Madhya Pradesh High Court
Sonam Bhadauria vs The State Of Madhya Pradesh on 3 November, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF NOVEMBER, 2022
WRIT PETITION NO.23967 OF 2022
Between:-
SONAM BHADAURIA W/O
SANDEEP SINGH TOMAR, AGE 30
YEARS, OCCUPATION: PATWARI,
R/O ASHOK NAGAR COLONY,
ATER ROAD, WARD NO.38
DISTRICT BHIND (MADHYA
PRADESH)
........PETITIONER
(BY SHRI NAVNIDHI PARHARYA - ADVOCATE )
AND
1. PRINCIPAL SECRETARY REVENUE
DEPARTMENT, VALLABH BHAWAN
BHOPAL DISTRICT BHOPAL
(MADHYA PRADESH)
2. COLLECTOR (LAND RECORDS)
DISTRICT BHIND (MADHYA
PRADESH)
3. SUB-DIVISIONAL OFFICER BHIND
DISTRICT BHIND (MADHYA
PRADESH)
4. TEHSILDAR BHIND DISTRICT
2
BHIND (MADHYA PRADESH)
5. TEHSILDAAR GOHAD DISTRICT
BHIND (MADHYA PRADESH)
........RESPONDENTS
(BY SHRI DEVENDRA CHAUBEY - GOVERNMENT
ADVOCATE )
----------------------------------------------------------------------------------------
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 reliefs:
1) The impugned order Annex. P-1, so far it relate to
transfer of petitioner of may kindly be quashed.
2) Any other relief which this Hon'ble High court
deems fit in the fact and circumstances of the case
may kindly be awarded.
3) Cost of the petition may kindly be awarded.
It is submitted by the counsel for the petitioner that by impugned
order dated 5.10.2022 the petitioner who is working on the post of
Patwari has been transferred from Tehsil Bhind to Tehsil Gohad on
administrative exigency. The husband of the petitioner is also working on
the post of Patwari and is also posted in Tehsil Bhind. As per clause 23 of
the transfer policy, the husband and wife should be kept at the same
place. Thus, the impugned transfer order is in-violation of clause 23 of
the transfer policy. It is further submitted that the daughter of the
petitioner is studying in LKG and, therefore, the mid session transfer of
the petitioner would adversely effect the studies of her daughter.
Per contra, the petition is vehemently opposed by the counsel for
the respondent/State. It is submitted that the employee has no right to
claim that he or she should be posted at a particular place. Transfer is an
exigency of service and unless and until the transfer order is a product of
malafide exercise of powers under Article 226 of the Constitution of
India, the same cannot be interfered with.
Heard the learned counsel for the parties.
It is well established principle of law that transfer policy is not
enforceable by law. Even otherwise clause 23 of the transfer policy reads
as under:
^^23- ifr&iRuh ds Lo;a ds O;; ij gh lkFk inLFkkiuk
ds fy, vkosnu i= izkIr gksus ij LFkkukarj.k fd;k tk
ldsxk] ijUrq inLFkkiuk dk LFkku iz'kkldh; vko';drk
ds vuq:i fu/kkZfjr gksxkA bldk vk'k; ;g ugha gS fd
[email protected] ;fn ,d gh [email protected][;ky; esa dk;Zjr gksa rks
mudk LFkkukUrj.k ugha fd;k tk ldrk gSA^^
From the plain reading of clause 23 of the transfer policy, it is clear
that in case if a spouse makes an application for his/her transfer to a
place where his/her spouse is posted, then the same can be considered in
the light of administrative requirements. However, a specific rider has
been mentioned in the clause itself that the said facility would not mean
that the husband and wife posted in the same district/headquarters cannot
be transferred at all.
In the present case, the petitioner has been transferred to Tehsil
Bhind to Tehsil Gohad within the district of Bhind itself. Since the
transfer is not outside district or headquarters, then it cannot be said that
the order under challenge is violative of clause 23 of the transfer policy.
Even otherwise, in absence of any bar on transfer of an employee having
his/her working spouse, the transfer order cannot be interfered.
So far as the mid session transfer of the petitioner is concerned,
according to the petitioner her minor daughter is studying in LKG. By no
stretch of imagination it can be said that the transfer of the petitioner
would adversely effect the studies of the daughter of the petitioner.
Further, the counsel for the petitioner fairly conceded that the
petitioner has served more than three years of her service at the present
place of posting.
Since the transfer is an exigency of service and no malafides have
been alleged coupled with the fact that although the transfer policy is not
enforceable by law still the petitioner has failed to prima facie bring her
case within the purview of clause 23 of the transfer policy, no case is
made out for interfering in the matter.
At this stage, it is submitted by the counsel for the petitioner that
the petitioner has made a representation which is still pending and,
therefore, the respondents may be directed to decide the same.
Considered the submissions made by the counsel for the petitioner.
In the light of the judgment passed by the Division Bench of this
Court in the case of Mridul Kumar Sharma vs. State of M.P. reported
in ILR (2015) MP 2556, according to which the direction to decide the
representation cannot be issued unless and until the employee joins at his
transferred place, therefore, it is directed that in case if the petitioner
after submitting her joining at the transferred place submits a
supplementary representation along with certified copy of this order, then
the said representation shall be considered by the respondents without
getting influenced or prejudiced by this order and the representation shall
be decided strictly in accordance with law.
With aforesaid observation, the petition is finally disposed of.
(G.S. AHLUWALIA)
JUDGE
(alok)
ALOK KUMAR
2022.11.03 17:09:11 +05'30'
