Rajbahore Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 12164 MP

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                               ON THE 1 st OF AUGUST, 2023
                                             WRIT PETITION No. 18391 of 2023

                         BETWEEN:-
                         RAJBAHORE SINGH W/O SHRI PREM SINGH, AGED
                         ABOUT 36 YEARS, OCCUPATION: PATWARI R/O TEHSIL
                         BURHAR, DISTRICT SHAHDOL (MADHYA PRADESH)

                                                                                           .....PETITIONER
                         (BY SHRI PRAKASH KUMAR GUPTA - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH THROUGH
                               THE SECRETARY REVENUE DEPARTMENT
                               MANTRALAYA VALLABH BHAWAN BHOPAL
                               (MADHYA PRADESH)

                         2.    THE COMMISSIONER SHAHDOL                   SAMBHAG
                               SHAHDOL (MADHYA PRADESH)

                         3.    THE COLLECTOR SHAHDOL DISTRICT SHAHDOL
                               (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 Constitution of India has been filed against the order dated 07.07.2023 by which the petitioner who is working on the post of Patwari has been transferred from Tehsil Budhar to Tehsil Beohari.

2. It is submitted by the learned counsel for the petitioner that the transfer order of the petitioner is contrary to rules. It is also submitted that children of Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 8/3/2023 3:49:40 PM

the petitioner are studying in class 4th and class 7th and the transfer of the petitioner would adversely affect their study. The petitioner has been transferred to a place which is 108 kms away from the present place of posting. It is further submitted that daughter of the petitioner is suffering from skin disease. Her treatment is going on in Budhar and the transfer of the petitioner will adversely affect her treatment.

3. Per contra, it is submitted by the counsel for the State that so far the as treatment of daughter of the petitioner is concerned, it is incorrect to say that the treatment of his daughter is going on in Budhar. In fact the petitioner has filed the prescriptions which shows that the treatment was going on in Shahdol

or Jabalpur. Therefore, the transfer of the petitioner will not adversely effect the treatment of his daughter. It is further submitted that none of the children of the

petitioner is the student of Class 10th or Class 12th . Therefore, it is submitted that judgment passed by Division Bench of this Court in the case of Ripudaman Singh Vs. State of M.P. and Others decided on 16.07.2019 in W.A. No.1141/2019 will not apply.

4. Considered the submissions made by learned counsel for the parties.

5. So far as the personal difficulties of the employee is concerned, it is sufficient to mention here that this Court while exercising power under Article 226 of the Constitution of India cannot act as an Appellate authority or as an employer and cannot look into the personal difficulties of an employee. It is for the employer to consider the same.

6. So far as the treatment of the daughter of the petitioner is concerned, the counsel for the State is right in submitting that the prescription shows that treatment has been taken from Narmada Hospital, Shahdol or Loothra Skin

Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 8/3/2023 3:49:40 PM

Clinic, Jabalpur. Thus, it is clear that the transfer the petitioner will not adversely effect the treatment of the daughter of the petitioner.

7. At this stage, it is submitted by the learned counsel for the petitioner that petitioner has made a representation and therefore, respondents may be directed to decide the same and till then, the transfer order may be kept in abeyance.

8. Considered the submissions made by the learned counsel for the petitioner.

9. A Division Bench of the Court in the case o f Mridul Kumar Sharma Vs. State of M.P. reported in ILR 2015 MP 2556 has held that mere filing of a representation does not give rise to a vested right and it is the prerogative of the employer to stay or not to stay the transfer order during the pendency of the representation. In case if the transfer order is not stayed by the employer then it has to be executed by the employee. Accordingly, it was held that in absence of any vested right, the High Court should not pass an interim order thereby staying the execution of transfer.

10. Since the petitioner has not joined at the transferred place, therefore, at present, no direction can be issued to the respondents to decide the representation. However, it is made clear that the petitioner after submitting her joining may file an application for urgent hearing of her representation and if that

is filed then the respondents shall decide the same strictly in accordance with law without getting influenced or prejudiced by this order.

11. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 8/3/2023 3:49:40 PM

DevS

Signature Not Verified Signed by: DEVESH K SHRIVASTAVA Signing time: 8/3/2023 3:49:40 PM