Tekchand Tumsare vs The State Of Madhya Pradesh
2023 Latest Caselaw 12282 MP

                            1                W.P.No.18929/2023



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 2nd OF AUGUST, 2023
              WRIT PETITION No. 18929 of 2023
BETWEEN:-
TEKCHAND TUMSARE S/O SHRI BADAJI
TUMSARE,   AGED   ABOUT    55  YEARS,
OCCUPATION:    BLOCK    COORDINATOR
SWACH     BHARAT    MISSION   JANPAD
PANCHAYAT BARGHAT DISTRICT SEONI R/O
VILLAGE BAMHANI POST DADIYA POLICE
STATION AND TEHSIL LALBARRA DISTRICT
SEONI (MADHYA PRADESH)

                                               .....PETITIONER
(BY SHRI SHANKAR DAYAL MISHRA - ADVOCATE )

AND
1.   THE STATE OF MADHYA PRADESH
     THROUGH     ITS      SECRETARY
     PANCHAYAT       AND      RURAL
     DEVELOPMENT         DEPARTMENT
     VALLABH BHAWAN BHOPAL (MADHYA
     PRADESH)

2.   MISSION DIRECTOR SWACHH BHARAT
     MISSION (GRAMIN) PANCHAYAT AND
     RURAL DEVELOPMENT DEPARTMENT
     B-WING UPPER BASEMENT SATPURA
     BHAWAN BHOPAL (MADHYA PRADESH)

3.   COLLECTOR SEONI DISTRICT SEONI
     (MADHYA PRADESH)

4.   CHIEF EXECUTIVE OFFICER JILA
     PANCHAYAT SEONI DISTRICT SEONI
     (MADHYA PRADESH)

5.   CHIEF EXECUTIVE OFFICER JANPAD
     PANCHAYAT       BARGHAT     SEONI
     DISTRICT SEONI (MADHYA PRADESH)

                                             .....RESPONDENTS
                                    2                    W.P.No.18929/2023


(BY SHRI ANUBHAV JAIN - GOVERNMENT ADVOCATE )
.......................................................................................................
      This petition coming on for admission this day, the court passed the

following:

                                 ORDER

This Petition under Article 226 of Constitution of India has been filed against order dated 24.07.2023 passed by Chief Executive Officer, Jila Panchayat Seoni, by which petitioner has been transferred from Janpad Panchayat Barghat to Janpad Pachayat Kevlari.

2. It is submitted by counsel for petitioner that petitioner is a contractual employee and since he was appointed for a particular place, therefore, he cannot be transferred. It is further submitted that petitioner is posted at present place of posting since 2019. It is further submitted that by order dated 17.06.2015, it was directed that contractual Block Coordinators are being transferred, whereas Swachh Bharat Mission is a mission of top priority of Prime Minister and Chief Minister, therefore, transfer of petitioner without permission of head quarter is bad.

3. Per contra, the petition is vehemently opposed by counsel for State. It is submitted that transfer is an exigency of service and no one can claim that he or she should be posted at a particular place.

4. Hear the learned counsel for the parties.

5. So far as the submission made by counsel for petitioner that he is holding a non-transferable post is concerned, the same is no more res- integra.

6. This Court in the case of Shabana Begum Vs. State of M.P. and others by order 05.02.2021 passed in W.P. No.1027/2021 has held as under:

"Heard the learned counsel for the parties.

Clause 3.3 of Circular dated 24/3/2020 (Annexure P-5) reads as under :-

**fe'ku varxZr ftyk ifj;kstuk izca/kd dks NksM+dj ftys ds leLr lafonk veys ds lkFk okf"kZd lafonk vuqca/k rFkk LFkku ifjorZu gksus dh fLFkfr esa uohu LFkku gsrq uohu lafonk vuqca/k dk fu"iknu lacaf/kr ftyk dysDVj ¼ftyk fe'ku lapkyd½ }kjk fd;k tkosxkA ftys ds Hkhrj LFkku ifjorZu gksus dh fLFkfr esa iqu% u;k vuqca/k vko';d ugha gksxkA**

Clause 9.1 of Circular dated 24/3/2020 reads as under:-

^^lafonk veys dh fu;qfDRk LFkku fo'ks"k ,oa dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk izko/kku ugha gSA iz'kklfud O;oLFkkvksa dks ns[krs gq, fo'ks"k ifjfLFkfr;ksa esa LFkkukarj.k fd;k tk ldsxkA lafonk vuqca/k lekIr dj LFkku ifjorZu djrs gq, leku dk;Z o ifjorZu LFkku gsrq uohu vuqca/k fd;s tkus dh Lohd`fr nh tk ldrh gSA uohu vuqca/k dh vof/k dk;Z ij mifLFkr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd gh gksxhA**

The impugned order has been issued under Clause 9.1 of the circular. From plain reading of Clause 3.3 of the circular, it is clear that in case of change of place, a fresh agreement shall be executed at the changed place.

Clause 9.1 is in two parts. The first part of this Clause provides that the contractual employee shall be appointed for a particular place and for discharging particular duties and there is no provision for transfer. However, the second part of this clause provides that in view of administrative exigencies, under special circumstances a contractual employee can be transferred and in that situation after changing the place of posting, permission for execution of new agreement at the changed place can be granted

and the tenure of the contractual employee at the changed place would be from the date of his posting till 31st March of the financial year. Thus, it is clear that there is no absolute bar to the effect that a contractual employee appointed for a particular place cannot be shifted/transferred under any circumstances. The only requirement is that since the agreement is always executed for a particular place, then in case of shifting/transfer, a fresh agreement is required to be executed. Since the employees are working on contract basis, therefore, execution of new contract would not in any manner effect their any right or seniority. Under these circumstances, this Court is unable to accept the contention of counsel for the petitioner that the post, which the petitioner is holding, is a non-transferable post and under no circumstances, she cannot be transferred from Katni."

