Madhya Pradesh High Court
Rajesh Brahmane vs The State Of Madhya Pradesh on 21 September, 2021
Author: Vishal Mishra
1 WP-19629-2021
The High Court Of Madhya Pradesh
WP-19629-2021
(RAJESH BRAHMANE Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, Dated : 21-09-2021
Heard through Video Conferencing.
Smt.Sudha Gautam, Advocate for petitioner.
Shri Rahul Deshmukh, Panel Lawyer for respondent/State.
B y filing the present petition under under Article 226 of the
Constitution of India, the challenge is made to the order dated 31.8.2021
(Annexure-P-2) whereby the petitioner has been transferred from Gramin
Krishi Vistar Adhikari in the office of Varisth Krishi Vikas Adhikari, Vikas
Khand Bajag, District-Dindori to the office of Varisth Krishi Vikas Adhikari,
Vikas Khand Anuppur, District-Anuppur, which is at a distance of 250
kilometers.
T h e grounds for challenging the same is that petitioner has not
completed three years of service at the present place of posting and he has
been subjected to transfer. The impugned transfer order is violation of Clause
14 and 18 of the transfer policy. He was recently posted at the present place
on 5.7.2019. The recommendation is been made by the Sarpanch requesting
for cancellation of the transfer order of the petitioner. There are no
complaints against the petitioner, therefore, transfer order in absence of
administrative exigency is unwarranted. A detailed representation is filed to
the respondent No.3, the same is pending consideration and has not been
decided till date. It is argued that the earlier transfer order of petitioner was
on his own request and therefore, petitioner was required to complete the
minimum tenure of three years. The authorities have transferred the petitioner
at a distance place of 250 kms. without considering the aforesaid aspects.
Counsel for the petitioner by way of additional ground has brought to
the notice of this Court a certificate dated 16.9.2021 issued by Varisth Krishi
Signature Not Vikas Adhikari, Vikas Khand Bajag, District-Dindori pointed out the fact that
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Date: 2021.09.24
16:06:27 IST
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no body has joined the transfer place of posting at Anuppur. Therefore, an
innocuous prayer has been made to direct the respondent No.3 to consider
and decide the pending representation within a short time and till then the
petitioner may be permitted to continue at the present place of posting.
P er contra, counsel appearing for the State has opposed the prayer
submitted that the transfer being a condition of service and the Government
employee is required to comply with the transfer order. The petitioner has
been transferred on administrative exigencies. The grounds, which have been
taken by the petitioner for cancellation, on those grounds the interference in
the transfer order could not be made considering the judgments passed by the
Division Bench of this Court in the cases of R.S.Chaudhary & Others
versus State of M.P & Others reported in I.L.R (2007) M.P 1329 and
Mridul Kumar Sharma versus State of M.P. & Others reported in I.L.R
(2015) M.P 2556.
In view of the aforesaid, learned Panel Lawyer for the respondent/State
submits that the only remedy available to the petitioner is to file a
representation before the competent authority for redressal of his grievances.
It is further submitted that as far as other grounds regarding representation are
concerned, the same will be dealt with by the Authorities and decided
expeditiously.
Heard the learned counsel for the parties and perused the record.
From the perusal of the record it is seen the petitioner is subjected to
transfer vide impugned order dated 31.8.2021 to Anuppur which is at a
distance of 250 kms. The earlier transfer order of the petitioner was 5.7.2019
on his own request. The present transfer order shows the transfer to be on
administrative grounds. The grounds regarding violation of Clause 14 and 18
of transfer policy are concerned, the only remedy that can be granted to the
petitioner is to get the representation decided at an early date in view of the
law laid down by the Division Bench of this Court, where in it is held as
under:-
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In R.S.Chaudhary (supra), the Division Bench of this Court has
observed 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."
In Mridul Kumar Sharma (supra), the Division Bench of this Court
has observed 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."
Considering the overall facts and circumstances of the case and
considering the Division Bench judgments in the aforesaid cases, this Court
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petitioner to submit a fresh representation to respondent No.3 and in case
such a representation is filed within a period of seven days from today, the
respondent No.3 is directed to dwell upon the same and pass a self contained
speaking order and communicate the outcome to the petitioner within a period
of 15 days from the date of receipt of certified copy of this order.
Needless to mention that this Court has not expressed any opinion on
the merits of the case.
With the aforesaid observations, this petition is disposed of.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
irfan
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Date: 2021.09.24
16:06:27 IST
