Mor Singh Nagar vs The State Of Madhya Pradesh
2022 Latest Caselaw 42 MP

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  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                        W.A. No.1193/2021
Appellant:       Mor Singh Nagar
                 S/o Late Devchand Nagar, aged about 50 years,
                 Occupation- Panchayat Secretary, R/o Village
                 Lasudia Post Lashkarpur, Tehsil Narsingarh
                 District Rajgarh, M.P.

        Versus

Respondents       1.    The State of M.P.
                        through Principal Secretary, Department of
                        Social Justice and Welfare Vallabh Bhawan,
                        Bhopal, M.P.
                 2.     The Director, Panchayat Raj Sanchanalaya,
                        Bhopal, M.P.
                 3.     Chief Executive Officer, Rajgarh,
                        Jila Panchayat, Rajgarh,
                        District Rajgarh
                 4.     Chief Executive Officer, Narsingarh,
                        Janpad Panchayat       Narsingarh
                        District Rajgarh, M.P.
                 5.     Rajendra Singh Chouhan,
                        aged about adult-
                        Occupation Panchayat Secretary,
                        R/o Village Tareni Dhakad, Janpad
                        Panchayat Narsingarh District Rajgarh,
                        M.P.
                                      **********

Date: 03.01.2022 :

Shri Jitendra Verma learned counsel for the appellant. Shri Shrey Raj Saxena learned Deputy Advocate General for the respondent/State.

Heard on the question of admission and interim relief The appellant/writ petitioner has filed this writ appeal against the order dated 20.09.2021 passed by Writ Court whereby Writ Petition No.11956/2021 has been dismissed.

The facts of the case in short are as under:

The appellant is working as Secretary of Gram Panchayat. Vide order dated 27.01.2021 issued by Directorate of Panchayat, he was

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transferred from Gram Panchayat Vihar to Gram Panchayat Palkhedi. Thereafter vide impugned order dated 02.07.2021, he has been transferred from Gram Panchayat Palkhedi to Gram Panchayat Kunwar Kotri and in his place, respondent No.5-Rajendra Singh Chouhan has been transferred from Gram Panchayat Tareni to Gram Panchayat Palkhedi. The appellant has filed a writ petition against his transfer inter alia on the ground that he is a victim of frequent transfer as within a period of six months he has been transferred twice in order to accommodate respondent No.5. The appellant has also assailed the transfer order on the ground that he being a Panchayat Secretary is under the administrative control of Jila Panchayat therefore, the CEO of Jila Panchayat is competent authority to transfer him. Hence, respondent No.2 has no authority to issue a transfer order hence same is liable to be set aside.

The Writ Court has dismissed the writ petition by assigning the reason that the Director Panchayat has overall control over the employees serving in Panchayat and earlier order of transfer of the petitioner was also issued by the Director of Panchayat. Learned Writ Court has also distinguished the order passed by the Division Bench in W.A. No.31/2021 (Bharat Singh Yadav Vs. State of Madhya Pradesh and others) on which learned counsel has placed heavy reliance. Hence, this writ appeal before this Court.

Learned counsel for the appellant has placed reliance on the judgment passed by Division Bench in the case of Bharat Singh Yadav (Supra) in which transfer order issued by the Director of Panchayat has been set aside. He further submitted that in view of clause 5 of the transfer policy dated 24.06.2021 in case of class-III and Class-VI, the order of transfer shall be issued by District Collector after approval by the in-charge Minister. He further

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submitted that the transfer order suffers from malafide because the petitioner has been transferred in order to accommodate respondent No.5.

Shri Saxena, learned Deputy Advocate General appearing on behalf of the respondent/State has argued in support of order passed by writ Court and prayed for dismissal of writ appeal. In support of his contention, he has placed reliance on the judgment passed by the Division Bench of this Court in the case of Rajendra Prasad Mishra Vs. State of M.P. and others (W.A. No.1458/2019). The appellant came to the present place of posting by order dated 27.01.2021 issued by Director Panchayat Raj at that time, the petitioner did not challenge the authority of the Director to pass an order and now when the same authority has issued a transfer order which is not suitable to him, he is challenging the competence of the Director. The Division Bench in the case of Rajendra Prasad Mishra (Supra) has held that when the transfer was conducive to the petitioner, he complied and when it was not conducive, he is raising all hue and cry.

We have heard the learned counsel for the parties at length and perused the record of the case.

So far as applicability of the judgment passed by Division Bench of this Court passed in case of Bharat (Supra) is concerned, in the said case the Gram Panchayat Secretary was transferred out of District. The Division Bench has held that the Panchayat Secretary is a district level cadre post and appointing authority is CEO, Zila Panchayat therefore, he cannot transfer out of district accordingly same was set aside but in the present case, the petitioner has been transferred from one Gram Panchayat to another Gram Panchayat which is situated within the same Janpad Panchayat and District. So

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far allegation of the appellant is that he has been transferred malafidely, the law in respect of allegation is very clear, if the petitioner is alleging malafide against the Director then Director ought to have been impleaded by name in the writ petition. In his absence plea of malafide cannot be examined. Even otherwise the transfer is an incident of service unless the transfer order is affecting the service condition and suffers from malafide, it is not for High Court to entertain. The Apex Court in case of Union of India and others Vs. S.L. Abbas (1993) 4 SCC 357 has held as under:

"An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force."

The scope of interference by the High Court in a writ petition filed under Article 226 of the Constitution of India is very limited. The Apex Court in case of State of U.P. and another v. Siya Ram and another [(2004) 7 SCC 405], the Supreme Court has held that unless an order of transfer is shown to be an outcome of mala fide exercise or in violation of statutory provisions prohibiting any such transfer, the Courts or Tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision. The relevant extract from the judgment read as under :

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"5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such order as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. (2001 (8) SCC 575)"

[Emphasis Supplied] In view of the above, we do not find any ground to interfere with the impugned order as well as the transfer order of the petitioner. The Writ Appeal is hereby dismissed.

Certified Copy as per Rules.

             VIVEK RUSIA                          RAJENDRA KUMAR (VERMA)
                JUDGE                                       JUDGE



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2022.01.05 15:32:40
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