Madhya Pradesh High Court
Ganesh Prasad Nishad vs The State Of Madhya Pradesh on 14 October, 2022
Author: Vishal Mishra
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. 23126 of 2022
BETWEEN:-
GANESH PRASAD NISHAD S/O SHRI HANUMAN
PRASAD NISHAD, AGED ABOUT 39 YEARS,
OCCUPATION: LABORATORY TECHNICIAN
(PHYSICS), GOVT. GIRLS COLLEGE, KATNI,
DISTRICT KATNI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHAY PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY GOVERNMENT OF
MADHYA PRADESH MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COMMISSIONER HIGHER EDUCATION
D EPARTM EN T SATPURA BHAWAN BHOPAL
(MADHYA PRADESH)
3. ADDITIONAL DIRECTOR HIGHER EDUCATION
DEPARTMENT JABAPUR DIVISION JABALPUR
(MADHYA PRADESH)
4. PR IN CIPAL GOVT GIRLS COLLEGE KATNI
DISTRICT KATNI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL)
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 04.10.2022 (Annexure P-7) passed by the
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 10/17/2022
6:25:37 PM
respondent no.1 whereby the petitioner has been transferred from District Katni
to District Ujjain.
The only ground which has been taken by the petitioner is that he is
pursuing the Ph.D. course from Government Science College Jabalpur and he
has been transferred at a distance of 650 kms. Therefore, a representation has
been filed by the petitioner. An innocuous prayer is made to direct the
respondent No.1 to consider and decide the pending representation
expeditiously.
Counsel for the State has no objection to the innocuous prayer made by
the petitioner. It is argued that the respondent No.1 will consider and decide the
representation expeditiously.
The petitioner has made a prayer that he may be permitted to continue at
present place of posting till decision on the representation.
As far as interim relief is concerned, the same is highly objected by the
State counsel pointing out the fact that the petitioner is well aware of the fact
that he is a Government servant and his services are transferable, despite of the
same, he has chosen to carry out the Ph.D. course. Transfer is a condition of
service, the petitioner can always be transferred and he has already completed
more than four years in the present place of posting. 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
and has submitted that in case of violation of condition of transfer policy, the
only remedy available to the petitioner is to get his representation decided at an
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 10/17/2022
6:25:37 PM
early date.
Heard learned counsel for the parties and perused the record.
The only ground of challenge of transfer order is that pursuing the Ph.D.
Course from Government Science College, Jabalpur. The petitioner being
Government servant is aware of the fact that his services are transferable,
despite of the same, he has chosen to pursue his Ph.D course. The petitioner
was working at the present place of posting since last four years. No other
ground except the hardship being faced by the petitioner to carry out the Ph.D
course is made out in the petition.
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".
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 10/17/2022
6:25:37 PM
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.
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
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
6:25:37 PM
