Reeta Yadav vs The State Of Madhya Pradesh
2022 Latest Caselaw 14816 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.25353 OF 2022

  BETWEEN:-

  REETA YADAV W/O SHRI RANJEET
  SINGH YADAV, AGED 61 YEARS,
  OCCUPATION:     GOVERNMENT
  TEACHER, R/O MARUTI GRIH
  NIRMAN     COLONY,     DATIA
  (MADHYA PRADESH)
                                   ........PETITIONER

  (BY SHRI SOUMYA PAWAIYA - ADVOCATE)

               AND

1. STATE OF MADHYA PRADESH
   THROUGH     ITS  PRINCIPAL
   SECRETARY, DEPARTMENT OF
   SCHOOL EDUCATION, VALABH
   BHAWAN    BHOPAL   MADHYA
   PRADESH

2. COMMISSIONER DIRECTORATE
   OF PUBLIC EDUCATION, BHOPAL
   MADHYA PRADESH

3. PRINCIPAL SHASKIYA UCCHATAR
   MADHYAMIK VIDHYALAYA NO. 2
   DATIA (E.F.A. SCHOOL) MADHYA
   PRADESH
                                  ........RESPONDENTS
                                            2


        (BY SHRI A.K. NIRANKARI - 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:-

(i) That, the impugned order Annexure P/1 may kindly be quashed and the respondents be directed to let the petitioner work at her current place of posting.

(ii) Cost of the petition be awarded or

(iii) Any other suitable order or direction deemed fit in the circumstances of the case be issued in favour of the petitioner.

2. It is submitted by the counsel for the petitioner that the petitioner is working on the post of Teacher and at present she is posted in Government Higher Secondary School No.2, Datia. By impugned order dated 21.10.2022 she has been transferred to Government Middle School Mahadevpura NMS, Guna. It is true that the petitioner has already spent 14 long years at the present place of posting but she is due for retirement within a period of one and half years. In the light of the judgment passed by the Division Bench of this Court in the case of Ripudam Singh Yadav vs. State of M.P. passed on 16.7.2019 in W.A.No.1141/2019, it is obligatory on the part of the employer to provide healthy and stress free working environment for its employee. It is submitted that the husband of

the petitioner is a heart patient and is undergoing treatment and the petitioner is also undergoing the treatment from Neurologist, therefore, the transfer of the petitioner to Guna would certainly create a stress in her mind and thus it would not be possible for her to deliver 100% of her capability. Furthermore, the petitioner is an Office Bearer which is evident from the letter dated 29.4.2022 issued by APAX and she is holding the post of President of Tahsil Datia Executive Body and thus as per clause 4.4 of the transfer policy, she is exempted from transfer.

3. Per contra, the petition is vehemently opposed by the counsel for the respondent/State. It is well established principle of law that transfer is an exigency of service and no one can claim that he should be posted at a particular place or he should not be transferred at all.

4. Heard the learned counsel for the parties.

5. From the submissions made by the counsel for the petitioner, it is clear that the petitioner has already spent 14 long years in Datia.

6. So far as the retirement of the petitioner is concerned, 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

7. It is not the case of the petitioner that the petitioner is suffering from any serious ailment. Furthermore, the transfer policy is not enforceable by law and it is merely an executive instructions.

8. So far as the submission with regard to the stress-free environment is concerned, it is the case of the petitioner that since her husband is suffering from heart ailment, therefore, she has to look after him and her transfer would create stress in her mind. The petitioner has filed a copy of the document written by Dr. B. Kandpal, Cardiologist, rendering services in Sir Ganga Ram Hospital, New Delhi. This document is dated 4.1.2016, by which certain tests were prescribed. According to the history, husband of the petitioner had suffered from angina about two years back, that means, the husband of the petitioner has felt some heart ailment in the year 2014. There is nothing on record to show that the husband of the petitioner had undergone any test as suggested by Dr. B. Kandpal. There is nothing on record that the husband of the petitioner had ever been taken to other hospitals for his heart treatment. In addition, no other document showing treatment of the husband of the petitioner has been filed.

