Smt.Preeti Sahu vs The State Of Madhya Pradesh
2022 Latest Caselaw 447 MP

                                   1                                WP-529-2022
        The High Court Of Madhya Pradesh
                  WP No. 529 of 2022
           (SMT.PREETI SAHU Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Jabalpur, Dated : 10-01-2022
      Heard through Video Conferencing.

      Mr. Utkarsh Agrawal, learned counsel for the petitioner.
      Mr. Adamya Bajpai, learned Panel Lawyer for the State.
      The present petition has been filed by the petitioner herein who is
challenging her transfer order dated 18.12.2021 (Annexure P/1) and the
consequential order dated 21.12.2021 (Annexure P/2) whereby she was

directed to take charge at the place of her posting.
      The petitioner is a Panchayat Secretary. She was transferred from
Gram Panchayat, Jhapiya to Gram Panchayat, Iklamasani, both falling under
Janpad Panchayat, Junnardeo, district Chhindwara.
      Learned counsel for the petitioner has drawn the attention of this court
to Annexure P/1 by which the petitioner and several others who are similarly
situated were transferred from one gram panchayat to another. The said order
reflects that the transfer orders were passed in view of the order dated
6.12.2021

passed by the Election Commission whereby such Panchayat

Secretaries who either were serving in their home villages or who have already completed three years of posting in a particular gram panchayat to be moved out from there to any other gram panchayat. The purpose of this direction by the State Election Commission was to ensure that the election process is not influenced by extraneous forces.

Learned counsel for the petitioner thereafter argues that by subsequent order, the State of Madhya Pradesh has cancelled the panchayat elections itself. Under the circumstances, the order of the Election Commission to the State Government on the basis of which these transfers are effected itself lost its fundamental basis.

Learned counsel for the petitioner has also referred to the transfer policy with specific reference to Clause 9 which required that except for the 2 WP-529-2022 months mentioned in Clause 4, transfers shall not be effected during the remaining months of the year. Clause 4 says that transfers can be made from 1st July 2021 to 31st July 2021.

Learned counsel for the petitioner has also relied upon the judgment of the Supreme Court in Somesh Tiwari v. Union of India and others (2009) 2 SCC 592. In that case, the Supreme Court laid down the scope of judicial

review in cases relating to transfers of employees. But for a malafide exercise of power whereby the transfer appears to be on punitive grounds, or non- application of mind to relevant facts, the transfer order could not be interfered with. However, if there was a malafide exercise of power or if it appeared to the court that the transfer itself is punitive and there was no application to relevant facts, the order could be interfered with. The Supreme Court also held that an order of transfer being an administrative order could not ordinarily be interfered with except in the case of malafide whether it be a malice in fact or a malice in law. In that case before the Supreme Court, it was held that the order in question was an instance of malice in law as it was not based on any factor germane to passing of an order of transfer.

In this particular case, no malice in fact has been alleged against anyone in particular. The question of malice in law does not arise as the order of transfer was in compliance of the directive issued by the Election Commission of India. That directive issued by the Election Commission of India was never withdrawn. It still remains in force. However, the elections to the panchayat itself was cancelled by the State Government. Therefore, the impugned order by itself is not an instance of malice in law as the same was passed in compliance and obedience to the order passed by the Election Commission.

As regards the second aspect where there is an embargo of transfer as per Clause 9 of the transfer policy whereby in the light of Clause 4 transfers could be effected only between 1st July 2021 and 31st July 2021, is also not acceptable as firstly, the same is only a transfer policy and does not invest the 3 WP-529-2022 petitioner with a legal right. Secondly, it will not be applicable in the facts and circumstances of the present case as the State Government was bound to comply with the directions issued by the Election Commission. Therefore, as the impugned order was passed by the State Government in compliance of the directives of the Election Commission, the so-called embargo placed on transfers in Clause 4 of the transfer policy will not come into play. The cancellation of the elections by itself does not render the impugned order bad in law. As the date on which it was passed, it was perfectly legal being passed in compliance of the Election Commission's directive which the State was bound to pass under the law.

Therefore, in view of the above, the petition is unsustainable. It is

dismissed.

(ATUL SREEDHARAN) JUDGE

ps

PRASHANT SHRIVASTAVA 2022.01.11 14:45:07 +05'30'