Madhya Pradesh High Court
Purshottam Patel vs The State Of Madhya Pradesh on 23 September, 2021
Author: Vishal Mishra
1 WP-19490-2021
The High Court Of Madhya Pradesh
WP-19490-2021
(PURSHOTTAM PATEL Vs THE STATE OF MADHYA PRADESH AND OTHERS)
2
Jabalpur, Dated : 23-09-2021
Heard through Video Conferencing.
Shri R.P.Dubey, learned counsel for the petitioner.
Shri Amit Pandey, learned Panel Lawyer for the respondents/State.
Challenge being made to order dated 30.08.2021 passed by the
respondents whereby, the petitioner has been transferred from Government
P.S.Palhari, Block-Chourai to Government P.S.Lilahi, Block-Pandurna,
District-Chhindwara (M.P.) at a distance of 107 Kms..
It is submitted that the transfer is contrary to the RTE Act, 2009 as
teachers and students ratio is not maintained by the authorities. There are only
four teachers working in the present school and after transfer of the petitioner
only three teacher will be remaining, therefore, Clause 8 of the RTE Act is
violated. It is pointed out that the mother of the petitioner is aged about 80
years and is suffering from cancer, medical document to the aforesaid has
been filed. It is further submitted that the petitioner is still working and
nobody has been posted in place of the petitioner. A detailed representation
has been filed by the petitioner to the respondent authorities and the same be
directed to be decided within a short time and till then petitioner may be
permitted to work at the present place of posting.
Per contra, counsel appearing for the State has opposed the prayer and
submits that transfer being the condition of the service and the petitioner is
duty bound to comply with the transfer order. It is solitary transfer order of
the petitioner, the Government must have passed some other orders
transferring and posting some other teachers in place of the petitioner but the
petitioner could not point out the main document that no other teacher has
been transferred or posted in his place. As far as violation of RTE Act is
Signature Not concerned, aforesaid aspect is of no benefit to the petitioner, as the petitioner
SAN
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.24
10:33:33 IST
2 WP-19490-2021
could not point out clearly, the aforesaid aspect in the writ petition that there
may be any other order or any other teacher has been transferred or posted in
place of the petitioner. As far as other grounds are concerned, there are only
personal inconveniences which could not be considered for grant of interim
relief in the matter. Ailment of aged mother is concerned, the medical
documents which have been filed are of the year, 2019, no current documents
are filed to point out the medical emergency in the matter. As far as
representation is concerned, that could be decided within a short period of
time. He has placed reliance upon the judgments passed 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.
Heard learned counsel for the parties and perused the record.
On perusal of the record, it is seen that the challenge to transfer order
is been made mainly on two grounds i.e. violation of condition of the RTE
Act and that he is having old aged ailing mother. As far as violation of RTE
Act is concerned no other documents could have been filed or demonstrated
by the petitioner or any other employee have been transferred or posted in his
place or not. No current medical documents pointing out the medical
emergency of his mother has been filed along with the petition. Therefore,
there is no medical emergency in the matter. As far as representation is
concerned, the authorities will consider and decide the same.
In view of the judgment passed by 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.
Signature Not
SAN
Verified State of M.P. Reported in I.L.R (2015) MP 2556, has held as under :
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.24
10:33:33 IST
3 WP-19490-2021
"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 view of the aforesaid, this Court deems it appropriate to dispose of
this writ petition with a direction to the petitioner to prefer a fresh
representation to respondent No.3 within a period of seven days and in case
such a representation is filed by the petitioner then respondent 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.
With the aforesaid observations, this petition is disposed of.
(VISHAL MISHRA)
JUDGE
Sha
Signature
SAN Not
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.24
10:33:33 IST
