Madhya Pradesh High Court
Kalpana Borkar vs The State Of Madhya Pradesh on 21 October, 2021
Author: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.21316 of 2021(s)
(Kalpana Borkar Vs. The State of M.P. & others)
Jabalpur, dated: 21.10.2021
Shri Amit K.Chaturvedi, learned counsel for the petitioner.
Shri Dilip Parihar, learned panel lawyer for the respondents/State.
Challenge being made to the transfer order dated 05.08.2021
passed by the respondent No.2 whereby, the petitioner has been transferred
from Balaghat to Katni.
The grounds for challenging the order is that the petitioner will
lose her seniority, if she executes the transfer order as the stipulation is made
in the impugned order of transfer that the seniority will be fixed at the
bottom at the transferred place of posting. Second ground taken by the
petitioner is that he has been transferred at a distance of 350 Kms and she is
a Class-IV employee. Third ground which is taken that petitioner's husband
is working is at a same place and the transfer of the petitioner at a distance
of 350 Kms is in violation of Clause 23 of the Transfer Policy. Another
ground taken by the petitioner is that the petitioner has been subjected to
transfer just to accommodate the respondent No.4 who has been transferred
on her own request. She has already preferred a detailed representation to the
respondents/Authorities, the same is kept pending and has not been decided
till date.
An innocuous prayer is made to direct the respondents/authorities
to consider and decide the pending representation within the stipulated time
frame and till then the petitioner may be permitted to continue at the present
place of posting. It is further prayed that the respondents be directed that no
coercive action be taken against the petitioner till the decision on the
representation.
Per contra, counsel appearing for the State has opposed the prayer
and submitted that the transfer order was passed on 05.08.2021 that is almost
two months back and the petitioner has neither assailed the order at the
relevant time and nor she has executed the transfer order. The respondent
No.4 must have executed the transfer order and must have joined in place of
the petitioner. As far as other grounds are concerned, the representation
which is submitted by the petitioner will be taken care of by the
respondents/Authorities redressing her grievances. He has placed reliance on
the judgment passed by the Division Bench of this Court in the case of
R.S.Choudhary Vs. State of M.P. and others reported in ILR (2007) MP
1329 and Mridul Kumar Sharma Vs. State of M.P. reported in ILR
(2015) MP 2556 and has submitted that in case of violation of any of the
condition of the transfer policy, the only remedy available to the petitioner is
to get the representation decided.
Heard the learned counsel for the parties and perused the record.
From the perusal of the record, it is seen that the transfer order is
dated 05.08.2021, the petition has been filed on 28.09.2021 that is almost
two months after the transfer order. The petitioner has not executed the
transfer order till date. The respondent No.4 who has said to have been
transferred in place of the petitioner on her own request must have executed
the transfer order by now. The law in respect to transfer is well settled in the
case of R.S.Choudhary (supra) wherein the Division Bench of this Court
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 (supra) wherein the Division
Bench of this Court 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."
As far as the personal inconveniences which are being pointed out
by the petitioner, the remedy available to her is to file a representation which
will be considered and decided by the respondents/Authorities. As far as
effect of seniority is concerned, as the respondent No.4 must have joined the
transferred place of posting, therefore, there is no question of granting
interim relief to the petitioner. In such circumstances, the only relief can be
extended to the petitioner is that the respondents/authorities be directed to
consider and decide the representation of the petitioner.
In such circumstances, this Court deems it appropriate to dispose
of this writ petition with a direction to the petitioner to file a fresh
representation to the respondent No.2 along with all the relevant documents
and if such a representation is filed within seven days from today, the
respondent No.2 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 one month from the date of receipt of certified copy of this order.
With the aforesaid observations, this petition is disposed of.
(Vishal Mishra)
Judge
AM.
Digitally signed by ANINDYA
SUNDAR MUKHOPADHYAY
Date: 2021.10.23 18:18:24 +05'30'