9. So far as the treatment of the petitioner is concerned, she has relied

upon the medical prescriptions of a Neurologist of the year 2018 and 2019. There is nothing on record to show that at present also, the petitioner is also suffering from any ailment.

10. Furthermore, the contention of the petitioner that she is the President of APAX of Datia Executive Body clearly shows that the petitioner is medically fit.

11. By referring to clause 4.4 of the transfer policy, it is submitted that the appointed office bearers are also exempted from transfer.

12. Considered the submissions made by the counsel for the petitioner.

13. Clause 4.4 of the Transfer Policy reads as under:

"4-4 jkT; 'kklu ls i=kpkj djus dh ekU;rk izkIr deZpkjh laxBuksa ds izns'[email protected]@[email protected]@ fodkl[k.M 'kk[kk ds inkf/kdkfj;ksa ;Fkk& v/; {[email protected]@dks"kk/;{k dss in ij fu;qfDr mijkar LFkkukarj.k ls nks inkof/k ds fy;s vFkkZr 4 o"kZ rd dh lkekU;r% NwV izkIr gksxhA ;g lqfo/kk mlds iwjs lsokdky esa fu;ekuqlkj nks inkof/k ds fy;s feysxhA 4 o"kZ ls vf/kd inLFkkiuk vof/k iw.kZ gksus ij iz'kkldh; vko';drk vuqlkj ,sls inkf/kdkfj;ksa dks Hkh LFkkukarfjr fd;k tk,xkA laxBu ds inksa esa fu;qfDr dh iwoZ lwpuk ds laca/k esa l{ke izkf/kdkjh dh larqf"V dk vk/kkj eq[; gksxkA bl laca/k esa 'kklu ds i= dzekad ,Q 10&[email protected]@1&[email protected] fnukad 24 vizSy] 2006 ds izko/kkuksa ds vuqlkj ekU;rk izkIr deZpkjh laxBuksa }kjk fuokZpu ds i'pkr~ fuokZfpr inkf/kdkfj;ksa dh lwph muds dk;Zdky lfgr lacaf/kr dysDVj dks nh tk;sxhA blds lkFk&lkFk lacaf/kr foHkkx izeq[k] tgka os dk;Zjr gksa] rFkk lkekU; iz'kklu foHkkx ¼deZpkjh dY;k.k izdks"B½ dks fnukad 30 vizSy dh fLFkfr esa lkSai nh xbZ gks] mUgha inkf/kdkfj;ksa dks LFkkukUrj.k ls NwV dk ykHk fyn;k tk,xkA

14. So far as clause 4.4 of the transfer policy is concerned, the same cannot be made applicable to appointed office bearer. There is a basic difference between appointed office bearer as well as elected office

bearer. There appears to be some typing mistake in earlier part of the clause 4.4 of the transfer policy because in the later part of clause 4.4 of the transfer policy it is specifically mentioned that the list of elected office bearer is to be provided in order to give exemption from transfer. Further elected office bearer is the representative of electoral but the appointed office bearer in absence of any bye-law cannot be said to be a representative of electroal.

15. Since the petitioner has already spent 14 long years at the present place of posting and is not an elected office bearer, therefore, she is not entitled for any exemption.

16. It is submitted by the counsel for the petitioner that although the petitioner has not made any representation but she may be permitted to make a representation against her transfer order.

17. Considered the submission made by the counsel for the petitioner.

18. So far as the question of representation is concerned, 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, it is directed that in case if the petitioner submits her joining at her transferred place and if she makes a representation along with joining report, then her representation shall be considered in accordance with law. Needless to mention here that the direction to decide the representation should not be construed as a direction to allow the representation and the representation shall be decided strictly in accordance with law without getting influenced or prejudiced by this order.

19. Since the transfer is an exigency of service and no one can claim that he should be posted at a particular place and in absence of any

malafides, no case is made out warranting interference.

20. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE (alok)

ALOK KUMAR 2022.11.15 14:26:17 +05'30'