Madhya Pradesh High Court
Sanjay Joshi vs M.P Power Generating Co Ltd. on 9 September, 2021
Author: Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.802/2021
Sanjay Joshi
-Versus-
M.P. Power Generating Co. Ltd., Jabalpur & ors.
Shri Rajas Pohankar, Advocate for the appellant.
Shri Amalpusp Shroti, Advocate for the respondents No.1 & 2.
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CORAM :
Hon'ble Shri Justice Prakash Shrivastava, Judge.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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JUDGMENT
(Jabalpur, dtd.09.9.2021)
Per : Vijay Kumar Shukla, J.-
The present intra-court appeal has been filed under
Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyaypeeth ko Appeal) Adhiniyam, 2005, being aggrieved by the
order dated 26-8-2021 passed by the learned Single Judge in WP-
1357-2021 [Sanjay Joshi vs. M.P. Power Generating Co. Ltd. &
others] whereby the writ petition challenging the order dated 21-12-
2020 transferring the writ-petitioner/appellant [hereinafter referred
to as "the appellant"] from Shri Singaji Thermal Power Station, M.P.
Power Generating Co. Ltd. (MPPGCL), Khandwa to Satpuda
Thermal Power Station, MPPGCL, Sarni remained unsuccessful.
The transfer order is challenged mainly on the ground that it has
been issued in violation of the Transfer Policy, dated 29-01-2011,
wherein the Chief Engineer (HR & A) is not the competent authority
to transfer the appellant.
2. The respondents submitted that as per the Transfer Policy
read with the order dated 28-01-2011 and order dated 04-02-2011 the
"Committee of the Head of Department" was constituted, which duly
considered and the Chief Engineer (HR & A) simply communicated
the order of the Committee. The Committee considered the case of
the appellant and Mr. Shailesh Chauhan and directed their mutual
transfer.
3. The appellant contended that the Chief Engineer (HR &
A) himself is holding the lower post of Additional Chief Engineer
(Gen) that too on probation, the Committee did not consist of the
Head of Department. It was further contended on behalf of the
appellant that the Transfer Policy dated 29-01-2011 is not applicable
to the employees of the Board and the transfer order has been issued
with malafide intent.
4. The respondents in their additional return further
submitted that the Chief Engineer (HR & A) is the moving authority
for transfer and a transfer order is issued after obtaining approval
from the Committee.
5. The learned Single Judge after taking into consideration
the specific stand of the respondents in the additional return
dismissed the writ petition.
6. It is strenuously urged by the learned counsel for the
appellant that the learned Single Judge did not consider the fact that
the respondents in their return and the additional return, have stated
that the Chief Engineer (HR & A) has simply communicated the
order and he is the moving authority for transfer and the transfer
orders are issued after taking approval from the Committee. Whereas
in the present case the Chief Engineer (HR & A) has acted as one of
the Member of the Committee. It is vehemently urged that as per
Transfer Policy dated 28-01-2011 the Head of the Department
concerned of the Company was required to forward the related
proposal through the Head of Department (HR & A), MPPGCL to
the Management Committee for approval. However, the said
procedure has not been adopted in the present case, as the proposal of
transfer has been made by Shri S.M. Solapurkar, who is Additional
Chief Engineer (HR & A) that too on probation describing himself as
Chief Engineer (HR & A),who is not the Head of Department of the
concerned Department. It is assiduously urged that the Chief
Engineer (HR & A) is not the Head of Department of HR which is
Executive Director (HR & A) being higher in rank as such the
proposal by the Chief Engineer (HR & A) cannot be said to be by the
Head of Department (HR & A) which is the mandatory procedure as
per Policy dated 04-02-2011.
7. The contention of the appellant is that the learned Single
Judge has failed to consider that the case of the appellant for transfer
was not recommended by the Head of Department of the Committee
and the Head of the Department is the Executive Director and not the
Chief Engineer. It is also contended that the note-sheet has been
shown to be routed through the Office of the Executive Director (HR
& A), whereas there is no officer posted as Executive Director (HR &
A) and the note-sheet has not been routed through the third Member
of the Committee. Further, the note-sheet has been put up for
consideration and approval, but no words "considered" and
"approved" find mention in the note-sheet and simply signatures of
two officers have been shown without their designation and names,
which is in utter violation of the Circular dated 25-01-2016 issued by
the Company.
8. It is further contended that the appellant is presently
posted at Shri Singaji Thermal Power Project and is not posted in any
Power Station and for the said reason, delegation of power will not
apply to the appellant, who is a Class-2 employee. It is argued that
the learned Single Judge did not consider the fact that the respondent
No.2 - Chief Engineer (HR & A) is actually holding the lower post
of Additional Chief Engineer (Gen) that too on probation. It is
further argued that the Chief Engineer (HR & A) was holding the
current charge of the post but has acted as the Chief Engineer (HR &
A) without mentioning the words "current charge". Thus, the
transfer order has been issued in violation of the Circular dated 25-
01-2016.
9. The learned counsel for the respondents submitted that
the transfer is challenged inter alia on the ground that it has been
issued in violation of the Transfer Policy dated 29-01-2011. The
Transfer Policy in the present case is not a statutory policy, it is an
executive instruction. Transfer is an incident of service and no a
government employee or public servant has legal right for being
posted at any particular place. No employee has got a right to remain
posted at a particular place of posting. It is the prerogative of the
administration to decide the transfer and posting of its employees
considering the administrative exigency. The respondents have
placed reliance on the decision of the Apex Court rendered in the
case of State of U.P. and Gobardhan Lal, (2004) 11 SCC 402.
