Madhya Pradesh High Court
Ganeshram Ahirwar vs The State Of Madhya Pradesh on 25 October, 2021
Author: Vishal Mishra
1 WP-22566-2021
The High Court Of Madhya Pradesh
WP-22566-2021
(GANESHRAM AHIRWAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, Dated : 25-10-2021
Shri Jafar Khan, learned counsel for the petitioner.
Shri Ankit Agrawal, learned GA for the respondent/State.
The present petition has been filed by the petitioner challenging the
order dated 27/03/2021 passed by respondent No.3 whereby the petitioner
has been transferred from Government Primary School Naudhana, Sagar,
District Sagar to Government Middle School Barkhera, Rahatgarh, Sagar,
District Sagar.
The challenge being made on the solitary ground is that the petitioner is
40% disable and the wife of the petitioner is also 50% disable. The
petitioners' transfer is at about 100 kms from the present place of posting. It
is submitted that the transfer of the petitioner is in violation of the Clause 26
and 32 of the transfer policy. It is argued that the petitioner has not been
relived till date but the authorities are creating pressure upon the petitioner to
comply with the transfer order dated 27/03/2021 Therefore, he has preferred
a representation before the respondents/authorities but the same is kept
pending consideration and not been decided till date. It is argued that as both
husband and wife are physically handicapped up to 40% and 50%
respectively. An innocuous prayer is made to direct the
respondents/authorities to consider and decide the pending representation
within a stipulated time frame. 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 opposed the prayer and submitted
that the transfer order is 27/03/2021 and the petitioner continue to work for
almost more than 6 months. Neither any representation is being preferred by
the petitioner as the relevant time against the transfer order. It is after a period
of six months the so called representation is being submitted by the petitioner
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pointing out the violation of Clause 26 and 32 of the transfer policy and
requesting for cancellation of transfer order. He has relied upon the judgments
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 submitted that no such interference could be
made in the transfer order after a lapse of period of 6 months. He has prayed
for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the record.
From perusal of the record, it is seen from the record that the transfer
order was passed in March 2021 and no efforts were made by the petitioner
to even prefer a representation against the transfer order pointing out the
violation of Clasue 26 and 32 of the transfer policy. It is only after a period of
more than 6 months the representation was filed and subsequent writ petition
has been preferred before this Court.
The Division Bench has categorically held that the grounds for
interference in the transfer order are clear as has been held in the case of
R.S.Chaudhary Vs. State of M.P. and others reported in ILR (2007)
MP 1329 wherein the 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."
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
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,
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
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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".
A specific query was made by the petitioner that since how long the
petitioner is working at the present place. He fairly submits that since the year
2009 the petitioner is continuously working at the present place. But it is
submitted that the he has not been relieved by the authorities till date. In such
circumstance no relief as far as the quashment of the transfer order can be
extended to the petitioner but looking to the fact that the categorical statement
as made by the petitioner he has not been relieved till date and looking to the
fact that both husband and wife are physically handicapped up to 40% and
50% respectively as being demonstrated in the certificate issued by the
medical Board.
In such circumstances, this Court deems it appropriate to direct the
petitioner to file a fresh detailed representation to the respondent No.3 within
a period of seven 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.
It is made clear that if the petitioner is still working and not been
relieved till date only that condition the respondent No.3 is directed to
entertain the representation.
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
(VISHAL MISHRA)
JUDGE
Prar
Digitally signed
by PRARTHANA
SURYAVANSHI
Date: 2021.10.28
11:40:00 +05'30'
