Madhya Pradesh High Court
Dr. Shashiprabha Kushram 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. 22949 of 2022
BETWEEN:-
DR. SHASHIPRABHA KUSHRAM, W/O LATE DR.
P.R. DHURW, AGED ABOUT 56 YEARS,
OCCUPATION: GOVERNMENT AYUSH MEDICAL
OFFICER, GOVERNMENT AYURVEDIC
HOSPITAL MANDLA DISTRICT MANDLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AYUR JAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
ITS PRINCIPAL SECRETARY DEPARTMENT OF
AYUSH MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. COMMISSIONER, DIRECTORATE, AYUSH AIIMS
CAMPUS, SAKET NAGAR, HABIBGANJ BHOPAL
(MADHYA PRADESH)
3. DISTRICT AYUSH OFFICER, MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed challenging the order dated 05.10.2022
(Annexure P-1), passed by the respondent no.1 whereby, the petitioner has
been transferred from Government Ayurvedic Hospital, Mandla to Anyatra
Government Ayush Ayurvedic Dispensary, Vitthali, District Balaghat.
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 10/14/2022
7:11:27 PM
The case of the petitioner is that she is a widow lady and has been
transferred at 150 Kilometers from the present place of posting. Pointing out
some personal inconvenience in the writ petition, it is argued that there is
violation of Clause-29 of the Transfer Policy that the widow should not have
been transferred from her home town. The authorities have not followed the
aforesaid guidelines and transferred the petitioner. In support of his contention
learned counsel for the petitioner has relied upon a decision of the Division
Bench of this Court in the case of Ripudaman Singh Yadav Vs. State of
M.P. and others, 2019 SCC OnLine MP 1658. It is submitted that a detailed
representation has been filed by the petitioner, which is pending consideration
before the authorities. An innocuous prayer is made to direct the
respondents/authorities to consider and decide the pending representation and
till the decision, the petitioner may be permitted to continue at the present place
of posting.
Per contra, counsel appearing for the State has opposed the prayer and
submitted that the transfer of the petitioner is on administrative grounds and is a
condition of service; therefore, the petitioner is duty bound to comply with the
transfer order. Personal inconvenience cannot be a ground for quashment of the
transfer order. 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 her representation decided at
an early date.
Heard the learned counsels for the parties and perused the record.
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 10/14/2022
7:11:27 PM
As far as the transfer of the petitioner is concerned, it is an incidence of
service and the person doing Government job has to follow the terms and
conditions of the transfer. She is continuing in the present place of posting
since long. Counsel appearing for the petitioner could not point out the date on
which she is working at the present place of posting.
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
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 10/14/2022
7:11:27 PM
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
t o 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".
As far as the academic session of the child is concerned, there is no
record to show that the child is living with the present petitioner and they have
to take care of the child. There is no material to substantiate that why the child
is not residing with the grandparents since his mother and father have expired.
Counsel for the petitioner was not able to explain how the benefit of academic
session of the child can be extended to the petitioner.
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 of 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.
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 10/14/2022
7:11:27 PM
Accordingly, the petition is disposed of.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 10/14/2022
7:11:27 PM
