Arun Kumar Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 6598 MP

                                                                   1                             WP-21664-2021
                                        The High Court Of Madhya Pradesh
                                                   WP-21664-2021
                                          (ARUN KUMAR TIWARI Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                                2
                                Jabalpur, Dated : 21-10-2021
                                      Heard through Video Conferencing.
                                      Shri S.P Mishra, learned counsel for the petitioner.
                                      Shri Prasanjeet Chaterjee, learned PL for the respondent/State.

The present petition is filed before this Court being aggrieved by the impugned order dated 31/08/2021 (Annexure-P/1) wherein the petitioner has

been transferred from Forest Range Office Bargawan to Forest Range Office Mada District Singrauli on administrative grounds.

The ground for challenging is that the petitioner has been frequently transferred some orders have filed along with writ petition pointed out the petitioner has been frequently transferred. He has recently joined on 15/07/2020 at the present place and thereafter transfer has been passed by the authority which though were not executed by him. The order has not executed by him and is modified and the impugned order was passed on 31/08/2021. It is argued that the modification of the transfer order is also

considered to be a transfer order. Therefore, the case of the petitioner falls in the definition of the frequent transfer. He has placed reliance upon the order passed by the Coordinate Bench of this Court passed in W.P No.12994/2019 (Rakesh Kumar Vs. State of M.P and others) dated 17/10/2019 and is argued that in similar circumstances the Coordinate Bench has considered the frequent transfer and has held that when the authorities are not in a position to explain the administrative exigency, transfer of the petitioner of frequent places then the same falls under the definition of malice. In such circumstance, the transfer of the petitioner has also an outcome of malice from part of the respondent/authorities. The petitioner has suffered from Covid-19 and he is facing post covid complications. Therefore, he preferred Signature Not Verified SAN a detailed representation to the respondent/authorities but the same is pending

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.23 15:23:31 IST 2 WP-21664-2021 consideration and not been decided till date. An innocuous prayer is made by the petitioner to direct the respondent authorities to decide and consider the pending representation at an early. Till the decision of the representation he may be permitted to continue at the present place of posting.

Per contra, counsel for the State has no objection to the limited prayer made by the petitioner regarding the decision of the representation but it is

contended that the transfer order was passed on 31/08/2021. The petition has not complied with the transfer order and he has kept mum for almost more than one and half months. It is submitted that no interim relief can be extended to the petitioner after such delay. He has placed reliance upon the judgement passed by the Division Bench of this Court in the case of R.S. Chaudhary Vs. State of M.P. and others reported in ILR (2007) MP 1329 and Mridul Kumar Sharma Vs. State of M.P. reported in I.L.R (2015) MP 2556. It is contended that regarding the violation of Clause of the transfer policy the only remedy which is available to the petitioner is to get the representation decided at an early date. As far as the frequent transfer is concerned. The petitioner himself admitted the fact that he has joined the transfer place of posting in the month of July 2020 and the subsequent transfer order were not executed by him. Therefore, the same will be no benefit to the petitioner. The last impugned order i.e 31/08/2021 is yet to be complied with. The petition may be disposed of with the direction to the authority to decide the representation and the same will be considered and decided expeditiously.

Heard learned counsel for both the parties and perused the record. From the perusal of the record, it is seen that the petitioner has been transferred vide order dated 31/08/2021. He was posted at the present place in the month of July 2020 and thereafter although the transfer order was passed by the authorities but they were never given effect as the petitioner has never executed those order. They were subsequently modified. The impugned order was passed on 31/08/2021, the petitioner has filed on 01/10/2021. There Signature Not Verified SAN

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.23 15:23:31 IST 3 WP-21664-2021 is no question for grant of interim relief to the petitioner at this stage. As far as the representation is concerned. The Division Bench of this Court 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."

and in the case of 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 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 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, or 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".

In such circumstance, the direction can be issued to the authorities to Signature Not Verified SAN

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.23 15:23:31 IST 4 WP-21664-2021 decide the representation of the petitioner has relied upon the judgment in the case of Rakesh Kumar Vs. State of M.P and others. In such circumstance, this Court deems it appropriate to direct the petitioner to file a fresh detailed representation to the respondent No.3 within a period of 7 working days and in case if such a representation is filed, the respondents no. 3 is directed to dwell upon the same and pass a self contained speaking order within a period of 30 days from the date of receipt of certified copy of this order and communicate the outcome to the petitioner within the aforesaid period.

While deciding the representation the authorities is expected to consider the order dated 17/10/2019 passed in W.P No.12994/2019 in case of Rakesh Kumar (Supra).

Needless to mention that this court has not expressed any opinion on the merits of the case.

With the aforesaid observations, this petition is disposed of. C.c as per rules.

(VISHAL MISHRA) JUDGE

Prar

Signature Not Verified SAN

Digitally signed by PRARTHANA SURYAVANSHI Date: 2021.10.23 15:23:31 IST