Madhya Pradesh High Court
Jitendra Mishra vs The State Of Madhya Pradesh on 22 February, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22 nd OF FEBRUARY, 2024
WRIT APPEAL No. 244 of 2024
BETWEEN:-
JITENDRA MISHRA S/O SHRI HARGOVIND MISHRA,
AGED ABOUT 55 YEARS, OCCUPATION: WORKING AS
EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING
(P.H.E.) BLOCK TIKAMGARH, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI K.C.GHILDIYAL - SENIOR ADVOCATE WITH MS. WARIJA
GHILDIYAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETARY PUBLIC HEALTH ENGINEERING
DEPARTMENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. THE DEPUTY SECRETARY GOVERNMENTOF
MADHYA PRADESH PUBLIC HEALTH
ENGINEERING DEPARTMENT BHOPAL (MADHYA
PRADESH)
3. ENGINEER IN CHIEF PUBLIC HEALTH
ENGINEERING DEPARTMENT JAL BHAWAN
DISTRICT (MADHYA PRADESH)
4. THE SUPERINTENDENT ENGINEER (CIVIL)
PUBLIC HEALTH ENGINEERING DEPARTMENT
GWALIOR DISTRICT GWALIOR (MADHYA
PRADESH)
5. SHRI ANIL KUMAR LAGARKHA IN CHARGE
EXECUTIVE ENGINEER (CIVIL) PUBLIC HEALTH
ENGINEERING DEPARTMENT BLOCK DATIA
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 3/2/2024
4:52:59 PM
2
DIVISION DATIA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ROHIT JAIN - GOVERNMENT ADVOCATE FOR RESPONDENTS
NO.1 TO 4 AND SHRI DINESH KUMAR UPADHYAY - ADVOCATE FOR
RESPONDENT NO.5)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Assailing the order dated 23.01.2024 passed by the learned Single Judge in
dismissing Writ Petition No.21412 of 2023, the writ petitioner is in appeal.
2. It is the case of the petitioner that he was working on the post of Executive
Engineer in the respondent/Department. On 22.10.2021 he was transferred from
Tikamgarh to Anuppur. Thereafter on 29.03.2023, he was transferred from
Anuppur to Tikamgarh where he joined his services on 25.05.2023 as he was
not relieved immediately in pursuance to order dated 29.03.2023. Again within a
short period, he has been transferred vide impugned order dated 16.08.2023 to
Public Health Engineering (Civil), Block Datia, District Datia. The aforesaid
order of transfer was assailed by the petitioner by filing a writ petition on the
ground of frequent transfer as well as on the ground of mala fides to the extent
that just to accommodate respondent No.5, in place of the petitioner, the entire
exercise has been carried out by the respondents. The learned Writ Court failed
to consider the aforesaid aspect of the matter and placing reliance upon the
judgment passed by the Hon'ble Supreme Court in the case of
T.S.R.Subramanian and others Vs. Union of India and others reported in
(2013) 15 SCC 732 has dismissed the writ petition holding that Class-I
employee has no right to raise any objection against the transfer. The grounds
raised by the petitioner regarding frequent transfer and mala fides against the
respondents/authorities have not even been touched, therefore, the present
appeal has been filed.
3. The record indicates that this Court vide order dated 01.02.2024 has
directed the petitioner to join at the transferred place of posting i.e. at Datia and
the same shall be subject to final outcome of this appeal. The transfer order of
the petitioner was issued on 16.08.2023. As far as grounds of frequent transfer
are concerned, the earlier transfer order dated 22.10.2021 was on the own
request of the petitioner and thereafter he was transferred in the year 2023 and
vide impugned order owing to administrative exigencies, he has been
transferred, therefore the ground of frequent transfer is not available to the
petitioner. The authorities are having every right to transfer even a Class-I
employee when there is an administrative exigencies. As far as mala fides are
concerned, except alleging that just to accommodate respondent No.5, the
petitioner has been transferred, the same does not constitute any malafic action
against the respondents/authorities. The person against whom mala fides are
alleged, is required to be made as a party in the petition but the petitioner has
failed to make him a party. The mala fides are to be specific, clear and should
be reflected from the pleadings as well as the documents placed before the
Court.
4. The law with respect to transfer is well settled in large number of cases
including in Union of India vs S.L. Abbas, AIR 1993 SC 2444, S.K.
