Baijanti Panthi vs The State Of Madhya Pradesh
2022 Latest Caselaw 14812 MP

                             1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
             ON THE 14th OF NOVEMBER, 2022

              WRIT PETITION No. 25303 of 2022

      BETWEEN:-

      BAIJANTI PANTHI W/O LATE
      GHANSHYAM PANTHI, AGED 60
      YEARS,           OCCUPATION:
      NAUKARI(SIKSHAK),   ADDRESS
      WARD NO. 03 BLOCK COLONY
      TEHSIL ROAD KURWAI DISTRICT
      VIDISHA (MADHYA PRADESH)
                                          ........PETITIONER

      (BY SHRI R.S. DANGI - ADVOCATE)

      AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH            PRINCIPAL
      SECRETARY SCHOOL SHIKSHA
      VIBHAG    VALLABH    BHAWAN
      BHOPAL (MADHYA PRADESH)
2.    MADHYA PRADESH LOK SHIKHAN
      SANCHNALAYA         AYAYKUT
      GAUTAM NAGAR BHOPAL
3.    JILA SHIKHA AADIKARI VIDISHA
      MADHYA PRADESH
4.    KANYA    MADHYAMIK    SHALA
      (GMS) KURWAI W-4 BARETHA
      DISTRICT   VIDISHA  (MADHYA
      PRADESH
                                            2

                                                           ........RESPONDENTS

        (SHRI A.K.NIRANKARI - GOVERNMENT ADVOCATE FOR
STATE)
----------------------------------------------------------------------------------------

       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 :

ekuuh; U;k;ky; ls izkFkZuk gS fd ;kfpdkdrkZ x.k dh vksj ls izLrqr ;fpdk Lohdkj djrs gq, vkns'k fnukad [email protected]@22 dks fujLr fdtk tkdj ;kfpdkdrkZ dks ;Fkkor LFkku ij fu;qDr j[kk tkos ,oa vU;

lgk;rk tks ;kfpdkdrkZ ds fgr esa U;k;ksfpr gks ekuuh; U;k;ky; iznku djus dh d`ik djsa A It is submitted by counsel for petitioner that by impugned order dated 21.10.2022, the petitioner has been transferred from G.MS Kurwai W-4 Baretha District Vidisha to MS Murwas District Vidisha. The petitioner is a widow lady and is required to look-after her children and she has been transferred to 100 kilometers where she cannot reside all alone and there are no sufficient and safe accommodation. Further, the petitioner is also working as the Superintendent of Government Girls Hostel, and therefore, the transfer of petitioner would also adversely affect the smooth functioning of the girls hostel. The petitioner is due for retirement within 2 years. However, it is fairly conceded that the petitioner has completed three years of tenure because at present place of posting she was posted in the year 2019.

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

Heard learned counsel for the parties.

According to the petitioner, she is due for retirement within 2 years. Clause 2.15, 2.16 and 2.17 of the transfer policy reads as under :

2-15 10 o"kZ ;k blls vf/kd vof/k ls ,d gh laLFkk] fo'ks"kdj 'kgjh {ks=ksa esa inLFk f'k{kdksa dks Xkzkeh.k {ks=ksa dh f'k{kd foghu vFkok f'k{kdksa dh deh okyh 'kkykvksa esa LFkkukarfjr dj inLFk fd;k tk,xkA ,sls f'k{kd LoSfPNd LFkkukarj.k izfdz;k esa Hkkx ys ldsxsA bl ekin.M varxZr vkus okys f'k{kdksa dh dqy la[;k ds U;wure 10 izfr'kr f'k{kdksa dks HkrhZ Ok"kZ ds dzekuqlkj ofj"Brk ds vk/kkj ij xzkeh.k {ks=ksa esa LFkkukarfjr fd;k tk,xkA ,sls f'k{kdkas dks vf/kdre 10 o"kZ rd xzkeh.k {ks=ksa esa dk;Z djuk gksxkA 2-16 dafMdk 2-15 ds vuqdze esa 'kgjh {ks=ksa esa inLFk f'k{kdksa ds lkFk&lkFk v/;kid loaxZ ds ,sls f'k{kd ftudh izFke fu;qfDr uxjh; fudk; esa f'k{[email protected] f'k{kd ds :i esa gqbZ Fkh ,oa os orZeku esa uohu loaxZ esa fu;qfDr gksdj uxjh; {ks= esa yxkrkj dk;Z dj jgs gS mUgsa xzkeh.k {ks=ksa esa fuEufyf[kr vof/k vuqlkj inLFk fd;k tk,xk%& i. o"kZ 2001 rd fu;qDr f'k{[email protected] f'k{kd & 05 o"kZ ii. o"kZ 2008 rd fu;qDr lafonk f'k{kd & 07 o"kZ iii. o"kZ 2013 rd fu;qDr lafonk f'k{kd & 10 o"kZ iv. o"kZ 2018 ds i'pkr fu;qDr f'k{kd & 10 o"kZ 2-17 dafMdk 2-15 ,oa 2-16 ds ifjizs{; esa ,sls f'k{kd ftudh lsokfuo`fr esa 03 o"kZ 'ks"k gS ,oa vFkok xaHkhj [email protected] ls ihfMr gS mUgsa bl izfdz;k ls eqDr j[kk tk,xkA bu dafMdkvksa ds rgr dk;Zokgh ds laca/k esa vko';d eSfVª[email protected]/kHkkj fu/kkZj.k vk;qDr] yksd f'k{k.k }kjk fu;r fd;k tk,xkA Thus, it is clear that the employees who are due for retirement within 3 years and are suffering from serious illness/disability are exempted from the transfer. It is not the case of petitioner that she is suffering from any serious illness. Although it is claimed that petitioner has to look-after her children but the details of the children have not been

given either in the writ petition or in the representation. The age of children has also not been clarified. Her children are unmarried/spinster has also not been clarified. Since the petitioner has not claimed that her children are studying, therefore, it is clear that the children of petitioner must be major and must have completed their studies.

Merely because the petitioner was posted as the Superintendent, Government Girls Hostel, would not mean that she cannot be transferred at all. The Superintendent of a hostel is not a substantive post. Furthermore, some reliever would also be posted in place of petitioner, therefore, the smooth running of hostel would not be adversely affected.

So far as the transfer of petitioner to a place which is 100 kilometers away from the present place of posting is concerned, it is undisputed fact that petitioner is a State Government employee and she can be transferred to any place in the entire State of Madhya Pradesh. However, in the present case, she has been transferred within the district Vidisha. It is well established principle of law that this Court cannot act as an appellate authority and it is for the employer to consider the personal difficulties of its employees.

At this stage, it is submitted by counsel for petitioner that petitioner has made a representation and the same is still pending, 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 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 Aman AMAN TIWARI 2022.11.15 18:36:10 +05'30'