Dinesh Kumar Bhargava vs The State Of Madhya Pradesh
2023 Latest Caselaw 14077 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE ANAND PATHAK
                                                ON THE 28 th OF AUGUST, 2023
                                              WRIT PETITION No. 21381 of 2023

                           BETWEEN:-
                           DINESH KUMAR BHARGAVA S/O SHRI RAM KISHAN
                           BHARGAVA, AGED 61.5 YEARS, OCCUPATION: SERVICE
                           POSTED AS ASSISTANT TEACHER GOVT. P.S. KATHMAI
                           BLOCK SHIVPURI DISTRICT SHIVPURI (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI A.K. SHRIVASTAVA- ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 PRINCIPAL SECRETARY, DEPARTMENT OF
                                 SCHOOL EDUCATION,    VALLABH BHAWAN
                                 BHOPAL (MADHYA PRADESH)

                           2.    DISTRICT    EDUCATION    OFFICER DISTRICT
                                 SHIVPURI, (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI MAN SINGH JADON- GOVERNMENT ADVOCATE FOR
                           RESPONDENT/STATE.)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

1. The instant petition is preferred by the petitioner under Article 226 of the Constitution being aggrieved by the order dated 10.08.2023 whereby petitioner has been transferred from Government Primary School Kathmai Block Shivpuri to Government M.S. Nehargada Block Picchore.

2. It is the submission of counsel for the petitioner that at present he is Signature Not Verified Signed by: VISHAL UPADHYAY Signing time: 29-08-2023 11:46:17 AM

working as Assistant Teacher at Government Primary School Kathmai Block Shivpuri and he has only seven months to retire. He specifically submits that petitioner is going to retire on 24.03.2024 . Therefore, he has only seven months left for superannuation and no administrative exigency would be served if he is transfer at this stage. It is further submitted that petitioner is suffering from acute kidney disease and is under- treatment at Muljibhai Patel Urological Hospital, Nadiad, Gujrat. On these grounds, learned counsel for petitioner prayed to allow the petition.

3. Learned counsel for the respondent opposed the prayer and prayed for its dismissal however, fairly submitted that if any representation is preferred,

then same shall be decided in accordance with law.

4. Heard the counsel for the parties and perused the documents appended thereto.

5. This is a case where petitioner is seeking indulgence on the basis of his upcoming retirement in March, 2024. Beside that, petitioner is suffering from severe renal complications and due to this complication, he cannot work properly and his treatment is going at Nadiad, Gujrat, therefore, it is imperative that his case be considered sympathetically by the Department. It is also pertinent to mention mention here that no administrative exigency would be served if the petitioner is transferred for seven months at such a distant place, where petitioner would not be able to coordinate for preparation of his pension related papers.

6. It is also true that Clause 22 of the Transfer Policy stipulates that those officer/employees who are to be superannuated within one year usually, would not be subjected to transfer in normal course, meaning thereby under normal circumstances or usual course, they may retire from the place where they are Signature Not Verified Signed by: VISHAL UPADHYAY Signing time: 29-08-2023 11:46:17 AM

working if they have one year to retire. In the present case, almost seven months are left for petitioner to retire. What was the dire administrative need which compelled the respondents/State to transfer an employee when 7 months are left f o r petitioner to retire. Such an attempt rendered the case of respondents doubtful. If petitioner was not performing the duties properly then other options were available including some stringent measures but if at the fag end of his tenure, employee sent on transfer then it is difficult for him to collect the pension papers and make preparation of Pension Payment Orders. Besides that, at the fag end of his career, he has to take care of his retirement, coupled with the other family issues to resolve. As a model employer, it is the duty of the State to look into the said exigencies.

7. What public purpose would be served, if petitioner is posted at different place for 7 months because that time would be consumed by him for getting acclimatized with the new surroundings and would lose interest in performance of public duties effectively. On this count, it appears that attempt of respondents is contrary to principle of public policy as discussed in judgment of the Apex Court in the case of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, 1986 (3) SCC 156. The said aspect has been reiterated in the case of Ram Bharose Sharma Vs. State of M.P. & Ors., 2021 (4) MPLJ 90.

8. In the considered view of this Court, when petitioner is left with such little time to retire then insistence of the respondents/State to transfer the employee appears to be misplaced against public policy, guidelines by way of transfer policy and tainted with trappings of extraneous consideration because no ground has been referred for transfer except administrative reasons which

Signature Not Verified Signed by: VISHAL UPADHYAY Signing time: 29-08-2023 11:46:17 AM

ought be based upon some sound purpose and thoughtfulness.

9. Considering the submissions and fact situation, this petition is disposed of with direction to the petitioner to prefer a representation alongwith certified copy of this order raising all the grievances before respondents/competent authorities within two weeks from today. In turn, competent authorities/respondents shall consider and decide the said representation looking to his medical condition and very less time left to his retirement, as expeditiously as possible preferably within six weeks from the date of submission of representation under due intimation to the petitioner.

10. Till representation is decided, effect and operation of the impugned order dated 10.08.2023 shall remain stayed and petitioner shall be allowed to continue at his present place of posting.

(ANAND PATHAK) JUDGE Vishal

Signature Not Verified Signed by: VISHAL UPADHYAY Signing time: 29-08-2023 11:46:17 AM