Madhya Pradesh High Court
Smt. Kajal Sewaiwar vs The State Of Madhya Pradesh on 7 September, 2021
Author: Vishal Mishra
1
The High Court Of Madhya Pradesh
WP-17256-2021
(SMT. KAJAL SEWAIWAR Vs THE STATE OF MADHYA PRADESH
AND OTHERS)
Jabalpur, Dated : 07-09-2021
Heard through Video Conferencing.
It is informed by letter dated 6.9.2021 by the Secretaries of
respective Bars regarding abstaining of Advocates from appearing in High
Court, District Courts and all Tribunals and Forums in Jabalpur from
6.9.2021 to 7.9.2021.
The petitioner is present in person.
The challenge is being made to the legality, validity and
propriety of the order dated 31.8.2021, (Ann. P-7) passed by the
respondent no.1, whereby petitioner has been transferred from Municipal
Council Kareli, district Narsinghpur to Municipal Council, Dogar, Parasiya,
district Chhindwara.
It is submitted that petitioner was initially appointed on
2.6.2016 after being qualified from Professional Board of Examination. It is
pointed out that the petitioner was transferred on 18.3.2020 from from
Nagar Palik Parishad, Mandla to Nagar Palik Parishad, Kareli and she has
recently joined the place of posting at Kareli. Now within a short span of
one year, she has again been transferred. It is submitted that she is
having a small child born on 25.10.2020 and she was on maternity leave
from 22.10.2020 to 30.4.2021 and thereafter from 1.5.2021 to 11.6.2021,
she has taken child care leave as per rules and circulars. After completion
of leave period she has recently joined on 14.6.2021 at Municipal Council,
Kareli. It is submitted that her transfer is a frequent transfer which is at
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BASANT KUMAR
SHRIVAS
Date: 2021.09.09
14:58:02 IST
distance of 200 km from the present place of posting. No medical intensive
facilities are available at the transferred place of posting. In such
circumstances, she has already preferred a detailed representation to the
authorities, the same is pending consideration and is not decided till date.
It is argued that the authorities be directed to decide the representation
and till the decision on the representation, she may be permitted to work
at the present place of posting, i.e. Kareli. She has relied on the judgment
passed in W.P. No. 21175/2019, (Sanjay Upadhyay Vs. State of
M.P. and others) dated 3.12.2019, wherein in similar circumstances,
the interim relief was granted by this court. It is further pointed out that
the transfer order is violative of the transfer policy as the transfer is within
one year of the earlier transfer. She has further relied upon the judgment
passed by the Supreme Court in the case of T.S.R. Subramanian and
others Vs. Union of India and others, reported in (2013) 15, SCC
732, wherein the Supreme Court has categorically held that fixed period
of tenure at different level is of three years of posting. Therefore,
employees should not be transferred prior to completion of three years.
She has prayed for quashment of the impugned transfer order.
Heard the petitioner in person.
From the perusal of the record, it is seen she has been
subjected to transfer within a period of one year of the earlier transfer, i.e.
dated 18.3.2020. The law with respect to transfer is apparently and settled
by the Division Bench of this Court in R.S. Choudhary Vs. State of
M.P.and others, reported in ILR (2007) MP 1329 wherein the Division
Bench 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
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Digitally signed by
BASANT KUMAR
SHRIVAS
Date: 2021.09.09
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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".
Further 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, 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".
The petitioner's transfer is on administrative grounds. The
transfer order can only be interfered in specific circumstances. No such
circumstance could have been pointed out by the petitioner. Only the fact
that she has been transferred within a period of one year and the fact
that she is having small child, who was born on 25.10.2020. As she
already submitted a detailed representation to the respondent no.1. This
court deems it appropriate to dispose of the writ petition with the direction
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Digitally signed by
BASANT KUMAR
SHRIVAS
Date: 2021.09.09
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to the respondent no. 1 to consider and decide the pending representation
of the petitioner within a period of fifteen days from the date of receipt
of certified copy of this order.
It is needless to emphasis that this court has not expressed
any opinion on merits of the case.
The writ petition is disposed of.
(VISHAL MISHRA)
JUDGE
bks
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SAN Not
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Digitally signed by
BASANT KUMAR
SHRIVAS
Date: 2021.09.09
14:58:02 IST
