Madhya Pradesh High Court
Ram Kishan Athiya vs The State Of Madhya Pradesh on 14 December, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 14 th OF DECEMBER, 2022
WRIT APPEAL No. 1551 of 2022
BETWEEN:-
RAM KISHAN ATHIYA, S/O SHRI JAY GOPAL ATHIYA,
AGED ABOUT 35 YEARS, OCCUPATION: PATWARI, R/O
TIRUPATI COLONY, TILI WARD, SAGAR, DISTRICT
SAGAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI NEERAJ JAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
THE PRINCIPAL SECRETARY, DEPARTMENT OF
LAND AND REVENUE, VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR, S A G A R , DISTRICT SAGAR
(MADHYA PRADESH)
3. ADDITIONAL COLLECTOR, S A G A R , DISTRICT
SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. JANHAVI PANDIT - DEPUTY ADVOCATE GENERAL)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Aggrieved by the order dated 16.11.2022 passed by the learned Single
Judge in dismissing the Writ Petition No.26192 of 2022, the writ petitioner is in
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
appeal.
2. The case of the writ petitioner is that he is working on the post of Patwari
and posted in Tahsil Sagar. He was subjected to transfer from Tahsil Sagar to
Tahsil Malthone vide order dated 04.10.2022 on administrative ground. The writ
petitioner has lodged an FIR bearing Crime No.71/2017 registered at Police
Station Badri, District Sagar wherein he alleged that one Gautam Singh Dangi to
deter him from discharging his official duties as Patwari has assaulted him. The
writ petitioner was earlier posted at Malthone where the said incident had taken
place. In this background, it is urged that if he is posted back to Malthone, the
accused, who nurses a grudge against him, would interfere in discharging his
official duties again, which shall adversely affect his right to life and personal
liberty.
3. It is argued that the writ petitioner is a President of Tahsil Working
Committee of APAX and as per transfer policy a candidate who is member of
working committee of APAX cannot be transferred. The writ petitioner
submitted his representation but to no avail and the learned Single Judge has not
taken into consideration the aforesaid aspect of the matter and has dismissed
the writ petition.
4. Per contra, learned counsel appearing for the State has supported the
impugned order and has submitted that the writ petitioner was transferred in
October, 2022 and he has not joined at the transferred place till date. Transfer is
a condition of service and the petitioner is duty bound to comply with the
transfer order. Interference in the transfer order can only be made in specific
circumstances as has been held by Hon'ble Supreme Court in large number of
cases. In such circumstances, the writ petitioner is left with no other option but
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
to join at the transferred place. He prays for dismissal of the writ appeal.
5. Heard the learned counsel for the parties and perused the record.
6. After hearing the counsel for the petitioner and on perusal of the record it is
seen that no relief can be extended to the writ petitioner for the reason that no
ground for interference is made out by the writ petitioner. He has been working
at the present place of posting since the year 2017 that is for a continuous
period of five years. Now he has been transferred at a short distance of 50-60
kilometers in the same District. Merely on the ground that a criminal case was
registered five years back and the trial is pending consideration cannot be a
ground for cancellation of the transfer order. Even otherwise the Writ Court has
observed that at the trial the statements of witnesses have been recorded in the
pending trial and the same is at the verge of its conclusion. No document has
been shown by the writ petitioner to demonstrate that any adverse
circumstances are still prevailing at the transferred place. Transfer being a
condition of service can only be interfered in exceptional circumstances, as has
been held by the Hon'ble Supreme Court in the cases of Union of India and
others Vs. S.L. Abbas reported in AIR 1993 SC 2444; S.K. Nausad Rahaman
and others Vs. Union of India and others reported in 2022(2) JLJ 147; Gujrat
Electricity Board and another Vs. Atmaram Sungomal Poshani reported in
(1989) 2 SCC 602 and in the case of State of U.P. and another Vs. Siya Ram
and another reported in (2004) 7 SCC 405. In absence of any cogent ground,
no relief can be extended to the writ petitioner. The Writ Court has rightly
appreciated the aforesaid aspect of the case.
7. At this stage counsel for the writ petitioner submits that the petitioner may
be transferred at any other place within the District and the petitioner is ready to
comply with the transfer order. However, such relief can only be considered by
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
the respondents department on the representation preferred by the writ
petitioner but for the consideration of the representation the writ petitioner is
required to join at the transferred place of posting in pursuance to the judgment
passed by the Division Bench of this Court in the case of Mridul Kumar Sharma
Vs. State of M.P. reported in I.L.R (2015) MP 2556 and 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 undertakings 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."
8. Under these circumstances, no relief can be extended to the writ petitioner
in this writ appeal.
9. The writ appeal sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
