Madhya Pradesh High Court
Pramod Kumar Barman vs The State Of Madhya Pradesh on 27 September, 2021
Author: Vishal Mishra
1 WP-20512-2021
The High Court Of Madhya Pradesh
WP-20512-2021
(PRAMOD KUMAR BARMAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, Dated : 27-09-2021
Heard through Video Conferencing.
Shri R.B. Tiwari, learned counsel for the petitioner.
Shri Shivam Hazari, learned Panel Lawyer for the respondents/State.
Challenge being made to order dated 31.08.2021 (Annexure-P-1)
passed by the respondent No.4, whereby, the petitioner has been transferred
from Government Higher Secondary School, Newsapondi, District Dindori to
Government High School Madiyaras on the administrative ground.
It is submitted that the wife of the petitioner is also working in the
same school and transferring of the petitioner is violative of Clause 23 of the
transfer policy dated 24.6.2021. The Principal of the school has also
recommended for cancellation of petitioner's transfer pointing out that there
are less number of teacher working in the school and transferring the
petitioner will adversely effect the studies in the mid academic session of the
students. That the petitioner's wife has recently suffering from Covid -19
pandemic in the Month of May-2021 and he is required to take care of her,
therefore, transferring petitioner is again contrary to the relevant clauses of the
transfer policy. Counsel for the petitioner has placed reliance upon the order
passed by the co-ordinate bench of this court on W.P. No.17550/2021 and
W.P No.17655/2021 decided on 9.9.2021 wherein considering the similar
circumstances the interim relief was granted in favour of the petitioner. A
detailed representation has also been filed by the petitioner to the respondent
No.3 which is pending under consideration and has not been decided till date.
No body has been posted at the place of petitioner and petitioner is still
working and not relived till date. In such circumstances, an innocuous prayer
has been made to direct the respondent No.3 to consider and decide the
Signature Not pending representation of the petitioner at an early date and till then petitioner
SAN
Verified
Digitally signed by
MOHD IRFAN
SIDDIQUI
Date: 2021.09.28
12:18:22 IST
2 WP-20512-2021
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. 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. As far as violation of
transfer policy is concerned, the only only remedy available to the petitioner
to file the representation before the respondent authority and that could be be
considered and 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.
The law with respect to transfer is apparently clear as has been settled
by the Division Bench in the aforesaid cases whereas it has held as under:-
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.
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,
Signature
SAN Not o r cancellation of the transfer order. If the order of transfer is not stayed,
Verified modified, or cancelled the concerned public servant must carry out the order of
Digitally signed by
MOHD IRFAN
SIDDIQUI
Date: 2021.09.28
12:18:22 IST
3 WP-20512-2021
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".
The personal inconvenient which has been pointed out by the petitioner
as well as the violation of terms and conditions of transfer policy, therefore
only relief which can be granted to the petitioner is to direct the respondent
No.3 to decide the pending representation at an early date. As far the orders
passed by the co-ordinate bench is concerned, this court has bound by the
Division Bench of this Court in the case of R.S. Chaudhary (supra) and
Mridul Kumar Sharma (supra).
In such circumstances, 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
irfan
Signature
SAN Not
Verified
Digitally signed by
MOHD IRFAN
SIDDIQUI
Date: 2021.09.28
12:18:22 IST
