Dashrath Dhurve vs The State Of Madhya Pradesh
2021 Latest Caselaw 5905 MP

             THE HIGH COURT OF MADHYA PRADESH

                        Writ Petition No.18757 of 2021
         (Dashrath Dhurve Vs. The State of Madhya Pradesh and others)

Jabalpur, Dated : 23.09.2021

      Shri Rajnish Pandey, learned counsel for the petitioner.

      Shri Ayur Jain, learned panel lawyer for the respondents/State.

Challenge is being made to transfer order dated 31.08.2021 passed by

the respondent No.3 whereby the petitioner has been transferred from

Government Middle School, Banspur, Block Ghodadongari, District Betul to

Government Primary School Khurda, Block Bhimpur, District Betul at a

distance of 150 Kms.

It is submitted by the learned counsel for the petitioner that the

petitioner is an office bearer and is appointed as District Branch Secretary of

M.P. Anusuchit Jati-Janjati Adhikari Evam Karmchari Sangh and in terms of

Clause 33 of the Transfer Policy dated 24.06.2021 relaxation in transfer to

such office bearer has been given. The petitioner could not have been

transferred atleast for a period of four years. The other ground which has

been taken that the petitioner has been detected Covid Positive in May,

2021, therefore, the transfer of the petitioner is again violative of Clause 24

of the Transfer Policy. The wife of the petitioner is a Government servant

and is working at the same place and in terms of Clause 23 of the Transfer

Policy the husband and wife who are Government servant should generally

be posted at the same place or nearby place, therefore, the transfer order is

again violative of Clause 23 of the transfer policy. It is submitted that a

detailed representation has been submitted to the respondent No.3 pointing

out all the deficiencies in the transfer order, but the same is kept pending and has not been decided till date.

An innocuous prayer is made to direct the respondent No.3 to consider

and decide the pending representation at an early date and till the decision on

representation he 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 transfer being a condition of service and the Government

employee is duty bound to comply with the transfer order. The factum of

transferring of an office bearer was considered by this Court in Writ

Petition No.17800/2021 (Balram Dhakar Vs. State of M.P. and others)

and decided on 09.09.2021 and the petition got dismissed.

Learned counsel for the petitioner could not distinguish the judgment

passed in the case of Balram Dhakar (supra), therefore, this ground is of no

help to the petitioner. As far as violation of clauses of transfer policy is

concerned, the law is settled by the Division Bench of this Court in the case

of R.S.Choudhary Vs. State of M.P. and others reported in ILR (2007)

MP 1329 and Mridul Kumar Sharma Vs. State of M.P. reported in ILR

(2015) MP 2556, wherein the Division Bench of this Court has held that the

only remedy against the violation of the terms of the transfer policy is to get

the representation decided. It is submitted that the representation of the

petitioner will be considered and decided expeditiously.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the petitioner has been

transferred at a short distance of 150 kms from Government Middle School,

Banspur, Block Ghodadongari, District Betul to Government Primary School Khurda, Block Bhimpur, District Betul. The ground that the petitioner is an

office bearer was considered in the case of Balram Dhakar (supra) whereby

the writ petition was dismissed and no writ appeal has been preferred against

the same, therefore, the same has attained finality.

The counsel for the petitioner could not distinguish the aforesaid

judgment and could not point out that the petitioner is an elected office

bearer or a nominated office bearer. As far as other grounds are concerned,

they are with respect to violation of clauses of transfer policy, for which only

remedy available to the petitioner is to get the representation decided in

terms of the judgment of Division Bench of this Court in the case of

R.S.Choudhary Vs. State of M.P. and others reported in ILR (2007) MP

1329 and Mridul Kumar Sharma Vs. State of M.P. reported in ILR (2015)

MP 2556.

The Division Bench of this Court in the case of R.S.Chaudhary

(supra) 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 (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 interim relief can be granted to the

petitioner and the only remedy available to the petitioner is to file a

representation to the respondents/Authorities and get the representation

decided. In such circumstances, this Court deems it appropriate to dispose of

this petition with a direction to the petitioner to file a fresh representation to the respondent No.3 within seven days and in case such a representation is

preferred, the respondent No.3 is directed to dwell upon the representation

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 here that this Court has not commented upon the

merits of the case.

With the aforesaid observations, this petition is disposed of.

(Vishal Mishra) Judge

AM.

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.09.24 11:20:36 +05'30'