Dr. Ld Sharma vs State Of Mp And Others

This petition under Article 226 of the Constitution of India has been filed against the order dated 08th March, 2019 (Annexure P1) passed by the Chief Medical & Health Officer, Shivpuri, by which the petitioner has been posted in Primary Health Centre, Dinara (Karera), District Shivpuri from Community Health Centre, Narwar.

It is submitted by the counsel for the petitioner that as per the transfer policy, only the Collector is the competent authority, whereas the present transfer order has been issued by the Chief Medical & Health Officer, accordingly, it is beyond his jurisdiction. Further, the petitioner has been transferred in order to accommodate the respondent No.5, who has been posted in place of the petitioner at his own request. It is further submitted that the petitioner has not completed his minimum tenure of three years and thus, the order of transfer is bad.

Considered the submission made by the counsel for the petitioner.

So far as the tenure of three years is concerned, Clause 8.6 of the transfer policy provides that after completing three years of tenure at a particular place, the Officer of Class- I and Class-II cadre can be transferred.

However, this condition does not mean that a person cannot be transferred prior to completion of his three years' tenure. On the contrary, the condition of transfer policy is in the directory form that after completing tenure of three years the person/employee can be transferred to any other District.

So far as the present case is concerned, it is fairly conceded by counsel for the petitioner that the Chief Medical & Health Officer is the Administrative Officer of all the Hospitals situated in the District. From the order dated 08th March, 2019, it is clear that the petitioner has been posted from Community Health Centre, Narwar to Primary Health Centre, Dinara, (Karera), District Shivpuri. Thus, it is merely a shifting from one hospital to another hospital and this posting is well-within the Administrative Jurisdiction of Chief Medical & Health Officer. So far as the question of accommodation of respondent No.5 is concerned, the Authorities are well-within their rights to consider the personal difficulties of an employee and if they have decided to transfer the respondent No.5 in place of the petitioner, then it cannot be said that the order of transfer is bad, specifically when no mala fides are alleged against any of the respondents.

Further, it is well-established principle of law that the transfer policy is nothing, but it is only an executive instruction/guidelines and the guidelines do not confer upon the Government employee legally enforceable right. The scope of judicial review of transfer under Article 226 of Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India [(1993) 1 SCC 148], National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan [ (2001) 8 SCC 574], State Bank of India v. Anjan Sanyal [(2001) 5 SCC 508] and it has been held that the transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.

The Supreme Court in the case of Gujarat Electricity Board v. Atmaram Sungomal Poshani, reported in (1989) 2 SCC 602 has held as under :-

"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking 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. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules......."

The Supreme Court in the case of Rajendra Singh v. State of U.P., reported in (2009) 15 SCC 178, has held as under :-

"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."

The Supreme Court in the case of Airports Authority of India v. Rajeev Ratan Pandey, reported in (2009) 8 SCC 337, has held as under :-

"10. In the writ petition, the transfer order has been assailed by the present Respondent 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not even find any contravention of transfer policy in transferring Respondent 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.

In the present case, the High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant."

The Supreme Court in the case of State of U.P. v. Gobardhan Lal, reported in (2004) 11 SCC 402 has held as under :-

"7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."

The Supreme Court in the case of Union of India and Others vs. S. L. Abbas, reported in AIR 1993 SC 2444 has held as under:-

''7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right.''

Thus, in the light of the law laid down by the Supreme Court in the aforesaid various judgments, this Court is of the considered opinion that no case is made out warranting any interference in the matter. It is further submitted by counsel for the petitioner that a coordinate Bench of this Court by order dated 15th March, 2019 passed in the case of Chandra Shekhar Jha vs. The State of Madhya Pradesh in Writ Petition No. 5427 of 2019 and Balveer Singh Yadav vs. The State of Madhya Pradesh in Writ Petition No. 5429/2019 has issued notices and has passed interim order on the ground that in the light of the circular dated 22th February, 2019, the transfer order should have been passed by the Collector after prior approval of the In-charge Minister of the District. So far as the submission made by the counsel for the petitioner is concerned, the order relied upon by the petitioner is merely an interim order and is not binding on this Court.

Furthermore, it is well-established principle of law that the executive instructions dealing with the transfer policy are not enforceable in law. Furthermore, the Chief Medical & Health Officer is the Administrative Head of all the Hospitals posted in the District and he is well-within his rights to suffer the doctors from effective work of the Hospitals. Accordingly, this Court is of the considered opinion that the impugned order does not suffer from lack of jurisdiction.

Resultantly, this petition fails and is hereby dismissed.