10. The learned counsel for the respondents further
submitted that the appellant has directly approached this Court
without resorting the remedy to approach the concerned authority by
filing a representation. He relied on the judgment passed by a
Division Bench of this Court in R.S. Choudhary vs. State of M.P.,
ILR [2007] MP 1329 wherein it is held that in case transfer is
alleged to be contrary to the policy, the appropriate remedy of the
petitioner is to approach the authority by filing a representation and
there is nothing on record that the petitioner has moved any
representation against the transfer order. It is argued that though the
Transfer Policy provides power to cancel the transfer order which is
vested in the Chairman-cum-Managing Director.
11. The respondents referred to Clause 8 of the Transfer
Policy dated 29-01-2011, which provides power to make "Inter-
regional transfers" of Class II, Class II and Class IV employees
which is vested in the Committee of Heads of the Department,which
duly considered the case of the appellant and Mr. Shailesh Kumar
Chauhan and directed their mutual transfer.
12. In the rejoinder the appellant/petitioner submitted that the
transfer has been proposed by Shri S.M. Solapurkar, who is
portraying himself as Chief Engineer (HR & A) whereas the transfer
order has been issued on the letter head of the Executive Director
(HR & A) and signed by Chief Engineer (HR & A). It is canvassed
that presently there is no officer posted as Executive Director (HR &
A) and Shri S.M. Solapurkar is holding the post of Additional Chief
Engineer (Gen) that too on probation, as can be seen from the
Gradation List of the Executive Director (HR & A) and that of
Additional Chief Engineer (Gen). The contention is that the Chief
Engineer (HR & A) is not the Head of Department of HR, which is
Executive Director (HR & A) being higher in rank and as such the
proposal by the Chief Engineer (HR & A) cannot be said to be by the
Head of Department (HR & A) and the same is contrary to the
procedure prescribed in the Circular dated 4-02-2011.
13. It is setforth that the note-sheet has been shown to be
routed through the Office of the Executive Director (HR & A) and
Chief Engineer (PRG), whereas there is no officer posted as
Executive Director (HR & A) and the note-sheet has not been routed
through the third Member of the Committee. Further, note-sheet has
been put up for consideration and approval, but no words
"considered and approved" find mention in the note-sheet and simply
signatures of two officers have been shown without their designation
and names. The submission has been reiterated in the rejoinder
submission.
14. The respondents filed additional reply and denied that
the transfer order has been issued by an incompetent authority. It is
putforth that as per delegation of power the answering respondents-
Company, the Chief Engineer (HR & A) is the moving authority for
transfer of the personnel of the Company and transfer orders are
issued after taking approval of the Committee. The said procedure
was followed in the case of the appellant. It is assiduously urged that
the Office of HR & A was known as the Office of Additional
Secrertary, MPPGCL, Jabalpur. The same was modified and
designated as Office of the Executive Director (HR & A), MPPGCL,
Jabalpur by order dated 15-01-2011. It is contended that, at present
there is shortage of Executive Directors in the respondents-Company
and only two Executive Directors are working in the whole
establishment but not in HR & A. Therefore, for administrative
convenience, current charge is being assigned to Additional Chief
Engineers to the post of Chief Engineer and they are posted in the
Office of Executive Director (HR & A), MPPGCL, Jabalpur. All the
powers of the Executive Director (HR & A), MPPGCL, Jabalplur are
vested in the Chief Engineer (HR & A) and all current charge holder
Additional Chief Engineers working on the post of Chief Engineer
(HR & A) are vested with all the powers of Chief Engineer (HR &
A). In the aforesaid backdrop, the impugned order of transfer has
been passed by the competent authority.
15. In view of our preceding analysis, the contention of the
learned counsel for the appellant that the transfer order lacks
competence, is not worth acceptance. Further, violation of transfer
policy/executive instructions is not enforceable by law. The law
relating to scope of interference in the transfer matter is no longer res
integra, as it has been held that the transfer is an incidence of service
and an employee has no legal right to continue at one place of
posting. The transfer policy formulated by the State Government is
not enforceable, as the employee does not have a right to remain at a
place for a number of years and the courts have limited jurisdiction to
interfere in the order of transfer unless there is a violation of any
mandatory statutory rule or when the action is capricious or
malicious as held by the Division Bench of this Court in the case of
R.S. Choudhary (supra) and also in the case of Mridul Kumar
Sharma vs. State of M.P. vs. State of M.P., 2015(4) MPLJ 480.
Further, the Apex Court in Union of India vs. S.L. Abbas, (1993) 4
SCC 3557 and Public Services Tribunal Bar Association vs. State
of Uttar Pradesh, (2003) 4 SCC 104, ruled that judicial review of an
administrative order of transfer is not permissible except for the
limited grounds, as discussed hereinabove.
16. In the case of Baddula Lakshmaiah and others vs. Sri
Anjaneya Swami Temple and others, (1996) 3 SCC 52, the Apex
Court ruled, that in an intra-court appeal the appellate Court is a
Court of Correction which corrects its own orders, in exercise of the
same jurisdiction as was vested in the Single Bench. Such is not an
appeal against an order of subordinate court. In such appellate
jurisdiction the High Court exercises the powers of a Court of Error.
17. We do not perceive any illegality or perversity in the
order passed by the learned Single Judge and the findings ascribed in
the impugned order are impeccable and the same do not warrant any
interference in the present intra-court appeal.
18. Ex-consequenti, the writ appeal, being sans
substratum, is dismissed without any order as to costs.
(Prakash Shrivastava) (Vijay Kumar Shukla)
Judge Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.09.15 11:39:49 +05'30'
