Madhya Pradesh High Court

K.P. Singh vs The State Of Madhya Pradesh on 17 September, 2021

Author: Vishal Mishra

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            The High Court Of Madhya Pradesh
                      Writ Petition No.18958 of 2021
                     (K.P. Singh Vs. State of Madhya Pradesh)

Jabalpur, Dated : 17.09.2021
      Shri Praveen Kumar Verma, learned counsel for the petitioner.

      Shri Vivek Sharma, learned Deputy Advocate General for the

respondents/State.

With the consent of the parties, the matter is heard finally.

Challenge is being made to the transfer order dated 29.08.2021

whereby the petitioner has been transferred from Government Primary

School, Ward No.13, Chhatarpur to Government Primary School,

Jamuniya.

It is alleged that the same is made just to accommodate the

respondent No.4. It is argued that there was no post vacant in the

Government Primary School, Ward No.13 Chhatarpur where the

petitioner was working. In terms of the transfer policy dated 24.06.2021,

the status of vacancy is to be informed in every institution by the District

Education Officer, after due verification. The District Education Officer

has uploaded on the portal that there is no vacancy available in

Government Primary School, Chhatarpur which is reflected from

Annexure P-5. A letter issued by the Principal of the School to the District

Education Officer, District Chhatarpur and in pursuance to the same, the

information as also uploaded on the portal, but despite of the same just to

accommodate the respondent No.4, the petitioner has been transferred. It

is further argued that the respondent No.3 has no authority to transfer the

petitioner as he is only the In-charge Principal which is reflected from

document (Annexure P-7) dated 28.09.2018 and In-charge District

Education Officer is having no authority to transfer the employee like the

petitioner, therefore, he has prayed for interference in the transfer order.

Per contra, learned counsel appearing for the State has opposed the

prayer and has contended that the transfer is a condition of service and a

Government employee is required to comply with the transfer order. It is

further argued that the issue that an In-charge Officer can pass orders with

respect to the transfer and posting of an employee being pure

administrative matters but he has no right to pass orders with respect to

initiation of some departmental proceedings, as the same does not amount

to administrative matters. There is no violation of any of the fundamental

rights of the petitioner by transferring him to another place. Even

otherwise, transfer being a condition of service and can only be interfered

in exceptional circumstances, as has been held by the Hon'ble Supreme in

the case of Union of India Vs. S.L.Abbas, reported in 1993 (4) SCC 357

He has further relied upon the judgment passed by the Division Bench of

this Court in the case of R.S.Chaudhary and others 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. and others reported in ILR (2015)

MP 2556. It is submitted that as the petitioner has filed a detailed

representation to the Authorities, the same will be dealt with and decided

expeditiously.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the petitioner has been

transferred by In-charge District Education Officer as argued, just to

accommodate respondent No.4. It is a natural phenomenon that if a person

is transferred from one place to another, some other employee is posted in

his place. The petitioner could not show any malafides on the part of the

respondents/Authorities while transferring the respondent No.4 in place of

the petitioner. The Hon'ble Supreme Court in the case of State of

Harayana and others Vs. Kashmir Singh and another reported in

(2010) 13 SCC 306 has considered the effect of transfer of posting by In-

charge Officer and has held as under :-

"12. Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the concerned State authorities which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well-settled that Courts must not ordinarily interfere in administrative matters and should maintain judicial restraint vide Tata Cellular v. Union of India, AIR 1996 SC 11."

The law in respect to transfer of an employee is settled in the

aforesaid cases, wherein 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 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, 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, no interference is called for in the transfer

order. However, the petitioner is at liberty to file a fresh representation to

the respondents Nos.2 and 3 within a period of seven days and in turn, the

respondents Nos.2 and 3 are directed to dwell upon the representation and

pass a self contained speaking order in the said representation and the

outcome be communicated to the petitioner within a period of 30 days

from the date of receipt of certified copy of this order.