Jai Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 16550 MP

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 7th OF OCTOBER, 2023
              WRIT PETITION No. 25270 of 2023

BETWEEN:-

JAI SINGH S/O SHRI RAMEH PRATAP SINGH,
AGED ABOUT 38 YEARS, OCCUPATION: SAMITI
PRABANDHAK R/O VILLAGE AND POST KARMAI,
DISTRICT SIDHI (MADHYA PRADESH)
                                                .....PETITIONER
(BY SHRI VISHNU CHANDRA DWIVEDI - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH       THE       SECRETARY
      COOPERATIVE           DEPARTMENT
      MANTRALAYA,    VALLABH    BHAWAN,
      BHOPAL (MADHYA PRADESH)

2.    CADRE COMMITTEE DISTRICT CENTRAL
      COOPERATIVE BANK SIDHI DISTRICT
      SIDHI (MADHYA PRADESH)

3.    DISTRICT CENTRAL COOPERATIVE BANK
      SIDHI      SIDHI,THROUGH      THE
      ADMINISTRATOR      DISTRICT  SIDHI
      (MADHYA PRADESH)

4.    INCHARGE CHIEF EXECUTIVE OFFICER
      DISTRICT CENTRAL COOPERATIVE BANK
      SIDHI   DISTRICT  SIDHI  (MADHYA
      PRADESH)

5.    SEWA SAHKARI SAMITI MYDT. DHANHA
      SIDHI  DISTRICT  SIDHI   (MADHYA
      PRADESH)
                                              .....RESPONDENTS
                                     2


   (BY SMT.SWATI A.GEORGE - DY. GOVERNMENT ADVOCATE)

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

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 27.9.2023 passed in File No.Estb./2023/912 whereby the petitioner has been transferred from Samiti Dhanha, Branch Semariya to Samiti Jamodi, Branch Sidhi.

2. It is submitted by counsel for the petitioner that petitioner is working on the post of Samiti Prabandhak and as per the services rules, the petitioner can be transferred by Staff Sub Committee whereas the order under challenge has been issued by the C.E.O. Jila Sahkari Kendriya Bank Maryadit, Sidhi with the approval of Collector and Bank Administrator.

3. It is submitted that the where the Administrator is functioning then Staff Sub Committee shall consists of Administrator, nominee of the State Govt. as well as the C.E.O. It is further submitted that post of C.E.O. is lying vacant and accordingly the charge of the said post was given by Managing Director to the respondent no.4 whose substantive post is Accounts Officer and later on the respondent no.4 has further given the charge of the said post to one Chandrashekhar Prasad Pandey whose substantive post is Accountant and Chandrashekhar Prasad Pandey has issued the impugned transfer order. However, it is fairly conceded that the petitioner has already completed sufficiently long time at the present place of posting. It is further submitted that

petitioner is a contractual employee, therefore, he cannot be transferred.

4. Per contra, the petition is vehemently opposed by counsel for the 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.

5. Heard the learned counsel for the parties.

6. It is the case of the petitioner that the Staff Sub Committee is not in existence, therefore, the order of transfer cannot be passed. It is sufficient to mention here that the petitioner has not filed copy of his agreement. It is well established principle of law that service conditions of the contractual employee will be governed by the terms and conditions of their agreement. Since the petitioner has not filed copy of the agreement, therefore, he cannot say that he was holding a non-transferrable post. Furthermore, this court in the case of Shabana Begum Vs. State of M.P. passed in W.P.No.1027/2021 decided on 5.2.2021 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 vuqc/a 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 vuqc/a 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 with a rider that transfer order can be issued under special circumstances.

9. This Court in the case of Manoj Verma Vs. State of M.P. passed in W.P.No.17846/2023 decided on 28.7.2023 has held that in absence of any allegations of malafide, it cannot be said that transfer of an employee is not under special circumstances. Transfer is an exigency of service and no-one can claim that he should be posted at a particular place. Furthermore, transfer order has been issued by the C.E.O. Zila Sahkari Kendriya Bank Maryadit Sidhi after the approval by the Collector and the Bank Administrator.

10. At this stage it is submitted by counsel for the petitioner that in the case of Bhavna Kale Vs. State of M.P. decided on 15.3.2023 in W.P.No.29501/2022 this Court has held that the imposition of punishment in absence of Board is bad in law.

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

12. It is sufficient to mention here that transfer is not a punishment and, therefore, the law laid down by this Court in respect of departmental

action will not apply being distinguishable on facts. No malafides have been alleged and even according to the petitioner he has already spent a considerable long time at the present place of posting. Accordingly, no case is made out warranting interference.

13.The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.10.11 16:41:58 +05'30' HS