Dharmendra Mishra vs The State Of Madhya Pradesh
2023 Latest Caselaw 5458 MP

                                                                     1
                                         IN    THE     HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                            ON THE 3 rd OF APRIL, 2023
                                                        WRIT PETITION No. 30372 of 2022

                                        BETWEEN:-
                                        DHARMENDRA MISHRA S/O SHRI V.P. MISHRA, AGED
                                        ABOUT 54 YEARS, OCCUPATION: W/A ASSISTANT
                                        BLOCK MANAGER MANDLA BLOCK M.P. STATE
                                        RURAL LIVELIHOOD MISSION MANDLA DISTRICT
                                        MANDLA (MADHYA PRADESH)

                                                                                              .....PETITIONER
                                        (BY SHRI VIKAS MISHRA - ADVOCATE)

                                        AND
                                        1.    THE STATE OF MADHYA PRADESH THROUGH
                                              CHIEF EXECUTIVE OFFICER (ADMIN.) M.P. STATE
                                              RURAL LIVELIHOOD MISSION PANCHAYAT AND
                                              RURAL DEVELOPMENT DEPARTMENT BHOPAL
                                              (MADHYA PRADESH)

                                        2.    JOINT COMMISSIONER (ADMIN.) M.P. STATE
                                              RURAL LIVELIHOOD MISSION PANCHAYAT AND
                                              RURAL DEVELOPMENT DEPARTMENT BHOPAL
                                              (MADHYA PRADESH)

                                        3.    COLLECTOR CUM MISSION DIRECTOR MANDLA
                                              DISTRICT MANDLA (MADHYA PRADESH)

                                        4.    CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
                                              M A N D L A DISTRICT MANDLA    (MADHYA
                                              PRADESH)

                                        5.    SMT.    SADHNA     NANDA ASSISTANT BLOCK
                                              M A N A G E R BLOCK GHATIGAON     DISTRICT
                                              GWALIOR (MADHYA PRADESH)


Signature Not Verified
                                                                                            .....RESPONDENTS
  SAN

                                        (BY SHRI MANAS MANI VERMA - GOVT. ADVOCATE)
Digitally signed by ASHWANI PRAJAPATI   (BY SHRI MANAN AGRAWAL - ADVOCATE FOR RESPONDENT NO.2 AND
Date: 2023.04.06 10:52:48 IST
                                        4)
                                                                             2
                                              Th is petition coming on for hearing this day, th e court passed the
                                        following:
                                                                             ORDER

Delay in payment of process fee is condoned as counsel for respondent No.2 and 4 have filed the reply.

This petition is filed by the petitioner being aggrieved of order dated 26.12.2022 passed by the Joint Commissioner (Admin.), MP State Rural Livelihood Mission, transferring the petitioner whose name appears at serial No.35, whereby, the petitioner is transferred from Development Block Mandla, Distt Mandla to Development Block Jabera, Distt Damoh on the ground that in terms of para 9.1 of the order dated 24.02.2020, petitioner being a contractual

employee is not liable to be transferred.

Learned counsel for the petitioner has placed reliance on the decision of Hon'ble Division Bench of this Court in W.A. No.281/2021(Seema Pasi vs. State of M.P. & ors) decided on 25.09.2021, wherein, it is held that transfer of the appellant cannot be said to be under rationalization, because the respondents have failed to establish that the appellant is a surplus employee at Jabalpur.

Shri Manan Agrawal in his turn submits that respondents no.2 and 4 have filed their reply. Copy of appointment order of the petitioner is available on record as Annexure R/2/1, dated 06.05.2013. In this order Clause 25 provides for right of NRLM to change the place of posting of the petitioner. Similarly Clause 35 gives a right of change of district/transfer to the State Livelihood Forum / NRLM on administrative ground.

It is submitted that under the similar facts and circumstances, a co- Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.04.06 10:52:48 IST ordinate Bench of this Court dealt with this issue in WP No.18139/2021 and

after noting judgments of earlier Bench in the case of Ashok Tiwari vs. MP Text Book Corporation & another [2010(2)MPLJ662] and also in the case of Vandana Dandotiya Vs. State of M.P. & ors.[2013 SCC online MP 5090], it is held that once Clause 15 of the contract provides for change of place of posting on administrative grounds from one district to another, then the services of contractual employee being governed by the terms of the contract are transferable and this aspect has been decided by the Division Bench of this Court in the case of Ashok Tiwari (supra).

Taking all these facts into consideration and also a glaring fact that though learned counsel for the petitioner has argued in the teeth of Division Bench's decision of this Hon'ble Court in WA No.281/2017 but has not taken any ground that petitioner was transferred in the name of rationalization and that policy will not be applicable. In absence of a ground taken and pleaded in the petition, petitioner cannot be permitted to argue without there being specific pleading in this behalf.

In the present case, it is submitted by Shri Manan Agrawal, that petitioner was posted at Mandla for last 8 years.

Now, when this case is taken up in April, the ground of midterm transfer is also satisfied, inasmuch as, by now examinations of children are over, and therefore, in view of the fact that since there is a condition in the appointment

order itself, which is a contract, brought on record by the respondents as Annexure R/2/1, and which is duly signed by the petitioner, since there is a clause, permitting, the respondents to change the place of posting from one district to another and petitioner had agreed to such change of posting by Signature Not Verified SAN

signing the contract, no indulgence can be shown in the administrative Digitally signed by ASHWANI PRAJAPATI Date: 2023.04.06 10:52:48 IST

discretion of the authorities to transfer the petitioner from one place to another.

Accordingly, this writ petition stands dismissed.

(VIVEK AGARWAL) JUDGE vibha

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.04.06 10:52:48 IST