Smt. Sushma Bhidoriya vs The State Of Madhya Pradesh
2022 Latest Caselaw 14065 MP

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            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                                       BEFORE
           HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                        ON THE 1st OF NOVEMBER, 2022

                       WRIT PETITION NO. 24272 OF 2022

       BETWEEN:-

       SMT. SUSHMA BHIDORIYA, AGED
       ABOUT 30 YEARS, W/O SHRI SOBRAN
       SINGH ADIWASI, OCCUPATION SOCIAL
       SECURITY DEVELOPMENT OFFICER,
       POSTED IN JANPAD PANCHAYAT GUNA,
       DISTRICT GUNA (MADHYA PRADESH)
                                                                   ........PETITIONER

       (BY SHRI S.S. TOMAR - ADVOCATE)

       AND

1.     THE STATE OF MADHYA PRADESH
       THROUGH PRINCIPAL SECRETARY,
       SOCIAL JUSTICE AND DISABLITY
       WELFARE DEPARTMENT, VALLABH
       BHAWAN, BHOPAL (MADHYA PRADESH)

2.     THE CHIEF EXECUTIVE OFFICER,
       JANPAD PANCHAYAT GUNA, DISTRICT
       GUNA (MADHYA PRADESH)

                                                                ........RESPONDENTS

       (SHRI G.K. AGRAWAL - GOVERNMENT ADVOCATE FOR STATE)
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       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has

been filed seeking following relief.

(i) That, the impugned order dated 05.10.2022 (Annexure P/1) be directed to be quashed and set aside.

(ii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted.

It is submitted by the counsel for the petitioner that by the impugned order dated 05.10.2022 she has been transferred from Guna to Agar Malwa. On 03.09.2021 she was relieved to join at her transferred place, i.e., Janpad Panchayat, Guna as she was transferred on his own request. Husband of the petitioner is working as a Constable and is posted in Guna. As per Clause 23 of the Transfer Policy, husband and wife should be posted in one District or Headquarter and, therefore, the transfer of the petitioner is bad on the said ground also. It is further submitted that the petitioner has two children namely Harshit aged about 4 years and Ku. Jagrati aged about 2 ½ years and without assistance of husband of the petitioner, it is not possible for the petitioner to maintain her family while working at Agar Malwa. The petitioner has also made a representation, which is still pending and, therefore, the petitioner can be relieved at any point of time and, accordingly, the transfer order may be quashed.

Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that the transfer is an exigency of service and no one can claim that he / she should be posted at a particular place. No malafides have been alleged.

Heard the learned counsel for the parties.

First ground for challenging the transfer order dated 05.10.2022 is that the same is frequent in nature. From order dated 03.09.2021, it is

clear that the petitioner was transferred to Janpad Panchayat, Guna on her own request. The transfer on the request of the employee cannot be treated as transfer for the purpose of ascertaining as to whether the impugned order is bad because of frequent in nature or not, therefore, it cannot be said that the impugned order suffers from malafides being frequent in nature.

So far as the husband of the petitioner is concerned, counsel for the the petitioner after taking instruction from the petitioner has fairly conceded that husband of the petitioner is posted as Constable in District Guna from 07.05.2011, i.e., from the date of his appointment. Thus, the husband of the petitioner has already spent a considerable long time of 11 years at Guna. Although the transfer policy is not enforceable by law, but as per Clause 23 of the Transfer Policy, an employee can make an application for his transfer to a place where his or her spouse is posted. Husband of the petitioner has already completed a long tenure of 11 years at Guna. In case, if he makes an application for transfer to a place, where the petitioner has been transferred, then it is expected that the competent authority shall consider his representation sympathetically. Furthermore, so far as the Clause 23 of the Transfer Policy is concerned, it is specifically mentioned in Clause 23 that posting of husband and wife in one District or Headquarter shall always be subject to administrative requirement and this clause does not mean that if the husband and wife is posted at the same District and Headquarter, then they cannot be transferred at all. Further, Clause 23 of the Transfer Policy merely provides for transfer of an employee on his own request to a place where his / her spouse is working. Furthermore, it is well established principle

of law that the transfer is an exigency of service and no one can claim that he should be posted at a particular place.

So far as the personal difficulties of the petitioner is concerned, this Court cannot act as an appellate authority and it is for the employer to look into that aspect. Accordingly, no case is made out for interference in the matter.

At this stage, it is submitted by the counsel for the petitioner that the petitioner has made a representation and, therefore, the respondents may be directed to decide the same.

In the light of the judgment passed by the Division Bench of this Court in the case of Mridul Kumar Sharma Vs. State of MP and others reported in ILR (2015) MP 2556, a liberty is granted to the petitioner that after submitting her joining at her transferred place, if she makes a fresh representation, then the same can be decided by the respondent by keeping the administrative requirement into consideration.

Needless to mention here that the liberty granted to the petitioner should not be construed as a direction to the respondent to accept the representation and the representation shall be decided strictly in accordance with law without getting influenced or prejudiced by this order.

Accordingly, the petition is finally dismissed.

(G.S. AHLUWALIA) JUDGE

Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.11.03 17:59:44 +05'30'