Neetesh Kumar Mehta vs The State Of Madhya Pradesh
2023 Latest Caselaw 1953 MP

Citation : 2023 Latest Caselaw 1953 MP
Judgement Date : 3 February, 2023

Madhya Pradesh High Court

Neetesh Kumar Mehta vs The State Of Madhya Pradesh on 3 February, 2023

Author: Milind Ramesh Phadke

                               1

     IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                ON THE 3rd OF JANUARY 2023

              WRIT PETITION No.2527 of 2023

       Between:-

       NEETESH KUMAR MEHTA S/O LATE SHRI
       SUSHIL KUMAR MAEHTA, AGED ABOUT 42
       YEARS, OCCUPATION: GOVT. SECONDARY
       TEACHER, R/O WARD NO 17, PANDA PURA,
       GANJ    BASODA,    DISTRICT      VIDISHA
       (MADHYA PRADESH)
                                         .....PETITIONER

       (BY SHRI CHETAN KANUNGO - ADVOCATE)

       AND
1.     THE STATE OF MADHYA PRADESH,
       THROUGH     PRINCIPAL       SECRETARY,
       VALLABH BHAWAN, BHOPAL (MADHYA
       PRADESH)
2.     THE COMMISSIONER, DIRECTORATE OF `
       PUBLIC INSTRUCTION, OFFICE AT
       GAUTAM NAGAR, BHOPAL (MADHYA
       PRADESH)
3.     YOGESH KUMAR JAT R/O OF BLOCK
       OFFICE KE PEECHE WARD NO. 8, GANJ
                                         2

       BASODA, DISTRICT VIDISHA (MADHYA
       PRADESH)



                                                     .....RESPONDENTS

       (BY SHRI DEEPAK KHOT - GOVERNMENT ADVOCATE)

--------------------------------------------------------------------------------
       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                                 ORDER

1. The present petition under Article 226 of the Constitution of India has been preferred challenging the order dated 22/10/2022 passed by respondent no. 2, whereby the petitioner and respondent no. 3 both have opted for transfer at GNMS School, Swaroop Nagar, District Vidisha, but though the petitioner was senior to respondent no. 3 in utter disregard to the Transfer Policy of 2022 dated 08/09/2022 which speaks of the request of voluntary transfers, the request of the petitioner was denied and the request of the respondent no.3 was accepted and he was transferred to the aforesaid place of posting.

2. It has been contended by the counsel for the petitioner that as per Clause 3.1.2, sub-Clause 17 of Transfer Policy which laid down as under:-

3-1-2 LFkkukarj.k gsrq izkFkfedrk dk dze fuEu rkfydk vuqlkj gksxk A vfr'ks"k

f'k{kdksa dks izR;sd Js.kh esa ojh;rk nh tk,xh &

ojh;rk dze f'k{kd laoxZ ds LFkkukarj.k esa ojh;rk dze dk dzekuqlkj [email protected]#"k fooj.k 17 iq#"k oxZ ,d ls vf/kd vkosnd gksus ij ofj"B f'k{kd ¼lEiw.kZ lsok vof/k ds vk/kkj ij½ dks ojh;rk nh tk,xh A

3. Preference is to be given to the senior teachers in the cases of persons who wanted voluntary transfers. But on an information received from the department by the petitioner it was gathered that the transfer of respondent no. 3 was effected in pursuance to Clause 3.1.2, sub-Clause 9 of Transfer Policy, wherein due to some complications arising out of Covid 19 transfers could be done for availing medical treatment, whereas there were no such documents submitted by the respondents which could have shown that he was suffering from some serious complications arising out of Covid 19 and even then just to accommodate respondent no. 3, the said transfer order has been passed. On the strength of the above arguments, counsel for the petitioner prays for setting aside of the impugned transfer order dated 22/10/2022 (Annexure P/5).

4. Per contra, learned Government Advocate, Shri Deepak Khot submits that the impugned transfer order dated 22/10/2022 as per the petitioner himself, has been executed and the respondent no. 3 had already been posted at his transferred place of posting and placed reliance on the decision of 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 in which it has been 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.

and in the light of the decision rendered in Santosh Kumar Sihare (supra) the petitioner is not entitled for any relief. Thus, in the light of the decision rendered in Santosh Kumar Sihare (supra) the present petition cannot be entertained and the only relief which the petitioner could have is to get his representation decided by the authorities.

5. Heard the learned counsel for the parties and perused the record.

6. The factum of the execution of the impugned order dated 22/10/2022 (Annexure P/5) has not been denied by the counsel for the petitioner. Thus, in the light of the judgment passed in the case of Santosh Kumar Sihare (supra) the transfer which has been already executed cannot be cancelled and the only remedy which could be available to the petitioner is to approach the authorities by way of his representation. Apart from this, in the matter of

R.S. Chaudhary Vs. State of M.P. and others, reported in I.L.R. (2007) M.P. 1329 the Division Bench of this Court has held as under:

"The binding nature of the guidelines, in our humble view, has to be understood in the context of Mrs. Shilpi Bose (supra), S.L. Abbas (supra), Jagjit Singh Mehta (supra) and S.S. Kaurav and others (supra). To elaborate the instructions or the guidelines do not confer any enforceable right on an emplyee. He has no vested right to remain at one post or the other. However, while ordering a transfer the authority must keep in mind the guidelines issued by the Government whether an order of transfer is passed in-violation of the guidelines or the executive instructions. The action of the State Government should not be mala fide or malicious and should be tested on the anvil and touchstone of acceptable reasonableness. In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory Rule or if the action of the Government is cacpricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact,

that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the ground that there has been violation of the policy, the proper remedy is to apprach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity."

Thus, the petitioner who has already made the representation to the authorities is directed to seek the remedy available with him and the respondents are directed to take appropriate decision on the representation so made by the petitioner as expeditiously as possible.