Suresh Kumar Saxena vs The State Of Madhya Pradesh
2022 Latest Caselaw 14629 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                           BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                 ON THE 11th OF NOVEMBER 2022

              WRIT PETITION No.25742 of 2022

     Between:-

     SURESH      KUMAR    SAXENA,   S/O   SHRI
     RAMSWAROOP SAXENA, AGED 50 YEARS,
     OCCUPATION: TEACHER (SCIENCE) HIGH
     SCHOOL, R/O 85, LATERI, WARD NO.3,
     NAYAPURA       LATERI,   TEHSIL    LATERI,
     DISTRICT VIDISHA (MADHYA PRADESH)

                                          .....PETITIONER

     (BY SHRI S.K. JAIN - ADVOCATE)

     AND

1.   THE STATE OF M.P. THROUGH THE
     PRINCIPAL        SECRETARY,        PUBLIC
     INSTRUCTIONS,       VALLABH       BHAWAN,
     BHOPAL (M.P.)
2.   COMMISSIONER, HIGHER EDUCATION,
     GAUTAM NAGAR, BHOPAL (M.P.)
3.   THE COLLECTOR, DISTRICT VIDISHA
     (M.P.)
4.   THE DISTRICT EDUCATION OFFICER,
     DISTRICT VIDISHA (MADHYA PRADESH)
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5.     THE      CHIEF       EXECUTIVE           OFFICER,
       JANPAD PANCHAYA LATERI, DISTRICT
       VIDISHA (MADHYA PRADESH)



                                                     .....RESPONDENTS

       (BY SHRI JITESH SHARMA - GOVT. ADVOCATE )


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       This petition coming on for admission this day, the court
passed the following:

                               ORDER

(1) The instant petition under Article 226 of the Constitution of India is preferred by the petitioner aggrieved by the order of transfer dated 21/10/2022 (Annexure P/1), whereby he was transferred from Government H.S. Jawti, Vidisha to Government Primary school, Naukheda, Vidisha.

(2) Heard on the question of admission and interim relief. (3) Counsel for the petitioner vehemently argued that the impugned order is in a way demotion of the petitioner who was working in Government Higher Secondary School and is transferred to Government Primary school, which is against the transfer policy and is politically motivated, thus, deserves to be quashed.

(4) The Government Advocate on the other hand submitted that the petitioner, who is a Prathmik Shikshak, since from his initial

posting vide order dated 11/09/1998 was posted at Jawti, which was a Higher Secondary school and his transfer to a Primary school, in no way can be said to be demotion, since his appointment itself was as Primary Teacher and was teaching to the primary sections and therefore, his transfer to a primary school cannot be said to be bad.

(5) Heard the parties and perused the record. (6) A transfer order should normally be disdained and should not be countenanced by the Courts as though it is an Appellate Authority over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts cannot substitute its own decision in the matter of transfer for that of authorities of the State and even allegations of malafides when made must be such as to inspire confidence or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

(7) From perusal of the impugned transfer order it would be evident that the petitioner was working at Government H S Jawti, District Vidisha since his initial appointment in the year 1998 and has never been transferred to any other place, coupled with the fact that there is nothing on the record nor the counsel for the petitioner could demonstrate, which would show that aforesaid

transfer order and the consequent posting order, is vitiated as it is an outcome of a malafide exercise of power or violative of any statutory provision or passed by an authority not competent to do so.

(8) So far as the allegation that the impugned transfer order was a corollary of the order dated 12/10/2022 passed in W.A. 995/2022, wherein his mother who was President Nagar Palika, Lateri and was roped in by Lokayukt on a complaint had challenged the communication dated 23/07/2018 made by the Legal Advisor, Lokayukt to initiate action against her on the basis of an enquiry report and communication dated 20/08/2018 by the Collector to Chief Executive Officer, Nagar Palika, Lateri, District Vidisha, whereby he was directed to lodge an F.I.R. against her and whereby the enquiry pending against her was quashed, is concerned, the same cannot in any way said to attract arbitrariness/illegality to the action of respondents in transferring the petitioner, as the enquiry initiated against the mother of the petitioner was by the Lokayukt on some complaint for alleged misappropriation by her for the period between 01/01/2015 to 31/12/2020, as the elected President of Nagar Palika, Lateri. It was initiated way back in the year 2018 and culminated in the year 2022. From its perusal it is evident that it had nothing to do with any action of the present respondents, which could have instigated them for issuance of the impugned transfer order. (9) The violation of transfer policy, as has been alleged by the

petitioner is of no consequence, as the transfer policy, which is in the form of administrative guidelines for regulating transfers at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments etc. (10) The Hon'ble Supreme Court in the case of Gujarat Electricity Board Vs. Atmaram Sungomal Poshani, reported in (1989) 2 SCC 602 has held as under :

"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking 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. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules......."

(11) The Hon'ble Supreme Court in the case of Rajendra Singh Vs. State of U.P., reported in (2009) 15 SCC 178, has held as under :

"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."

(12) Thus, in the light of the above discussion and the judgments cited above, since the petitioner has not been able to make out a case of malafide or violation of any statutory rules or the incompetency of authority passing the orders, which are the grounds available for interference, the petitioner has no statutory right to remain posted at any particular place.

(13) For the aforementioned reasons, the writ petition fails and is hereby dismissed.

E-copy/Certified copy as per rules/directions.

(Milind Ramesh Phadke) Judge Pawar* ASHISH PAWAR 2022.11.15 18:42:38 +05'30'