Shailendra Tiwari vs The State Of Madhya Pradesh
2022 Latest Caselaw 13656 MP

                                                           1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                 ON THE 17th OF OCTOBER, 2022

                                             WRIT PETITION No. 23408 of 2022

                                   BETWEEN:-
                                   SHAILENDRA TIWARI S/O LATE SHRI B.M.
                                   TIWARI, AGED ABOUT 53 YEARS, OCCUPATION:
                                   BEATGUARD O/O FOREST CIRCLE BANDA
                                   DISTT. SAGAR (MADHYA PRADESH)

                                                                                      .....PETITIONER
                                   (BY SHRI SHYAM YADAV - ADVOCATE)

                                   AND
                           1.      THE STATE OF MADHYA PRADESH THROUGH
                                   PRINCIPAL SECRETARY FOREST DEPARTMENT
                                   VALLABH    BHAWAN,   BHOPAL (MADHYA
                                   PRADESH)

                           2.      CHIEF CONSERVATOR OF FOREST FOREST
                                   D E PA R T M E N T SAGAR DIVISION SAGAR
                                   (MADHYA PRADESH)

                           3.      COLLECTOR SAGAR DISTT. SAGAR (MADHYA
                                   PRADESH)

                           4.      NODAL OFFICER/DIVISIONAL FOREST OFFICER
                                   SOUTH FOREST CIRCLE DISTRICT SAGAR
                                   (MADHYA PRADESH)

                           5.      DIVISIONAL FOREST OFFICER NORTH FOREST
                                   CIRCLE DISTRICT SAGAR (MADHYA PRADESH)

                           6.      R AN GER RANGE OFFICE BANDA DISTRICT
                                   SAGAR (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                                   (BY MS. SHARDA DUBEY - PANEL LAWYER)

                                 This petition coming on for admission this day, th e court passed the
                           following:
Signature Not Verified
                                                            ORDER

Signed by: MOHD IRFAN SIDDIQUI Signing time: 10/18/2022 5:07:05 PM

Challenge being made to the transfer order dated 04.10.2022 whereby, the petitioner has been transferred from Beat Guard Bheda Forest Circle Banda, District-Sagar to Beat Guard Atta Forest Circle Malthon.

It is submitted by the learned counsel for the petitioner that the petitioner has been subjected to frequent transfers. Earlier the petitioner was posted in Beat Guard Bheda Forest Circle Banda, District-Sagar in the year 2021. Now within a period of two years the petitioner is again subjected to transfers to Beat Guard Atta Forest Circle Malthon. It is submitted that children of the petitioner are studying at present place of posting. It is also submitted by the learned counsel for the petitioner that the transfer order is in violation of Clause 17 of

the transfer policy. It is further submitted that the petitioner has frequently transferred for two times within 14 months has submitted a representation to the respondents/Authorities but the same has not been considered and decided till date.

P er contra, learned counsel for the State has opposed the prayer and submitted that the transfer is a condition of service and the said transfer is on administrative grounds. It is further submitted that as far as other grounds regarding representation are concerned, the same will be dealt with by the Authorities and decided expeditiously. He has placed reliance in the Division Bench judgment 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 Union of India and ors. vs. SL Abbas as reported in AIR 1993 SC 2444..

Heard the learned counsel for the parties and perused the record. O n perusal of the record, it is seen that the petitioner vide order dated 4.10.2022 has been transferred from Beat Guard Bheda Forest Circle Banda,

Signature Not Verified District-Sagar to Beat Guard Atta Forest Circle Malthon. The petitioner has Signed by: MOHD IRFAN SIDDIQUI Signing time: 10/18/2022 5:07:05 PM

frequently transferred for two times within 14 months, but the fact remains that the petitioner is already working at the present place of posting for a considerable period of 14 months. In such circumstances, it cannot be said that the petitioner has been frequently transferred and there is violation of Clause 17 of transfer policy.

The law with respect to transfer is concerned, is well settled 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 Union of India and ors. vs. SL Abbas as reported in AIR 1993 SC 2444.

In the case of R.S. Chaudhary (supra) the Division Bench of this Court 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 Hon'ble Supreme Court in the case of Union of India and Ors v. S.L. Abbas reported in AIR 1993 SC 2444, has held as under:-

"An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed i n any manner required by proper authority".

Fundamental Rule 15 says that "the President may transfer a government servant from one post to Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 10/18/2022 5:07:05 PM

another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set- back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."

Considering the overall facts and circumstances of the case and the fact t h a t the petitioner has already preferred a representation to the respondent/authorities; therefore, without entering into the controversy of the matter, this Court by placing reliance upon the judgment passed by the Division Bench of this Court in the case of R.S. Choudhary (supra), this Court deems it appropriate to dispose of this writ petition, with a direction to the petitioner to submit a detailed representation to the respondent No.4 within a period of seven days and in turn the respondent No.4 is directed to dwell upon the representation and pass a self contained speaking order within a period of 30 days from the date of receipt of certified copy of this order and communicate the outcome to the petitioner.

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

With the aforesaid observations, this petition is disposed of. Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 10/18/2022 5:07:05 PM

Certified copy as per rules.

(VISHAL MISHRA) JUDGE irfan

Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 10/18/2022 5:07:05 PM