Madhya Pradesh High Court

Mahesh Chandra Verma vs The State Of Madhya Pradesh on 24 August, 2023

Author: Gurpal Singh Ahluwalia

1 W.P. No.21171/2023

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 24th OF AUGUST, 2023
WRIT PETITION No. 21171 of 2023
BETWEEN:-
MAHESH CHANDRA VERMA S/O SHRI
VISHNU PRASAD VERMA, AGED ABOUT 52
YEARS, OCCUPATION: WORKING AS
FOREST GUARD BEAT BHANPUR RANGE
MEHANDWANI SAMANYA VAN MANDAL
DINDORI R/O WARD NO. 4 DINDORI
PRESENTLY RESIDING AT BHANPUR
RANGE MEHANDWANI DISTRICT
DINDORI (MADHYA PRADESH)

.....PETITIONER
(BY SMT. MALTI DADARIYA - ADVOCATE )

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

2. CONSERVATOR OF FOREST, FOREST
CIRCLE CENTRAL JABALPUR
(MADHYA PRADESH)

3. COLLECTOR DINDORI, DINDORI
DISTRICT DINDORI (MADHYA
PRADESH)

4. DIVISIONAL FOREST OFFICER
SAMANYA VAN MANDAL DINDORI
(MADHYA PRADESH)

5. RAJESH KUMAR CHOUKSEY,
FOREST GUARD, BEAT DHOLBEEJA
RANGE AMARPUR DISTRICT
DINDORI (MADHYA PRADESH)

.....RESPONDENTS
2 W.P. No.21171/2023

(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL )
............................................................................................................................................
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 07.07.2023 passed in File No.Stha/580 and order dated 07.07.2023 passed in File No.Stha/578 by which petitioner has been transferred from Range Mehandwani, Beat Bhanpur to Range Amarpur, Beat Bhanpur.

2. It is submitted by counsel for petitioner that petitioner has been transferred to a place, which is approximately 90 Kms. away from his present place of posting. Daughter of petitioner is prosecuting her studies in Class-X in Mother Teresa School, Shahpura, which is only 14 Kms. away from present place of posting. No English medium school is available at transferred place and because of ailment of petitioner, transfer of petitioner is also not conducive to his health.

3. Per contra, 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. Heard the learned counsel for parties.

5. It is the case of petitioner that daughter of petitioner is student of Class-X studying in Mother Teresa School, Shahpura. Examination of Class-X has an important role to play in the carrier of his child.

6. A Division Bench of this Court in the case of Ripudaman Singh Yadav Vs. State of Madhya Pradesh and others decided on 16.07.2019 passed in W.A. No. 1141/2019 (Gwalior Bench) has held as under:-

"This Court is conscious of the fact that assailing an order of transfer on the ground of the son/daughter of transferred employee being in Class-11th and 12th is not a justiciable cause. However, our Constitution contemplates the State at the center or at provincial level, to be directed towards welfare of the people at large, which is only possible when the people are contented by the treatment they received from the State. Services, are an integral part of the system and are instrumental in making the administrative machinery of the State move. The directive principles of State Policy oblige the State to make available circumstances and atmosphere for the citizens to physically, mentally, socially and economically grow to their fullest potential and in-turn contribute towards the over all development of the nation. This concept is reflected from a bare reading of Article 38(1) of the Constitution of India which is one of the directive principles of State Policy, which is reproduced below for ready reference and convenience:-

"Art.38(1). The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life."

For a public servant to strive towards excellence, it is of utmost importance that fair and equitable opportunities are made available by the State. One of the means to achieve this goal of providing equitable opportunities by the State is to make available healthy and stress-free working environment for a public servant. A stress-free working environment is inter alia possible when the State, functioning as an employer, while effecting transfers takes into account not only the administrative

exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which is though difficult but not impossible to achieve. Every government in it's capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the over all development of the particular institution and as well as the nation.

In the conspectus of the aforesaid discussion, this Court is of the considered view that the public servant whose children are pursuing their career in the higher secondary stage of education, ought not to be disturbed barring emergent situation where transfer cannot be avoided or deferred.

The aforesaid observations cannot be turned into direction due to inherent limitations of the power of judicial review. Therefore, this Court requests the State and its functionaries to keep the aforesaid principle in mind while subjecting transfers particularly of such public servants whose children are in Class-11th and 12th."

7. So far as transfer of petitioner at a place, which is 90 Kms. away from present place of posting is concerned, same cannot be a ground to quash the transfer order.

8. So far as treatment of petitioner is concerned, it appears from prescriptions that first prescription is of the year 2012 and second prescription is of the year 2016, therefore, ground of medical ailment is false.

9. Considering the totality of facts and circumstances of the case, this petition is disposed of in the light of judgment passed by Division Bench of this Court in the case of Ripudaman Singh Yadav (supra).

10. At this stage, it is submitted by counsel for petitioner that till then transfer order of petitioner may be kept in abeyance.

11. Considered the submissions made by counsel for 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, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.08.25 17:12:48 +05'30'