :
"Transfer of a Government servant appointed to a particular cadre of
Signature Not Verified
SAN
transferable posts from one place to other is an incident of service. No
Government servant or employee of public undertaking has legal right for being
Digitally signed by TAJAMMUL HUSSAIN
KHAN
Date: 2021.11.16 18:37:54 IST
3 WP-24549-2021
posted at any particular place. Transfer from one place to other is generally a
condition of service and the employee has no choice in the matter. Transfer from
one place to other is necessary in public interest and efficiency in the Public
Administration. Whenever, a public servant is transferred he must comply with
the order but if there be any genuine difficulty in proceeding on transfer it is open
to him to make representation to the competent authority for stay, modification,
o r cancellation of the transfer order. If the order of transfer is not stayed,
modified, or cancelled the concerned public servant must carry out the order of
transfer. If he fails to proceed on transfer in compliance to the transfer order, he
would expose himself to disciplinary action under the relevant Rules, as has
happened in the instant case. The respondent lost his service as he refused to
comply with the order of his transfer from one place to the other".
Looking to the facts and circumstances of the case and as admitted by
the judgment passed by the Division Bench of this Court in the aforesaid
cases, the only relief which can be extended to the petitioner is to direct the
authorities to decide the representation of the petitioner at an early date.
Considering the overall facts and circumstances of the case and the order
passed by the Division Bench in the aforesaid cases, this Court deems it
appropriate to dispose of the writ petition directing the petitioner to prefer a
fresh representation to the respondent no.1 within a period of seven days
from today in case such a representation is filed, the respondent no.1 is
directed to dwell upon the same and pass a self contained speaking order and
communicate the outcome to the petitioner within a period of 15 days from
the date of receipt of this order.
Needless to mention that this Court has not expressed any opinion on
the merits of the case.
Accordingly, the petition is disposed of.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
taj
Signature Not Verified
SAN
Digitally signed by TAJAMMUL HUSSAIN
KHAN
Date: 2021.11.16 18:37:54 IST