Nausad Rahaman vs Union of India, 2022 (2) JLJ 147, Gujarat
Electricity Board vs Atmaram Sungomal Poshani, (1989) 2 SCC 602,
State of U.P. vs Siya Ram, (2004) 7 SCC 405 and by the Division Bench of
this Court in the cases of R.S. Chaudhary vs State of M.P., ILR (2007)
MP 1329 and Mridul Kumar Sharma vs State of M.P., ILR (2015) MP
2556. Transfer being one of the conditions of service can only be interfered in
exceptional circumstances i.e., if the same is an outcome of mala fides or an
outcome of colourable exercise of power on the part of the authorities or if
there is change in the service conditions of the employee. Thus, no interference
is called for.
5. It is a settled proposition of law that transfer can only be interfered by the
Court on specific ground as has been considered by the Division Bench of this
Court in the case of R.S.Chaudhary Vs. State of M.P. and others reported
in ILR (2007) MP 1329, wherein the Division Bench has held as under :-
"Transfer Policy formulated by State is not enforceable as employee
does not have a right and courts have limited jurisdiction to
interfere in the order of transfer. Court can interfere in case of
mandatory statutory rule or action is capricious, malicious,
cavalier and fanciful. In case of violation of policy, proper remedy
is to approach authorities by pointing out violation and authorities
to deal with the same keeping in mind the policy guidelines."
6. The Division Bench of this Court in the case of Mridul Kumar Sharma
Vs. State of M.P. reported in I.L.R (2015) MP 2556 has also considered this
aspect and directed for consideration of the representation in the event when the
employee complies with the transfer order and joins at the transferred place of
posting. The same reads as under :-
"Transfer of a Government servant appointed to a particular cadre
of transferable posts from one place to other is an incident of
service. No Government servant or employee of public undertakings
has legal right for being posted at any particular place. Transfer
from one place to other is generally a condition of service and the
employee has no choice in the matter. Transfer from one place to
other is necessary in public interest and efficiency in the Public
Administration. Whenever, a public servant is transferred he must
comply with the order but if there be any genuine difficulty in
proceeding on transfer it is open to him to make representation to
the competent authority for stay, modification, or cancellation of
the transfer order. If the order of transfer is not stayed, modified, or
cancelled the concerned public servant must carry out the order of
transfer. If he fails to proceed on transfer in compliance to the
transfer order, he would expose himself to disciplinary action
under the relevant Rules, as has happened in the instant case. The
respondent lost his service as he refused to comply with the order of
his transfer from one place to the other."
7. Interference in transfer cases can be made in exceptional circumstances.
The aforesaid aspect was considered by the Hon'ble Supreme Court in the case
of Somesh Tiwari Vs. Union of India and Others reported in (2009) 2 SCC
592 wherein it is held as under:-
"16. Indisputably an order of transfer is an administrative order.
There cannot be any doubt whatsoever that transfer, which is
ordinarily an incident of service should not be interfered with, save
in cases where inter alia mala fide on the part of the authority is
proved. Mala fide is of two kinds - one malice in fact and the second
malice in law. The order in question would attract the principle of
malice in law as it was not based on any factor germane for passing
an order of transfer and based on an irrelevant ground i.e. on the
allegations made against the appellant in the anonymous
complaint. It is one thing to say that the employer is entitled to pass
an order of transfer in administrative exigencies but it is another
thing to say that the order of transfer is passed by way of or in lieu
of punishment. When an order of transfer is passed in lieu of
punishment, the same is liable to be set aside being wholly illegal."
8. In the present case as the petitioner has joined at the transferred place of
posting i.e.. Datia, therefore, no fruitful purpose will be served by keeping the
writ appeal pending. Virtually, the petitioner has executed the transfer order. In
view of the judgment passed in the case of R.S.Chaudhary (supra), the only
relief that can be extended to the petitioner is to permit him to submit his
representation before the authorities for redressal of his grievances. Looking to
the facts and circumstances of the present case and looking to the fact that the
scope of interference in transfer matters is limited and the same can only be
interfered in exceptional circumstances as carved out by Hon'ble Supreme
Court in catena of judgments as well as by the Division Bench of this Court, no
other relief can be extended to the petitioner.
9. Under these circumstances, the learned Writ Court has rightly assessed the
entire matter and dismissed the writ petition. The petitioner is always at liberty
to approach the respondents/authorities by way of filing the representation for
redressal of his grievance.
10. The writ appeal sans merit and is accordingly dismissed.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM
