Madhya Pradesh High Court
Smt. Pushplata Sharma vs The State Of Madhya Pradesh on 28 September, 2021
Author: Vishal Mishra
1 WP-19463-2021
The High Court Of Madhya Pradesh
WP-19463-2021
(SMT. PUSHPLATA SHARMA Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, Dated : 28-09-2021
Heard through Video Conferencing.
Shri Rajesh Dubey, learned counsel for the petitioner.
Shri Sheetal Tiwari, learned Panel Lawyer for the respondents/State.
Challenge being made to transfer order dated 30.08.2021(Annexure
P/1) whereby, the petitioner has been transferred from the post of
Govt.H.S.S.Chourai to Govt.M.S.Chhui, Block-Amarwada, District
Chhindwara (M.P.) at a distance of 100 Kms.
It is submitted that the contravention to the provision of RTE Act,
2009 where the teachers-students ratio has not been maintained. It is further
pointed out that the petitioner has been detected corona positive and was in a
pathetic condition inspite of all precautions taken by him. Petitioner is a
Sanskrit teacher and no alternative teacher is posted in place of the petitioner.
There are 1047 students against 13 teachers and subject wise are posted and
transferring the petitioner who is a Sanskrit teacher will be again violation of
RTE Act, 2009. It is further pointed out that the petitioner has undergone
angiography and heart surgery and stan has been planted which is reflected
from the medical documents. In such circumstances, petitioner has already
preferred a detailed representation before respondent no.3/District Education
Officer on 07.09.2021 and the same is kept pending for consideration and not
yet been decided till date. Even the Principal of the School has given a
certificate and recommended for cancellation of her transfer order. It is
submitted that nobody has been transferred and posted in place of the
petitioner and she has not been relieved till date. An innocuous prayer is made
to direct the respondent authorities to consider and decide the pending
representation of the petitioner within a short time and petitioner may be
Signature Not permitted to continue at the present place of posting till the decision on the
SAN
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.29
10:31:20 IST
2 WP-19463-2021
representation.
Learned counsel appearing for the respondents opposed the prayer
stating that the petitioner is duty bound and has to comply with the transfer
order. As far as violation of RTE Act is concerned, petitioner could not
establish the aforesaid aspect that whether anybody else has been posted in
place of the petitioner or not or it is a solitary ground of the transfer of the
petitioner. As far as medical ground is concerned, no medical emergency
could be pointed out by the petitioner therefore, warranting no interference in
the transfer order. The distance of transferred place of posting of the
petitioner is at a short distance of 100 Kms. Violation of Transfer Policy
could be pointed out by the petitioner calling interference in the transfer order
in view of the judgments passed by the Division Bench 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. It is submitted that the only
remedy available to the petitioner is that the representation may be filed by the
petitioner respondent authorities be directed to be considered and decided
her pending representation. It is submitted that the representation will be
considered and decided within 15 days.
Heard learned counsel for the parties and perused the record.
On perusal of the record, it is seen that the petitioner has been
transferred to the same district within a short distance of 100 Kms. It is
specifically stated by the counsel for the petitioner that she is working at the
present place of posting from the last 4-5 years that means she has completed
the normal tenure at the present place of posting. The medical documents
pointing out the medical emergency has been filed along with the petition and
the other grounds are general grounds for violation of transfer policy for
which judgment in the case of R.S.Chaudhary Vs. State of M.P. and
others reported in ILR (2007) MP 1329 wherein the Court has held as
under :-
Signature
SAN Not
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.29
10:31:20 IST
3 WP-19463-2021
"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".
In such circumstances, no interim relief can be extended to the
petitioner. The only relief which can be given is to direct the petitioner to file a
fresh representation before 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 here that this Court has not commented upon the
merits of the case.
With the aforesaid, this petition stands disposed of.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
Sha
Signature
SAN Not
Verified
Digitally signed by
SMT SHALINI
SINGH LANDGE
Date: 2021.09.29
10:31:20 IST
