Madhya Pradesh High Court
Sunil Singh Khinchi vs The State Of Madhya Pradesh on 16 October, 2023
Author: Sushrut Arvind Dharmadhikari
1 WRIT APPEAL No.1214 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 16th OF OCTOBER, 2023
WRIT APPEAL No. 1214 of 2023
BETWEEN:-
SUNIL SINGH KHINCHI S/O SHRI UDAI SINGH KHINCHI, AGED ABOUT
38 YEARS, OCCUPATION: SERVICE, PANCHAYAT SECRETARY IN GRAM
PANCHAYAT NAGUKHEDI, TEHSIL & DISTRICT - DEWAS, R/O 38,
SHIVSHAKTI NAGAR, DEWAS (MADHYA PRADESH)
.....APPELLANT
(BY SHRI L. C. PATNE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH, SECRETARY TO THE
GOVERNMENT OF MADHYA PRADESH, DEPARTMENT OF
1.
PANCHAYAT AND RURAL DEVELOPMENT, VALLABH BHAWAN
MANTRALAYA, BHOPAL (MADHYA PRADESH)
SHRI PRAKASH CHOUHAN, CHIEF EXECUTIVE OFFICER, JILA
2.
PANCHAYAT, DEWAS (MADHYA PRADESH)
THE CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT, DEWAS
3.
(MADHYA PRADESH)
SHRI NARENDRA SINGH RATHORE, GRAM ROJGAR SAHAYAK,
4. GRAM PANCHAYAT NAGUKHEDI, TEHSIL AND DIST. DEWAS
(MADHYA PRADESH)
SHRI VIJAY PANCHAL, CONTRACTOR AND POLITICAL WORKER,
5. GRAM PANCHAYAT NAGUKHEDI, TEHSIL AND DIST. DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE)
This appeal coming on for admission this day, Justice Sushrut
Arvind Dharmadhikari passed the following:
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 18-10-2023
19:29:03
2 WRIT APPEAL No.1214 of 2023
ORDER
This writ appeal filed under Section 2(1) of of the Madhya Pradesh
Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005, assails
the impugned order dated 26/07/2023 passed in W.P. No.17111/2023
whereby in the writ petition challenging the order dated 07/07/2023
passed by Chief Executive Officer, Janpad Panchayat, Dewas whereby
the appellant has been transferred from Gram Panchayat Nagukhedi,
Janpad Panchayat, Dewas, District-Dewas to Gram Panchayat Kulala,
Janpad Panchayat, Sonkatch, District-Dewas.
2. The brief facts of the case are that the appellant is working on the
post of Secretary, Gram Panchayat. The grievance of the appellant is that
he has been transferred on the recommendation of the Hon'ble Minister
vide order dated 07/07/2023, which is quite evident from Annexure-R/1
filed alongwith the reply.
3. Learned counsel for the appellant submitted that the transfer order
has been passed during the ban period, which is in violation of transfer
policy. It is further pointed-out that Clause 9.3 of the transfer policy
provides that transfer can be effected on account of administrative
reasons, whereas in the present case there is no administrative exigency
shown for transfer of the appellant, except at the behest of politician.
Learned counsel for the appellant has placed reliance on the order passed
in W.P. No.1191/2013 (S) Pratap Singh Manderiya vs. State of M.P.
(Gwalior Bench), in which this Court was pleased to hold that transfer
order can be passed only in the administrative exigency or in public
interest. In Sarwesh Kumar Awasthi vs. U.P. Jal Nigam and others
2003 (11) SCC 740, Apex Court has held that in power of transferring an
officer cannot be yielded arbitrarily, malafide or in exercise against an
efficient and independent officer or at the instance of politician. For
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 18-10-2023
19:29:03
better administration, the officer concerned must have freedom from fear
or being harassed by such repeated transfer/transfers ordered at the
instance of someone, who has nothing to do with the business of
administration.
4. Learned counsel for the appellant also relied on the judgment of
this Court by Division Bench in the case of Radheshyam Mandloi vs.
State of M.P. and others 2021 (3) M.P.L.J. 580, where the Court has
held that transfer order has been passed in colourable exercise of the
powers, hence needs to be set-aside. It is also contended that as per
Annexure-R/1, it is the transfer order, which is purely based on the
recommendation of Hon'ble Minister, therefore, this order is liable to be
set-aside.
5. In response, learned Government Advocate for the
respondents/State submitted that no interference in the order of transfer is
warranted, as the same has been done looking to the administrative
exigency. The transfer does not fall within the category of frequent
transfer nor is given by any malice. The transfer policy is nothing but a
guideline, which does not have any statutory force. With the aforesaid
submissions, it is submitted that petition has no merits and deserves to be
dismissed.
6. Heard learned counsel for the parties and perused the record.
7. The learned Single Judge while disposing off the writ petition has
assailed the transfer order on the ground that the respondent No.5 is a
Civil Contractor, who has constructed a Naali without administrative and
technical approval from the Gram Panchayat and pressurized the
appellant to make a payment. The Sarpanch and other Panch prepared a
spot Panchanama on 15/06/2023. The appellant has reasons to believe
that he is being transferred under the influence of respondent No.5 to
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 18-10-2023
19:29:03
other Gram Panchayat, who may illegally get released his payment.
Learned Single Judge has disposed off the writ petition holding that
appellant is working on a transferable post. He has been transferred
during relaxation period of the transfer policy and no malafide can be
treated and disposed off the writ petition.
8. Clause 9.3 of the transfer policy clearly provides that during ban
period, the transfer can be effected only after obtaining the concurrence
and information from the concerned Minister.
9. A bare perusal of the letter dated 07/07/2023 (Annexure-R/1), it
can be seen that the Hon'ble Minister has recommended the transfer of
the appellant and others. It is apparent that transfer has been carried-out
in a colourable exercise of power and at the behest of Hon'ble Minister,
which is against transfer policy.
10. As per law laid down in the case of Sarwesh Kumar Awasthi
(Supra), transfer order at the instance of a politician is not sustainable in
the eyes of law. In view of the aforesaid, the order dated 26/07/2023
passed in W.P. No.17111/2023 by the learned Single Judge cannot be
allowed to stand. The same is accordingly set-aside. As a consequence,
the order impugned dated 07/07/2023 passed by Chief Executive Officer,
Janpad Panchayat, Dewas whereby the appellant has been transferred
from Gram Panchayat Nagukhedi, Janpad Panchayat, Dewas, District-
Dewas to Gram Panchayat Kulala, Janpad Panchayat, Sonkatch, District-
Dewas is also hereby set-aside.
11. The writ appeal is allowed.
No order as to costs.
(S.A. Dharmadhikari) (Pranay Verma)
Judge Judge
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 18-10-2023
19:29:03
Aiyer*
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 18-10-2023
19:29:03
