Madhya Pradesh High Court
Kamlesh Salam vs The State Of Madhya Pradesh on 27 October, 2021
Author: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
W.P.No. 23469/2021
(Kamlesh Salam Vs. State of M.P. and others)
Jabalpur, Dated : 27.10.2021
Shri S.R. Tamrakar, learned counsel for the petitioner.
Shri Sanjeev Kumar Mishra, learned Panel Lawyer for the
respondents/State.
The present petition under Article 226 of the Constitution of India
has been filed challenging the transfer order dated 31.8.2021, (Ann. P-1)
passed by the respondent no. 1, whereby the petitioner has been
transferred from Betul to district Umaria in utter violation of the transfer
policy issued by the State Government. He has been transferred at a
distance of 600 km.
The ground for challenging for challenging the transfer order are
that the petitioner as well as mother of the petitioner were found Corona
positive in the month of April 2021 and his mother is still facing the post
corona complications. The clause 9.3 of the transfer policy speaks of the
same. The aforesaid aspect has not been considered and dealt with at the
time when the transfer order of the petitioner was issued. He has
submitted a detailed representation to the respondent no. 1 but the same
is kept pending and has not been decided till date.
An innocuous prayer is made to direct the respondent no. 1 to
consider and decide the pending representation and till then he may be
permitted to continue at the present place of posting.
Per contra, counsel appearing for the State has opposed the prayer
and submits that transfer being a condition of service, a Govt. employee is
required to comply with the transfer order. The transfer order has been
issued on administrative ground. The medical documents which have been
filed by the petitioner are of the month of May 2021 and no medical
emergency could be pointed out in the writ petition. For personal
inconveniences the interference in the transfer policy is not warranted. In
violation of clauses of transfer policy, only remedy available to the
petitioner is to get the representation decided at an early date in light of
the judgments 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 in the case of Mridul Kumar Sharma Vs. State of M.P.
Reported in I.L.R (2015) MP 2556.
In such circumstances, he has fairly submitted that the
representation may be considered and decided expeditiously.
Heard the learned counsel for the parties and perused the record.
From perusal of the record it is seen that the petitioner has been
transferred from Betul to district Umaria. The personal inconveniences, i.e.
the medial ailment of the petitioner as well as her mother are being
raised for challenging the transfer order for which a detailed
representation has been filed which is pending before the respondent no.
1.
Law with respect to transfer is settled in the case of
R.S.Chaudhary Vs. State of M.P. and others, (supra) 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., (supra) 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 circumstances and also the fact that the transfer order was
passed on 31.8.2021 and the petition was filed on 23.10.2021, i.e. almost
after two months, this court deems it appropriate to dispose of the writ
petition with the direction to the petitioner to prefer a fresh representation
to the respondent no. 1 within a period of seven days raising all the
grounds and if such a representation is submitted, the respondent no. 1 is
directed to dwell upon the same and pass a self contained speaking order
communicating the outcome of the same to the petitioner within a period
of fifteen days, from the date of receipt of certified copy of the order.
Needless to say that this court has not expressed any opinion on
merits of the case.
The petition stands disposed of.
(VISHAL MISHRA)
JUDGE
bks
BASANT KUMAR
SHRIVAS
2021.10.28 12:20:19
+05'30'
