Narayan Singh Maran vs The State Of Madhya Pradesh ...
2023 Latest Caselaw 12654 MP

                              1             WP No.16621/2023


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 7th OF AUGUST, 2023
              WRIT PETITION No. 16621 of 2023
BETWEEN:-

NARAYAN SINGH MARAN S/O SHRI ANUP SINGH MARAN,
AGED ABOUT 43 YEARS, OCCUPATION: PANCHAYAT
SECRETARY POSTED AT GRAM PANCHAYAT BELKHEDI
BAJYAFT, JANPAD PANCHAYAT FANDA, DISTRICT
BHOPAL (MADHYA PRADESH)


                                             .....PETITIONER
(BY SHRI D.K. TRIPATHI - ADVOCATE)

AND

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



2.   DIRECTOR CUM COMMISSIONER, PANCHAYAT RAJ
     DIRECTORATE M.P. BHOPAL (MADHYA PRADESH)



3.   CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT
     FANDA DISTRICT BHOPAL (MADHYA PRADESH)



4.   NARAYAN     SINGH    MEENA,   PANCHAYAT
     SECRETARY, GRAM PANCHAYAT BARODI JANPAD
     PANCHAYAT    BAIRASIA, DISTRICT  BHOPAL
     (MADHYA PRADESH)


                                           .....RESPONDENTS
(SHRI K.S. BAGHEL - GOVERNMENT ADVOCATE FOR RESPONDENTS
NOS.1 TO 3/STATE)
                                   2                    WP No.16621/2023


      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 orders dated 07.07.2023 and 10.07.2023 by which executive transfer order dated 30.06.2023 was cancelled and petitioner was relieved.

2. It is the case of petitioner that by order dated 30.06.2023 petitioner was transferred from Gram Panchayat Barodi, Janpad Panchayat Bairasia, District Bhopal to Gram Panchayat Berkhedi Bajyaft, Janpad Panchayat Fanda, District Bhopal on his own request. Accordingly, petitioner submitted his joining before Sarpanch Gram Panchayat Berkhedi Bajyaft on 04.07.2023 and on very same day, he also submitted his joining before C.E.O. Janpad Panchayat Fanda, District Bhopal. However, by order dated 07.07.2023 transfer order dated 30.06.2023 which was already executed on 04.07.2023 has been cancelled and as a consequence thereof, petitioner was also relieved from Gram Panchayat Berkhedi Bajyaft by order dated 10.07.2023.

3. Counsel for petitioner has relied upon a judgment passed by Division Bench of this Court in the case of Manmohan Sharma Vs. State of M.P. and others decided on 02.02.2018 in W.A. No.1249/2017 as also a judgment passed by a coordinate Bench of this Court in the case of Santosh Kumar Sihare Vs. State of M.P. and others reported in (2020) 1 M.P.L.J. 126. It is submitted that once the order of transfer has been executed, then the same cannot be recalled.

4. Per contra, counsel for State submitted that merely because transfer order was executed, it would not take away the jurisdiction of

employer to cancel the said order.

5. Heard learned counsel for the parties.

6. A Division Bench of this Court in the case of Manmohan Sharma (supra) has held as under:

"The respondent transferred him to Gram Panchayat Bamorkalan. The Appellant executed the order and while working at Bamorkalan, the order of transfer was modified.

Thus the grievance raised by the Appellant against the cancellation of executed order of transfer.

True it is, as held by learned Single Judge that the transfer is an incident of service and an employee cannot claim it as a matter of right; however, if an order of transfer is executed and if the employer intends to modify the same, incumbent it would be upon the Competent Authority to have sound administrative reasons to recall the executed order, because it not only have a bearing upon an employee, but it also has the effect on the Government exchequer of bearing the expenses of transfer."

7. A coordinate Bench of this Court in the case of Santosh Kumar Sihare (supra) has held as under:

"16. Once the order was already executed by the petitioner and his joining was accepted at the transferred place, then the same should not have been cancelled without any cogent reason. Under these circumstances, this Court is of the considered opinion that not only the order dated 22-6-2019 by which the executed transfer order dated 20-6-2019 was cancelled is bad, but the order dated 4-9-2019 by which the representation of the petitioner has been cancelled is also bad."

8. Now once order of transfer was executed and incumbent had joined in pursuance of order of transfer, then order of transfer was

already executed and nothing was left which could be recalled on the same day. After execution of transfer order, if employer was of view that transfer order of employee requires modification, then it has an option of issuing a fresh transfer order but after transfer order is executed, nothing was left which could have been recalled.

9. This Court by order dated 17.07.2023 had issued notices to the respondents to file return. However, no return has been filed. Thus, in the facts and circumstances of the case, this Court is of considered opinion that once transfer order is executed, then the same cannot be recalled.

10. Accordingly, order dated 07.07.2023 and order dated 10.07.2023 are hereby set aside.

11. Petitioner shall continue to work in Gram Panchayat Berkhedi Bajyaft, Janpad Panchayat Fanda, District Bhopal.

12. With aforesaid observations, the petition is allowed.

(G.S. AHLUWALIA) JUDGE vc

VARSHA CHOURASIYA 2023.08.10 18:16:13 +05'30'