Arvind Singh Diwakar vs State Of M.P. And Others

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by

the Government of India, this petition has been taken up through video conferencing to maintain social distancing. The parties are being represented by

the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

With the consent of the learned counsel for the parties, the matter is finally heard.

The present petition is being filed challenging the order dated 26.5.2020 passed by the District Collector Ashoknagar-respondent no.2, whereby the

petitioner has been transferred from Naisarai District Ashoknagar to Kadwaya, District Ashoknagar. The main ground taken by the petitioner against

his transfer is that within a short span of 14 months he has been transferred thrice.

It is submitted that the petitioner was working on the post of Naib Tahsildar, who was transferred from District Rajgarh to District Ashoknagar vide

order dated 8.3.2019, thereafter vide order dated 17.7.2019 the petitioner has been transferred from Chanderi to Bahadurpur. The petitioner has been

again transferred within a short span of two months from Bahadurpur to Nai Sarai vide order dated 29.8.2019 and thereafter after working for a short

span at Nai Sarai the petitioner has again been put to transfer vide order dated 26.5.2020 to Kadwaya, District Ashoknagar. It is submitted that the

petitioner is unnecessarily being harassed due to frequent transfers and same in turn causing great mental hardship to the petitioner as well as his

family members. A detailed chart is being prepared in the memo of petition to show the various transfer orders of the petitioner. It is argued that the

petitioner is the only member to support his family. His father and mother are old aged person and he has to take care of them. His sister Ku.

Priyanka and Ku. Abhilasha are also dependent upon the petitioner, therefore, transferring the petitioner frequently is causing undue hardship to the

petitioner as his family members. It is submitted that earlier also the petitioner was subjected to transfer which was challenged by the petitioner by

way of filing a writ petition before this Court, which was registered as W.P.No. 20736/2019, which was finally heard and decided vide order dated

30.9.2019, whereby the writ petition was disposed of with the direction to the petitioner to submit a representation to the competent authority, who

shall decide the representation within a period of four weeks. The aforesaid representation was kept pending with the authorities and without any

decision on the representation the petitioner has been again transferred. It is submitted that considering the aforesaid order passed in the earlier round

of litigation dated 30.9.2019, this Court has granted interim relief to the petitioner vide order dated 27.6.2020. It is argued that till date no response has

been filed by the respondents in the petition.

Per contra counsel appearing for the State has submitted that the petition can be disposed of and they will again consider the case of the petitioner and

decide the representation within the stipulated time frame.

Counsel appearing for the respondent no.3 has submitted that in pursuance to the earlier order passed by this Court the petitioner has not submitted the

representation to the respondents in the petition, rather the representation is being submitted to some other authority which is not even a party to the

litigation and the petitioner by making mis-representation to the Commissioner, Revenue has got obtained the interim relief from this Court stating that

the representation is kept pending with the authorities. It is submitted that the petitioner has only been transferred within the same district at the

distance of 54 kilometers from the present place of posting and transfer being the incident of service, the petitioner has to undergo transfer if there is

any administrative exigencies. It is argued that the transfer order can only be interfered if there is any malafide as alleged against the authorities or the

authorities not competent. He has relied upon the judgment passed by the Division Bench of this Court in the case of R. S. Chaudhary vs. State of

M.P. and Others, ILR [2007] MP 1329. He prays for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the petitioner has been transferred within the same district at a short distance of 50 kilometers. In the

earlier round of litigation the W.P.No.20736/2019 was disposed of vide order dated 30.9.2019, wherein the Coordinate Bench of this Court has

observed as under:

“Having heard learned counsel for the parties, in the interest of justice, petitioner is directed to file a fresh representation with the competent Authority canvassing

the grounds as marshalled in this petition along with all relevant documents together with certified copy of this order within three days of its receipt. If such a

representation is filed, the Authority concerned shall decide the same by a self contained speaking order, in accordance with law, as expeditiously as possible

preferably within a period of four weeks from the date of receiving such representation.

Till the representation is decided, the petitioner shall be allowed to continue at the present place of posting.

With the aforesaid, the petition stands disposed of.â€​

In pursuance to the order passed by this Court, the petitioner has submitted a representation to the Commissioner, Revenue who was not party to the

petition in the earlier round of litigation. It appears that the petitioner has submitted the representation, copy of which was sent to the Collector,

District Ashoknagar on 21.10.2019.

Counsel for the State could not point out the fact that whether the representation was submitted with the competent authority or the same is

decided or pending. A specific query was put to the counsel for the petitioner to show that the representation in pursuance to the earlier order passed

in writ petition was submitted to the competent authority or not. The petitioner's counsel could not clarify the aforesaid position and he has submitted

that as per the information given to him by the petitioner the representation pending before the competent authority and his statements are also being

recorded before the competent authority and the authority is on the verge of taking of final decision on the representation.

Considering the overall facts and circumstances of the case and also the law laid down by the Division Bench of this Court in the case of R. S.

Chaudhary (supra) and also taking into consideration the interim order granted by this Court on earlier occasion, this Court deems it appropriate to

dispose of the writ petition with a direction to the petitioner to re-submit the detailed representation to the respondents no.1 and 2 within a period of

seven working days from today and in turn the respondent no.1 and 2 are directed to consider and dwell upon the representation submitted by the

petitioner and take a final decision within a period of fifteen days from the date of receipt of certified copy of this order.

Needless to say that as the interim order was granted by this Court, therefore, till the decision on the representation the petitioner shall be permitted

to continue on his present place of posting.

Petition stands disposed of. No order as to costs.

E-copy of this order be provided to the petitioner. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in

respect of this order.