Gyanchand Banthariya vs The State Of Madhya Pradesh
2023 Latest Caselaw 16602 MP

                                              1

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                                         BEFORE
                 HON'BLE SHRI JUSTICE ANAND PATHAK
                            ON THE 9th OF OCTOBER, 2023

                       WRIT PETITION NO. 25806 of 2023

       BETWEEN:-

       GYANCHAND BANTHARIYA W/O LATE SH. GOPAL
       BANTHARIYA, AGED ABOUT 61 YEARS, OCCUAPTION
       -JUNIOR DATA ENTRY OPERATOR R/O DUBEY
       COLONY, ASHOKNAGAR (MADHYA PRADESH)
                                                                         .....PETITIONER

       (BY SHRI KABIR QUERESHI- ADVOCATE)

       AND
1.     THE STATE OF MADHYA PRADESH THROUGH ITS
       PRINCIPAL   SECRETARY,    DEPARTMENT   OF
       REVENUE, VALLABH BHAWAN, BHOPAL (MADHYA
       PRADESH)
2.     COMMISSIONER,   LAND    RECORDS,  RAJASWA
       BHAWAN,   NAKA   CHANDRABADNI     GWALIOR
       (MADHYA PRADESH)
3.     COLLECTOR, ASHOKNAGAR (MADHYA PRADESH)
4.     JOINT COLLECTOR, ASHOKNAGAR, (MADHYA
       PRADESH)
5.     ASST.   SUPERINTENDENT,    LAND    RECORD
       ASHOKNAGAR, (MADHYA PRADESH)
                                                                      .....RESPONDENTS

       (BY SHRI VISHAL TRIPATHI - GOVERNMENT ADVOCATE)

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

1. The instant petition is preferred by the petitioner under Article 226 of

the Constitution being crestfallen by the order dated 27-09-2023 passed by respondent No.3 whereby petitioner has been transferred from the Office of Land Records, Ashokngar to Tahsil Mungaoli District Ashoknagar.

2. It is the submission of counsel for the petitioner that at present he is working as Junior Data Entry Operator at the Office of Land Records, Ashokngar and he has only nine months to retire. He specifically submits that petitioner is going to retire in July, 2024. Therefore, he has only nine months left for superannuation and no administrative exigency would be served if he is transferred at this stage. It is further submitted that daughter of petitioner is suffering from green fungus and petitioner has to take care of her. Thus, prayed for setting aside the impugned transfer order.

3. Learned counsel for the respondents 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 July, 2024. Besides that, petitioner's daughter is suffering from green fungus and petitioner has to take care of her, 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 nine months at such a distant place (70 Km.), 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 working if they have one year to retire. In the present case, almost nine months are left for petitioner to retire. What was the dire administrative need which compelled the respondents/State to transfer an employee when 9 months are left for 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 9 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 ought be based upon some sound purpose and thoughtfulness.

9. Considering the facts and circumstances of the case and the fact that only nine months are left in retirement of petitioner wherein petitioner's Pension Payment Order is to be prepared and for other formalities also, petitioner is required at the present place of posting and even otherwise no administrative exigency would be served if he is transferred for this short span, petition deserves to be and is hereby allowed. Impugned transfer order passed by the respondents is hereby set aside. Petitioner shall be permitted to discharge his duties at his present place of posting.

10. Petition stands allowed and disposed of.

                                                            (ANAND PATHAK)
Anil*                                                           JUDGE


        ANIL
                 Digitally signed by ANIL KUMAR
                 CHAURASIYA
                 DN: c=IN, o=HIGH COURT OF MADHYA
                 PRADESH BENCH GWALIOR, ou=HIGH



        KUMAR
                 COURT OF MADHYA PRADESH BENCH
                 GWALIOR, postalCode=474001,
                 st=Madhya Pradesh,
                 2.5.4.20=8512f40a1a9eaa50b6802d068b5
                 1dae27e84c266b09d283f0799e67cdc7df5


        CHAURA
                 0f,
                 pseudonym=F7E569EA2A8955818DF870
                 B0C50764B46C526E80,
                 serialNumber=EC534CBB3B245F050119F



        SIYA
                 06F4A296DD83C765A1E2ACC6EC7D8BD8
                 CBCC9C2446E, cn=ANIL KUMAR
                 CHAURASIYA
                 Date: 2023.10.10 19:49:05 +05'30'