Bhagirath Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 5739 MP

                                                         1                             WP-18540-2021
                              The High Court Of Madhya Pradesh
                                         WP-18540-2021
                                 (BHAGIRATH SINGH Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                      Jabalpur, Dated : 21-09-2021
                            Heard through Video Conferencing.

                            Shri Jitendra Kumar Tiwari, counsel for the petitioner.
                            Shri Shivam Hazari, Panel Lawyer for the respondents/State.

Challenge being made to the orders dated 27.08.2021 and 31.08.2021, passed by the respondents no.3 and 4; whereby the petitioner, who was

working as Panchayat Secretary in Gram Panchayat Kanchanpuri, Block Shahpura, District Jabalpur has been transferred to Gram Panchayat Sukha, Janpad Panchayat Panagar, District Jabalpur on administration grounds.

It is submitted that the petitioner is holding the post of Secretary in Gram Panchayat and his service conditions are governed by the Rules known as Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011 (hereinafter referred to as 'the Rules of 2011 for the sake of brevity) and under Rules 6 and 7 of the Rules of 2011 is has been specified that the Gram Panchayat Secretary may

be transferred only on administrative grounds or on the basis of his application within the District in accordance with the Transfer Policy issued by the Commissioner, Panchayat Raj and on the recommendation of the Chief Executive Officer, Janpad Panchayat, after conducting any enquiry with regard to the complaints made against the Secretary. The aforesaid aspect has not been taken into consideration while transferring the petitioner. He has brought to the notice of this Court an order passed by the Coordinate Bench in Writ Petition No.17555/2021; wherein, while disposing of the writ petition holding that the Court is not inclined to interfere with the transfer order and directed to file a representation and till the decision on the representation if nobody has joined in place of the petitioner, he may be directed to work. It is submitted that the similar relief may be extended to the petitioner. It is argued Signature Not SAN Verified that the petitioner has not been relieved till date in pursuance to the transfer Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:05 IST 2 WP-18540-2021 order and nobody has joined in place of the petitioner till date. In such circumstances the petition may be disposed of in similar terms as that of Writ Petition No.17555/2021; wherein, considering the judgment of the Division Bench of this Court in Writ Appeal No.13703/2012 that direction was given to decide the representation and till the decision on the representation if the

petitioner is not relieved, he may be directed to continue.

Per contra, counsel appearing for the State has opposed the prayer and has contended that the controversy has been settled in Writ Petition No.15306/2021 considering all the grounds, which have been raised by the petitioner. It is argued that the transfer order was passed on 31.08.2021 and the petitioner must have been relieved till date. No document has been filed by the petitioner pointing out that he is still working at the present place of posting i.e. Gram Panchayat Kanchanpuri, Block Shahpura, District Jabalpur. The other grounds, which have been raised by the petitioner are the personal inconvenience, which could not be considered for interference in the transfer order. Petitioner has not made any submission with respect to the fact that he has not been relieved till date. It is only pointed out that no one has been posted in place of the petitioner; therefore, he has prayed for interim relief in the matter till the decision on the representation. He has placed reliance on the judgments of 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 and Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R (2015) MP 2556; wherein the guidelines have been issued with respect to the ground on which the interference in the transfer order can be made. None of the grounds are available to the petitioner. In such circumstances, only relief, which can be granted to him is to direct to the authorities to consider and decide the pending representation at the earliest.

Heard the learned counsels for the parties and perused the record. From the perusal of the record, it is seen that the petitioner is

Signature Not transferred from Gram Panchayat Kanchanpuri, Block Shahpura, District SAN Verified

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:05 IST 3 WP-18540-2021 Jabalpur to Gram Panchayat Sukha, Janpad Panchayat Panagar, District Jabalpur on administration grounds. The law with respect to transfer of an employee is settled in the case of R.S. Chaudhary Vs. State of M.P. and others reported in ILR (2007) MP 1329; wherein, it is 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, o r 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".

From the perusal of the memorandum of writ petition, it is seen that there is no averment with respect to the fact that the petitioner has not been relieved till date. It is mentioned that nobody has joined in place of the petitioner. The petition was filed on 07.09.2021 and till date much water has been flown. The petitioner has already preferred a detailed representation to the respondents/authorities. In such circumstances, the only relief which can be extended is to direct the authorities to consider and decide the pending representation within the stipulated time frame. As far as the identical relief is concerned, the petitioner could not point out that he has not been relieved till date. In such circumstances, there is no question of granting interim relief to the petitioner in the matter as the transfer order was passed on 31.08.2021.

In the facts and circumstances of the present case and also considering Signature SAN Not Verified the judgments passed by the Division Bench in the case of R.S.Chaudhary Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:05 IST 4 WP-18540-2021

(supra) and Mridul Kumar Sharma (supra), petition is disposed of with a direction to the petitioner to file a fresh representation to the respondents no.3 and 4 and in case such a representation is filed the authorities are directed to dwell upon the same and pass a self contained speaking order within a period of 30 days from the date of receipt of certified copy of this order and communicate the outcome to the petitioner.

Needless to mention that this Court has not expressed any opinion on the merits of the case.

Accordingly, the petition is disposed of.

Certified copy as per rules.

                                                                                (VISHAL MISHRA)
                                                                                     JUDGE


                      taj




Signature
 SAN      Not
Verified

Digitally signed by
TAJAMMUL
HUSSAIN KHAN
Date: 2021.09.24
11:06:05 IST