Madhya Pradesh High Court
Rambharose Gautam vs The State Of Madhya Pradesh on 21 September, 2021
Author: Vishal Mishra
1 WP-19514-2021
The High Court Of Madhya Pradesh
WP-19514-2021
(RAMBHAROSE GAUTAM Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 21-09-2021
Heard through Video Conferencing.
Shri Rajesh Dubey, learned counsel for the petitioner.
Shri Vivek Sharma, learned Deputy Advocate General for the
respondents/State.
Challenge is being made to transfer order dated 26.08.2021 (Annexure-
P-1) passed by respondent No.3 whereby, the petitioner has been transferred
from Govt. P.S. Baherwah, Block - Karkeli to Govt. P.S. Dithouri, District
Umariya just contrary to the provisions of RTE Act, 2009 which is at a
distance of approximately 50 kms.
Learned counsel for the petitioner submitted that the impugned transfer
order is contrary to the statutory provision of RTE Act, 2009. It is submitted
that against 95 students, four teachers are posted out of which two teachers
has already been transferred, therefore, the petitioner is not in surplus and his
transfer is in gross violation of the RTE Act. it is submitted that the parents of
the petitioner is old aged and no one else is there in the family of the petitioner
and the petitioner has been transferred at a distant place of 50 Kms. It is
submitted that the petitioner has already submitted a detailed representation to
respondent No.3 but the same is kept pending and not yet decided till date. It
is submitted that no one has joined in the transferred place and it is lying
vacant. In such circumstances, interference in transfer order is prayed for. It
is prayed that the authorities be directed to decide the pending representation
in fixed time and till the decision on the representation, the petitioner may be
permitted to continue at the present place of posting.
Per contra, learned counsel for the State has opposed the prayer and
submitted that the petitioner has been transferred to a distance of 50 Kms. It
is argued that the transfer is a condition of service therefore, no interference is
Signature Not
SAN
Verified warranted. He has placed reliance on the judgment passed by the Division
Digitally signed by
ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.22
11:19:42 IST
2 WP-19514-2021
Bench of this Court in the case of R.S. Chaudhary and Others v. State of
M.P. and Others, 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
and has submitted that the only remedy available to the petitioner is to file a
representation before the competent authority for redressal of his grievances.
He has prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the record.
O n perusal of the record, it is seen that that the petitioner has been
transferred to a distant place of 50 Kms and the transfer is a condition of
service. 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,
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".
Considering the overall facts and circumstances of the case, as well as
the law laid down in the aforesaid cases, this Court deems it appropriate to
dispose of this writ petition with a direction to the petitioner to resubmit a
Signature
SAN Not
Verified
Digitally signed by
ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.22
11:19:42 IST
3 WP-19514-2021
fresh representation to the respondent No.3 within a period of seven days and
in turn the respondents No.3 is directed to dwell upon the representation and
pass a self contained speaking order within a period of 15 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.
(VISHAL MISHRA)
JUDGE
AM
Signature
SAN Not
Verified
Digitally signed by
ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.22
11:19:42 IST
