Dr. Rajendra Kumar Ram vs The State Of Madhya Pradesh
2022 Latest Caselaw 13546 MP

                                                             1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                           BEFORE
                                             HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                  ON THE 14th OF OCTOBER, 2022

                                              WRIT PETITION No. 22978 of 2022

                                   BETWEEN:-
                                   D R . RAJENDRA KUMAR RAM S/O LATE SHRI
                                   RAMNARESH RAM, AGED ABOUT 54 YEARS,
                                   OCCUPATION:     HOMEOPATHY    MEDICAL
                                   OFFICER     GOVERNMENT    HOMEOPATHY
                                   DISPENSARY JANTIPUR DISTRICT MANDLA
                                   (MADHYA PRADESH)

                                                                                            .....PETITIONER
                                   (BY SHRI K.C.GHILDIYAL, SENIOR ADVOCATE WITH SHRI
                                   MANISH KHOLIA, ADVOCATE )

                                   AND
                           1.      THE STATE OF MADHYA PRADESH THROUGH
                                   THE   PROINCIPAL   SECRETARY    AYUSH
                                   DEPARTMENT    SECRETARIAT,   VALLABH
                                   BHAWAN, BHOPAL (MADHYA PRADESH)

                           2.      THE COMMISSIONER AYUSH DEPARTMENT
                                   MADHYA PRADESH DIRECTORATE OF AYUSH
                                   BHOPAL (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                                   (BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE FOR
                                   RESPONDENTS/STATE)

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

This petition under Article 226 of the Constitution of India has been filed challenging the transfer order dated 05.10.2022 (Annexure P-5) passed by the respondent no.1 whereby the petitioner has been transferred from Government Homeopathy Dispensary, Jantipur District Mandla to Government

Signature Not Verified Homeopathy Hospita, Navegaon, District Chhindwara. Signed by: VARSHA DUBEY Signing time: 10/17/2022 10:34:35 AM

The case of the petitioner is that he was working since long in the place of posting. Elder daughter of the petitioner who is studying at Kendriya Vidyalaya has to appeared in the Class-12 Examination and younger daughter is studying in Class-6 at the same school. Transfer of the petitioner is in the mid academic session which will adversely affect the academic career of the children. Another ground taken by the counsel is that wife of the petitioner is suffering from paralysis and is totally dependent upon him. It is submitted that the petitioner has already preferred a representation raising all his grievances,which is pending consideration. On the earlier occasion, the petitioner preferred a representation on 15.09.2022 requesting his transfer at

home district or at any place near Bhopal for proper treatment of his wife. A detailed representation to the aforesaid effect has already been filed which is pending consideration. An innocuous prayer is made to direct the respondents/authorities to consider and decide the pending representation in view Clause 27 of the transfer policy and till the decision on the representation, the petitioner may be permitted to continue at the present place of posting as the petitioner has not been relieved till date.

Counsel for the State has no objection to decision on the representation but as far as interim relief is concerned, it is pointed out that the transfer order is dated 05.10.2022 and by lapse of time, the petitioner must have been relieved. He has placed reliance upon the judgment passed by the Division Bench of this Court in the case of R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329 and in the case of Mridul Kumar Sharma Vs. State of M.P. and others reported in ILR (2015) MP 2556 a n d has submitted that in case of violation of condition of transfer policy, the only Signature Not Verified Signed by: VARSHA DUBEY Signing time: 10/17/2022 10:34:35 AM

remedy available to the petitioner is to get his representation decided at an early date.

The law is settled by the Division Bench of this Court with respect to transfers; wherein, the Division Bench in the case of R.S.Chaudhary Vs. State of M.P. and others reported in ILR (2007) MP 1329 has held as under :-

"Transfer Policy formulated by State is not enforceable as employee does not have a right and courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines."

The Division Bench of this Court in Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R (2015) MP 2556, has held as under :

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to 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. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other".

Looking to the facts and circumstances of the case and as admitted by

the judgment passed by the Division Bench of this Court in the aforesaid cases, the only relief which can be extended to the petitioner is to direct the authorities to decide the representation of the petitioner at an early date.

The aforesaid aspect was considered by the Hon'ble Supreme Court in the case of Director of School Education Madras and Others VS. O. Karuppa Thevan and Another reported in 1994 Supp.(2) Supreme Court Signature Not Verified Signed by: VARSHA DUBEY Signing time: 10/17/2022 10:34:35 AM

Case 666; wherein, the Supreme Court has held as under:-

"The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-

academic term. Although there is no such rule, w e are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current a c a d e mi c year. The appeal is allowed accordingly with no order as to costs."

Considering the overall facts and circumstances of the case and the order passed by the Division Bench in the aforesaid cases, this Court deems it appropriate to dispose off the writ petition directing the petitioner to prefer a fresh representation to the respondent no.1 within a period of seven days from today in case such a representation is filed, the respondent no.1 is directed to dwell upon the same and pass a self contained speaking order and communicate the outcome to the petitioner within a period of 15 days from the date of receipt Signature Not Verified Signed by: VARSHA DUBEY Signing time: 10/17/2022 10:34:35 AM

of this order.

Needless to mention that this Court has not expressed any opinion on the merits of the case.

Accordingly, the petition is disposed of.

Certified copy as per rules.

(VISHAL MISHRA) JUDGE VD

Signature Not Verified Signed by: VARSHA DUBEY Signing time: 10/17/2022 10:34:35 AM