K.K. Tiwari vs State of M.P. and Others

Sujoy Paul, J.—By filing this petition, petitioner has assailed the transfer order dated 04.09.2012 (Annexure P/1) whereby the petitioner is transferred from Gwalior to Bhind. Shri Prashant Sharma, learned counsel for the petitioner assailed the transfer order on the following grounds:-

(i) The petitioner is transferred on temporary basis without assigning any period/duration/tenure of such transfer, it makes transfer order as illegal.

(ii) The petitioner is an office bearer of an association which is clear from Annexure A dated 08.05.2008 filed with IA No. 7097/2012. Being an office bearer, petitioner has immunity from transfer.

(iii) Transfer order is malafide and is issued at the instant of respondents No. 3.

To elaborate, Shri Sharma submits that respondent No. 3 issued show cause notice on 02.12.2011 against the petitioner. The petitioner, in turn, submitted his reply Annexure P/9 to the respondents No. 3. Respondent No. 4, at this stage issued Annexure P/10 dated 03.08.2012 which shows that he became annoyed because of the reply of the petitioner, against the show cause notice issued by respondent No. 3. It is contended that in earlier litigation and contempt petition respondents No. 3 & 4 were party respondent and therefore, they were annoyed with the petitioner and became instrumental in issuing of the transfer order.

Mrs. Patankar, Learned Govt. Advocate on the other side supported the transfer order. She submits that petitioner is posted at Gwalior since 1998. He has no legal or statutory right to remain at the same place. Transfer order is passed in administrative exigency. There is no ingredient on which transfer order can be assailed.

I have heard learned counsel for the parties and perused the record.

This is settled in law that transfer order can be called in question if it runs contrary to or violates any statutory provision, proved to be malafide, issued by incompetent authority or changes service condition of the employee to this detriment.

Petitioner''s transfer order shows that petitioner is transferred on temporary basis. In the considered opinion of this Court, this stipulation in the transfer order showing that petitioner''s transfer order is on temporary basis, will not make transfer order as illegal. It is a matter of common knowledge that if another transfer order is passed petitioner would be subjected to a fresh transfer. Thus, every transfer order is temporary order and gives way to new order. It cannot be mentioned in the order that one is transferred permanently for all times to come. Thus, contention in this regard is devoid of substance. Petitioner has alleged malice on the basis of Annexure P/8, P/9 and P/10. Transfer order is neither issued by respondent No. 3 nor by respondent No. 4. Transferring authority has not been implead eo-nomine. Division Bench of this court in Chandrika Prasad Tiwari Vs. State of M.P., held that in absence of impleading transferring authority eo-nomine malice on fact cannot be alleged and taken into account. This view is also taken by the Supreme Court in State of Punjab and Others Vs. Chaman Lal Goyal, and Medley Minerals India Ltd. Vs. State of Orissa and Others, . There is no material on record which establishes even thread relation between show cause notice issued by respondent No. 3 and respondent No. 4 with the transfer order Annexure P/1.

In other words, the petitioner is unable to show any link between the action taken by respondent No. 3 and 4 and the transfer order issued by the different authority. In absence thereof, even if show cause notices are issued by respondents No. 3 & 4, it cannot be presumed that the same become the reason for issuance of transfer order against the petitioner. Even if no reply is filed by the respondents No. 3 and 4, in view of the pleadings and material on record, no relation between Annexure P/8, P/9 and P/10 and the transfer order is established. In absence thereof, I am unable to hold that transfer order is malicious in nature.

Petitioner''s document Annexure A, dated 08.05.2008, shows that the petitioner became office bearer on 08.05.2008. Clause 9.23 of the transfer policy shows that immunity from transfer is only for three years. Thus, as per transfer policy also, petitioner has no right or immunity beyond three years from 2008. This contention is also bereft of merits. Petitioner remained posted at Gwalior for more than 10 years. He has no lien on a particular place. Transfer is an incident and condition of service. No ingredients are available in this petition on which interference can be made. Petition sans substance and is hereby dismissed. No Costs.