Kamil Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 17204 MP

                                                                1
                            IN     THE        HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                        BEFORE
                                             HON'BLE SHRI JUSTICE SUJOY PAUL
                                                ON THE 16 th OF OCTOBER, 2023
                                               WRIT PETITION No. 26027 of 2023

                           BETWEEN:-
                           KAMIL KHAN S/O SHRI S S KHAN, AGED ABOUT 50
                           YEARS, OCCUPATION: ASSISTANT GRADE II IN THE
                           OFFICE OF BDO LAKHNADAUN SEONI (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI AMRIT LAL GUJPTA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR
                                 SECRETARY VALLABH BHAWAN, DISTRICT
                                 BHOPAL (MADHYA PRADESH)

                           2.    THE   COLLECTOR S E O N I DISTRICT            SEONI
                                 (MADHYA PRADESH)

                           3.    THE BLOCK DEVELOPMENT OFFICER JANPAD
                                 PANCHAYAT   LAKHNADAUN DISTRICT SEONI
                                 (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE)

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

The petitioner has assailed the transfer order dated 29.09.2023 and advanced singular contention. The contention is based on para-5.5 of the petition, which reads as under :-

"5.5). That, the petitioner who is also office bearer of Karamchari Sangh has been transferred without the Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/18/2023 4:40:12 PM

approval as the ban is already imposed and without the approval Co-ordination Committee the transfer order cannot be issued which is well evident from the transfer policy and is contrary to the norms of transfer policy dt. 24.6.2021 as per Ann. P/2 and instruction issued by the Govt. dt. 28.6.23 showing the ban period is effective as per Ann P/3. Because neither the petitioner is posted at the equivalent post which is held by him as no specific order posting has bene shown."

(Reproduced as such)

2. This Court on 10.10.2023 passed the following order :-

"Learned counsel for the petitioner by placing heavy reliance on para-5.5 of the petition submits that the petitioner has been transferred during ban period without there being any approval and coordination as per the requirement of the transfer policy.

Learned Government counsel submits that he will produce the transfer file for the perusal of the Court but prima facie order dated 29.09.2023 (Annexure-P/1) shows that such approval in coordination is indeed taken. List on 16.10.2023.

T ill next date of hearing, the impugned order dated 29.09.2023 (Annexure-P/1) to the extent it relates to the petitioner shall remain stayed.

It is made clear that if petitioner's contention in aforesaid para of the petition is found to be incorrect, this petition may be dismissed by imposing exemplary cost."

3. Shri Ankit Agrawal, learned Govt. Advocate produced the photocopy of relevant transfer file for perusal of this Court. This Court has carefully gone through the transfer file and the file shows that due process as per transfer policy dated 24.06.2021 is followed by the respondents. The decision to transfer the petitioner was taken in consonance with the transfer policy. Thus, petitioner has made incorrect averments in para-5.5 of the petition.

4. Lastly, Shri Gupta, learned counsel placed reliance on the Division Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/18/2023 4:40:12 PM

Bench judgment in W.A. No.1059 of 2021 (Annexure P/7) to bolster his submission that since transfer order violates transfer policy, order may be interfered with. He also claimed immunity from transfer being an office bearer of the Association.

5. No other point is pressed by the learned counsel for the parties.

6. As noticed above, there is no violation of transfer policy because the decision to transfer the petitioner is taken as per the policy through Co- ordination. Apart from this, the Division Bench of this Court in R.S. Choudhary vs. State of M.P. and others I.L.R. [2007] M.P. 1329 and Apex Court in various judgments have opined that transfer order cannot be interfered with on mere violation of transfer policy.

7. The petitioner's pleadings in para-5.5 of the petition are incorrect. It is not the pleadings that the order of transfer does not reflect that it is passed after following the procedure of Co-ordination. Indeed, it is specifically pleaded that "the ban is already imposed and without the approval Co- ordination Committee the transfer order cannot be issued which is well evident from the transfer policy........... ". For making incorrect averments and misrepresentation, the petition deserves to be dismissed with cost. So far ground relating to immunity of office bearer is concerned, the Division Bench of this Court in W.A. No.920 of 2021 (Kayyum vs. The State of Madhya

Pradesh) opined as under:

"A plain reading of transfer policy shows that normally immunity is granted from transfer to the office bearer so that they can pursue their association activities while remain posted at a place for which they are elected as office bearer. The petitioner is admittedly an office bearer of district level and he is transferred within the district.

Therefore, by no stretch of imagination, his transfer will Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/18/2023 4:40:12 PM

adversely affect his association activities. It will not deprive the petitioner to act as treasurer. Thus, the first ground is rejected being devoid of substance. Even otherwise Clause 8.19 of the Policy dated 19.05.2017 shows that it is directory in nature. The immunity from transfer is given to the office bearers "ordinarily". No enforceable right is created by clause 8.19 to remain posted at the same place. The administrative exigency and job requirement of the department must be given preference over association activities. The government employee must realize that he is appointed to perform the duties of his post and not to act as office bearer of an association. For this reason also, the said clause of policy is of no assistance to the petitioner."

(Emphasis Supplied)

8. The transfer order can be interfered with if it runs contrary to any statutory provision (not policy guidelines), proved to be malafide, passed by incompetent authority or changes the service condition to the detriment of the employee. Personal inconvenience cannot be a ground to interfere in the administrative order. No such ground is available in the petition.

9. The petition is dismissed with cost of Rs.5,000/- which shall be deposited before the Madhya Pradesh High Court Legal Services Committee, Jabalpur within 30 days from today, failing which, the Committee shall apprise this Court about non-compliance.

(SUJOY PAUL) JUDGE PK

Signature Not Verified Signed by: PARITOSH KUMAR Signing time: 10/18/2023 4:40:12 PM