Madhya Pradesh High Court
Surendra Singh Sayal vs The State Of Madhya Pradesh on 20 September, 2021
Author: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
W.P.No. 19180/2021
(Surendra Singh Sayal Vs. State of M.P. and others)
Jabalpur, Dated : 20.09.2021
Shri Manoj Manav, counsel for the petitioner.
Shri Rahul Deshmukh, learned Panel Lawyer for the
respondents/State.
The challenge is made to the order dated 01.09.2021, (Ann. P-1),
whereby the petitioner has been transferred from Gram Panchyat,
Khajuriya, Kanka Janpad Panchyat Sonkatchha to Gram Panchyat Bandi,
Janpad Panchyat Kategaon, district Dewas on administrative ground.
The ground for challenging the transfer order is that petitioner
services are governed by Madhya Pradesh Panchayat Service (Gram
Panchyat Secretary Recruitment & Condition of Service), Rules 2011 and
the cadre of Panchyat Secretary has been declared as District Cadre post
and the CEO, Jilla Panchyat is the controlling and disciplinary authority of
the Panchyat Secretary. Therefore, the transfer of the petitioner is without
taking approval and sanction from the concerned authority is impermissible
and the CEO of Zila Panchyat has no right to transfer an employee like the
petitioner.
Another ground taken by the petitioner is that the petitioner has
been transferred in the mid session and the daughter of the petitioner is
prosecuting in Sonkatchha. Even the transfer policy dated 24.6.2021
provides that various conditions including Class 5 which provides that
transfer of Class III and Class IV employees should not normally be made
and in case should not be done without approval of the Incharge Minister.
On these grounds, challenge to the transfer order is made.
It is submitted that a detailed representation has been filed by the
petitioner to the respondent concerned but the same is kept pending and
not decided. In such circumstances, interference in the transfer order is
called for and an innocuous prayer is made that the authorities be directed
to consider and decide the pending representation of the petitioner within
a short period and till then the petitioner be permitted to continue at the
present place of posting, i.e. at Gram Panchyat, Khajuriya Kanka,
Sonkatch, Dewas.
Per contra, learned counsel appearing for the State has opposed
the prayer and submitted that the transfer of the petitioner is on
administrative ground and an employee working in the department is duty
bound to comply with the transfer order. The ground which has been raised
regarding violation of Rule 11 is concerned, the aforesaid aspect has been
considered and decided by this court in W.P. No. 15306/2021, (Rakesh
Kumar Urmaliya Vs. State of M.P. and others), decided on on
18.08.2021 and the petition was disposed of with the direction to the
respondents to consider and decide the representation of the petitioner
within a short period. No interim relief was granted to the petitioner.
Therefore, the aforesaid ground has already been settled and is of no help
to the petitioner. As far the other grounds are concerned, they are
merely of personal inconvenience pointed out by the petitioner and the
only remedy available for the same is to get his representation decided by
the respondents - authorities in the light of Division Bennch judgment 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, it is submitted that the authorities be directed to consider
and decide the pending representation of the petitioner within short period.
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 on administrative ground within a short distance. The ground
with respect to violation of Rule 2011 is concerned, the same has already
been decided in the case of Rakesh Kumar Urmaliya, (supra).
Therefore, the aforesaid issue is already settled. As far as other grounds
are concerned, they are only of personal inconvenience, pointed out by
the petitioner for which the only remedy which can be granted is to direct
to consider and decide the representation as has been held in the case
of R.S.Chaudhary Vs. State of M.P. and others, (supra) by the
Division Bench, wherein it was 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, no interference is called for in the transfer
order. But, 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. 2 within a period of seven days alongwith the relevant
documents and in case such a representation is filed, the respondent no. 2
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
2021.09.22 15:38:34
+05'30'
