Mrs. Rekha Kamdar vs The State Of Madhya Pradesh
2021 Latest Caselaw 5789 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                     W. A. No. 820 / 2021
       MRS. REKHA KAMDAR Vs. STATE OF MP AND OTHERS
                                                         --- 1 ---
INDORE, Dated : 21/09/2021
     Heard through video conferencing.
     Mr. Lokesh Mehta, learned counsel for the petitioner.
     Mr. Vivek Dalal, learned Addl. Advocate General for
the respondent - State.

With consent finally heard.

This intra Court appeal assails the order dated 2/9/2021 passed in W.P.No. 16847/2021 whereby the challenge to transfer order is rejected by learned Single Judge.

Mr. Lokesh Mehta, learned counsel for the appellant submits that appellant is not transferred by impugned order dated 26/8/2021 on any administrative exigency or in public interest. Indeed, appellant is subjected to transfer because of a complaint of a Member of Legislative Assembly. Complaint dated 3/7/2021 (Annexure P/7) is relied upon. It is submitted that the said complaint was duly enquired into by a four member Committee and the allegations made in the complaint of MLA were found to be incorrect. Thus, the transfer order is passed on extraneous and incorrect reasons and, therefore, liable to be interfered with.

Learned Single Judge did not agree with the said contention and dismissed the petition.

This Court, finding a prima facie case entertained the Writ Appeal and passed an interim order on 13/9/2021 to protect the appellant. In the meantime, the Government counsel was directed to produce the original transfer file for HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W. A. No. 820 / 2021 MRS. REKHA KAMDAR Vs. STATE OF MP AND OTHERS

--- 2 ---

perusal of this Court.

In obedience of the order of the Court, Mr. Vivek Dalal, learned Addl. Advocate General produced the original transfer file for our perusal.

We have carefully gone through the transfer file which shows that a complaint of the MLA, on which heavy reliance is placed, is not the reason for transfer of the appellant. On the contrary, appellant is transferred on administrative grounds.

The transfer order can be interfered with if it violates any statutory provision (not Policy Guidelines), proved to be mala-fide, changes service condition of an employee to his detriment or passed by an incompetent authority. Alleging mala-fide is not sufficient. Person alleging mala-fide must establish it when there is a denial and when record shows otherwise. In cases of mala-fide, the person against whom malice is alleged must be impleaded eo nomine. [See: (2004) 12 SCC 390 (Midley Minerals India Ltd. Vs. State of Orissa and others); (1995) 2 SCC 570 (State of Punjab Vs. Chaman Lal Goyal); (2020) 3 SCC 86 (Rajneesh Khajuria Vs. Wockhardt Ltd.,) and Division Bench judgment of this Court reported in 2011 (3) MPHT 479 (Bhagwati Singh Verma Vs. State of M.P.).

Appellant has impleaded nobody by name. As noticed above, original record / transfer file shows that allegations of appellant that complaint of MLA became HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W. A. No. 820 / 2021 MRS. REKHA KAMDAR Vs. STATE OF MP AND OTHERS

--- 3 ---

the reason for transfer is not substantiated. Thus, allegation of mala-fides could not be established.

There exists no other ingredient on which interference can be made. Thus, interference is declined. We are only inclined to observe that if appellant prefers a representation before the transferring authority, the said authority shall consider and decide it by reasoned order, within 3 weeks. Outcome shall be communicated to the appellant.

Writ Appeal is disposed of.

Certified copy, as per Rules.

                  (SUJOY PAUL)                      (ANIL VERMA)
                    JUDGE                             JUDGE
     KR




Digitally signed by KAMAL RATHORE
Date: 2021.09.21 18:33:49 +05'30'