Madhya Pradesh High Court
Indrajeet Tiwari vs The State Of Madhya Pradesh on 27 October, 2021
Author: Vishal Mishra
1 WP-22740-2021
The High Court Of Madhya Pradesh
WP-22740-2021
(INDRAJEET TIWARI Vs THE STATE OF MADHYA PRADESH AND OTHERS)
2
Jabalpur, Dated : 27-10-2021
Shri K.C. Ghildiyal, learned counsel for the petitioner.
Shri Prashant Mishra, learned panel lawyer for the respondents/State.
Challenge is being made to transfer order dated 31.08.2021 (Annexure-
P-1) passed by respondent No.1 whereby, the petitioner has been transferred
from Rural Engineering Service Division Shahdol to Rural Engineering
Service Division Barwani on administrative grounds.
The grounds was challenge are that the petitioner is officiating as an
officer bearer of Madhya Pradesh Karmchari Congress and holds the office
of District Secretary of the Association and in terms Clause 33 the transfer
policy, the office bearer of the Association are exempted from the transfer for
two tenures or four years. The another ground which is taken by the petitioner
is that the petitioner has been recently transferred to the present place of
posting and only completed 1 years and 5 months of service as Janpad
Panchayat Jaisingh Nagar and vide impugned order he has again been
transferred. It is submitted that the petitioner has already submitted a detailed
representation to respondent authorities. An innocuous prayer is made to
direct the respondents to consider and decide the pending representation and
as the petitioner has not been relieved till date he may be permitted to
continue to work at the present place of posting i.e. Rural Engineering Service
Division Shahdol. He has further brought to the notice of this Court the by-
laws of the society wherein Clause-13 is relevant and reads as under:-
Clause 13- ftyk izc U/kdkfj.kh lfefr dk xBu %& lk/kkj.k lHkk }kjk
ftyk/;{k dk fuokZp u djk;k tk;sx k tks dsU nzh ; izc U/kdkfj.kh }kjk vf/kd``r
inkf/kdkjh ds funsZ' ku esa gksx kA ftyk/;{k foosd kuql kj inksa dh la[ ;k ?kVk ,oa c<+k
ldsx sa ftldh lwp uk 15 fnol ds vUnj dsU nzh ; izc U/kdkfj.kh lfefr dks nsu h
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SAN
vfuok;Z gksx hA dsU nzh ; izc U/kdkfj.kh lfefr dk fu.kZ; vfUre gksx kA ftyk/;{k
Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2021.10.29 10:47:17 IST
2 WP-22740-2021
fuEukfdar izn kf/kdkfj;ksa dk euksu ;u vfuok;Z :i ls djsax s %&
v- mik/;{k
c- egkea= h
l- lfpo
n- efgyk lfpo
b- dks" kk/;{k
In pursuance to the aforesaid, the petitioner has been nominated as the
Secretary of the Madhya Pradesh Karmchari Congress.
Per contra learned counsel appearing for the State has opposed the
prayer and has submitted that the issue with respect to the transfer of the
office bearer holding the post has been considered in the case of Balram
Dhakar Vs. State of M.P. and others , passed Writ Petition
No.17800/2021, decided on 09.09.2021, wherein the question with respect
to election or nomination of an officer bearer was considered by the Court
and the petition was dismissed or owing to the fact that the Clause of the
transfer policy is applicable in the case of Elected member not in case of
nominated member. It is further submitted that the transfer of the petitioner is
at a short distance and a government servant holding the post is duty bound
to comply with the transfer order. 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.
The transfer order was passed on 31.8.2021 and the petitioner has
preferred a writ petition after a considerable delay on 20.10.2021 and the only
explanation given is the petitioner has filed representation which was pending
consideration before the authorities. An assurance was given by the
authorities to consider the representation but till date no action has been taken
.
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3 WP-22740-2021
However, the fact remains that if the petitioner was aggrieved by the
transfer order he should have filed the petition before this Court at an early
date. Thus, he has prayed for dismissal of the petition.
Heard the learned counsel for the parties and perused the record.
From perusal of the record, it is seen that the transfer order is
31.8.2021 and the petition has been filed on 20.10.2021 without there being
any proper explanation for delay in filing the writ petition in a transfer case.
The ground of officer bearer which has been taken by the petitioner assailing
the transfer order has been considered by this Court in the case of Balram
Dhakar (supra).
Admittedly, the petitioner is a nominated the office bearer therefore, the
aforesaid clause in the transfer policy will not be of any benefit to the
petitioner. As far as the other grounds are concerned, their personal
inconvenience, for that the only remedy available to the petitioner is to get the
representation decided at an early date.
The Hon'ble 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."
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
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4 WP-22740-2021
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".
Considering the overall facts and circumstances of the case, petition
has been filed almost a delay of more than two months from the date of
transfer order and also the fact that the petitioner could not made out the case
for interference of the transfer order as no malafides or violation of any rules
and statutory provisions could be pointed out by the petitioner. In such
circumstances no interim relief can be extended to the petitioner.
Accordingly the petition is disposed of directing the petitioner to file
fresh representation before the respondent No.1/ authorities within a period of
seven days and if such a representation is filed by the petitioner, the
respondents No.1/authorities is directed to dwell upon the representation and
pass a self contained speaking order within a period of 15 days from the date
of receipt of certified copy of this order and communicate the outcome to the
petitioner.
Needless to mention that this Court has not expressed any opinion on
the merits of the case.
Accordingly, the petition is disposed of.
(VISHAL MISHRA)
JUDGE
irfan
Signature Not Verified
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Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2021.10.29 10:47:17 IST