7. A coordinate Bench of this Court in the case of Seema Pasi Vs. State of M.P. and others decided on 03.03.2021 in W.P. No.770/2021 has held as under:

"The above clause has been considered by the Co-ordinate Bench of this Court in WP No.1027/2021 vide order dated 05.02.2021 in the case of Shabana Begum vs. State of M.P. and others and it has been held that the said clause permits transfer. The view taken by the Co- ordinate Bench in the matter of Shabana Begum (supra) after noting clause 9.1 of the policy reads as under:

The impugned order has been issued under Clause 9.1 of the circular. From plain reading of Clause 3.3 of the circular, it is clear that in case of change of place, a fresh agreement shall be executed at the changed place.

Clause 9.1 is in two parts. The first part of this Clause provides that the contractual employee shall be appointed for a particular place and for discharging particular duties and there is no provision for transfer. However, the second part of this clause provides that in view of administrative exigencies, under special circumstances a contractual employee can be transferred and in that situation after changing the place of posting permission for execution of new agreement at the changed place can be granted and the tenure of the contractual employee at the changed place would be from the date of his posting till 31st March of the financial year. Thus, it is clear that there is no absolute bar to the effect that a contractual employee appointed for a particular place cannot be shifted/transferred under any W.P.

No.15911/2020 & connected cases circumstances. The only requirement is that since the agreement is always executed for aparticular place, then in case of shifting/transfer, a fresh agreement is required to be executed.

Since the employees are working on contract basis, therefore, execution of new contract would not in any manner effect their any right or seniority. Under these circumstances, this Court is unable to accept the contention of counsel for the petitioner that the post, which the petitioner is holding, is a non-transferable post and under no circumstances, she cannot be transferred from Katni."

In the above judgment, considering the same issue of transfer in respect of similarly situated persons, the Coordinate Bench has already taken the view that transfer is permissible. The respondents have also placed on record Human Resource Manual which also contains the provision in Clause 3.5 stating that all fixed tenure staff would be transferable as per the need of SRLM. Another Coordinate Bench of this Court in the matter of Maithali Saran Trivedi vs. State of M.P. vide order dated 16.06.2020 dismissing the Writ Petition No.7779/2020 against transfer order by similarly situated employees, has held as under:

'Shri Sharma, learned Deputy Advocate Genera appearing for the respondents/State submits that the policy issued by the State Government dated 24.02.2020 (Annexure-P/3) contained a specific provision for transfer under Clause-9 of the said policy and accordingly, the petitioner has rightly been transferred. He further submits that the order passed by the coordinate Bench in aforesaid writ petition on which the petitioner is relying upon, is not helpful for the petitioner because the Court has not considered the relevant policy dated 24.02.2020, but considered the earlier policy dated 01.12.2015 which provides the post of contract employee is a non-

transferable post. Considering the above, I am of the opinion that taking note of the provisions of policy dated 24.02.2020 (Annexure-P/3), the petitioner can be transferred from one place to another and as such, the order impugned also contained the respective provision of transfer. The coordinate

Bench admittedly has not been apprised about the existing transfer policy and, therefore, the order has been passed in view of the provisions of policy dated 01.12.2015, the petitioner, therefore, is not entitled to get any benefit of the order passed by the coordinate Bench and principle of parity is also not applicable in the present facts and circumstances of the case.' Learned counsel appearing for the petitioner has placed reliance upon the interim order passed in WP No.16811/2020 but the said writ petition has subsequently been dismissed by the Co- ordinate Bench by order dated 21.12.2020 by holding as under:

'In the present case, the petitioner failed to demonstrate any such illegality in the order on the basis of which interference can be made that too exercising the jurisdiction of Article 226 of the Constitution of India. As per the settled principle of law the employer is the best judge to consider as to where and how services of its employees can be utilized and after raising grievance before the employer, impugned order has been passed rejecting the request made by the petitioner. Therefore, in such circumstance judicial review in a matter of transfer is not permissible and accordingly as such I do not find any substance in the petition.' It is the settled position in law that the services of a contract employee are governed by the terms of the contract. In the present case, the appointment order of the petitioner itself contains a clause relating to transfer and in addition

thereto the policy also provides for transfer, hence, in terms thereof, the respondents have right to transfer the petitioner. The impugned order of transfer is a general order of transfer whereby several such employees W.P. No.15911/2020 & connected cases have been transferred to different places on account of the administrative exigency."

8. The judgment passed by Coordinate Bench of this Court in the case of Seema Pasi (supra) was affirmed by Division Bench of this Court by order dated 25.09.2021 passed in W.A. No.281/2021.

9. Thus, it is clear that petitioner is holding a transferable post. The petitioner has already completed his normal tenure of three years at present place of posting. Transfer is an exigency of service and no one can claim that he or she should be posted at a particular place.

10. At this Stage, it is submitted by counsel for petition that petitioner has made a representation, therefore, the respondents may be directed to decide the same.

11. Considered the submissions made by counsel for the petitioner.

12. A Division Bench of the Court in the case of 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.

13. Since the petitioner has not joined at the transferred place, therefore, at present, no direction can be issued to the respondent to

decide the representation. However, it is made clear that the petitioner after submitting his joining may file an application for urgent hearing of his representation and if that is filed, then the respondent shall decide the same strictly in accordance with law without getting influenced or prejudiced by this order.

14. With aforesaid observations, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.08.03 17:22:54 +05'30'