Omprakash vs The State Of Madhya Pradesh
2021 Latest Caselaw 6306 MP

                                 1
                                                  W. A. No. 822/2021

            HIGH COURT OF MADHYA PRADESH
                  BENCH AT GWALIOR
     DB : JUSTICE S.A. DHARMADHIKARI & JUSTICE
                        ANAND PATHAK
                         W A. No. 822/2021
                             Omprakash
                                 Vs.
                        State of M.P. & Ors.
Whether reportable :- Yes /No
 _______________________________________________________
For Appellant         : Shri U.K. Bohare, Advocate.
For Respondents-State : Shri Dheeraj Budholiya, Panel Lawyer
________________________________________________________
                      JUDGMENT

(Delivered on 01/10/ 2021)

Per Justice S.A. Dharmadhikari

Heard on the question of admission and interim relief.

2) This intra Court Appeal under Section 2 (1) of the

Madhya Pradesh Uchch Nyalaya (Khand Nyay Peeth Ko Appeal)

Adhiniyam, 2005 has been filed, questioning the legality and validity

of order dated 31/08/2021 passed by Writ Court dismissing W.P. No.

13222/2021 seeking quashment of transfer order dated 28/06/2021,

whereby, the appellant, who is a Peon, has been transferred from the

office of Executive Engineer, Harsi High Level Canal, Division No. 2,

Dabra, District Gwalior to Pariyojana Prashasak Maa Ratangarh,

P.R.U., Mau, District Bhind (M.P.) on administrative ground.

W. A. No. 822/2021

3) Learned counsel for the appellant submits that impugned

transfer order dated 28/06/2021 has been passed in flagrant violation of

transfer policy. It is further submitted that learned Single Judge has

erred in dismissing the writ petition inasmuch as while passing the

impugned order, the learned Single Judge has not taken into

consideration the fact that transfer of the appellant has been effected

during ban period. It is further submitted that appellant is a low paid

class IV employee and, therefore, he ought not to have been

transferred. It is further submitted that appellant is a senior most peon

in the department, but inspite of this fact, he has been transferred. It is

further submitted that son and daughter of the appellant are studying at

Gwalior and the son is doing B.Com, whereas, his daughter is doing

B.A. from Gwalior and, therefore, it would be difficult for a low paid

employee to maintain double establishment. On these grounds, he

prays for quashing of the impugned order.

4) The learned Single Judge came to the conclusion that in

absence of any allegation of malafide against any authority, it cannot

be treated that transfer is stigmatic and the appellant has been singled

out for transfer from one place to another. The transfer is purely of

administrative exigency which is well within the competence of the

Authority who is at liberty to utilize the manpower in best possible

manner.

W. A. No. 822/2021

5) Per contra, learned Panel Lawyer for the State submits that

no interference is warranted in the impugned transfer order and the

same has been passed in administrative exigency. The transfer policy is

nothing but a guideline which does not have any statutory force. The

Supreme Court recently in the case of Namrata Verma Vs. State of

U.P. and others by order dated 06.09.2021 passed in SLP (Civil)

No.36717/2017 has held that "it is not for the employee to insist to

transfer him/her and/or not to transfer him/her at a particular place. It is

for the employer to transfer an employee considering the requirement.

The learned Single Judge has rightly dismissed the writ petition. On

these grounds, prayed for dismissal of the instant appeal.

6) Having heard learned counsel for the parties, we are of the

view that there is substantial force in the submissions advanced by

learned Panel Lawyer. Moreover, it is well settled in law that transfer

is an incidence of service. Which employee should be posted where, is

a matter for the appropriate authority to decide. Until and unless the

transfer is vitiated by mala fide or is made in violation of any statutory

provisions, the Court cannot interfere with the order of transfer. The

Supreme Court while dealing with the scope of judicial review in the

matter of transfer, held that transfer is an incidence of service and

normally should not be interfered with by the Court. If any

administrative guidelines recalling transfer of an employee are

W. A. No. 822/2021

violated, at best the same confers the right on the employee to

approach the higher authorities for redressal of his grievance. [See:

Union of India and Others v. S.L. Abbas, (1993) 4 SCC 357, State

Bank of India v. Anjan Sanyal and others, (2001) 5 SCC 508,

Public Services Tribunal Bar Association v. State of U.P. and

another, (2003) 4 SCC 104, State of U.P. and Others v. Gobardhan

Lal, (2004) 1 SCC 402, R.S. Chaudhary and Others v. State of M.P.

and Others, ILR (2007) MP 1329, Government of Andhra Pradesh

v. G. Venkata Ratnam, (2008) 9 SCC 345 and State of Haryana

and Others v. Kashmir Singh and Another, (2010) 13 SCC 306].

7) In the instant case, the appellant has been transferred on administrative grounds. He has not been able to make out a case of malafide or violation of statutory policy, the twin grounds available for interference. The appellant has no statutory right to remain posted at any particular place.

8) In view of above, there is no palpable error apparent on the face of the impugned transfer order dated 28/06/2021 warranting interference by this Court. The view taken by the Writ Court cannot be found fault with.

9) Accordingly, the instant writ appeal deserves to be and is, therefore, dismissed.

(S.A. DHARMADHIKARI)                                                       (ANAND PATHAK)
       JUDGE                                                                     JUDGE
   (01/10/2021)                                                              (01/10/2021)
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            Date: 2021.10.01 18:40:07 +05'30'