Nishchal Jharia vs State of M.P.

Sujoy Paul, J.—Petitioner Nishchal Jharia is present in person. Petitioner submits that his transfer from Gwalior to Sagar is bad in law because he is subjected to frequent transfer. By placing reliance on Annexure P-3 dated 27.9.2011, the petitioner submits that he was transferred from Panna to Gwalior and joined in the month of October 2011. He got his children admitted in the schools at Gwalior and within a short span of time he has been transferred again. Petitioner submits that the transfer order is passed after the cut off date provided in the transfer policy. No other point is pressed by the petitioner.

In B. Varadha Rao Vs. State of Karnataka and Others, , the Supreme Court has held that frequent transfer of class-3 and class-4 employees uproot their family. Relevant portion of it reads as under:-

But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer.

In the present case, the petitioner is a class-2 employee and not a low paid class-3 or class-4 employee. Thus, the impugned order, Annexure P-1, does not fall within the ambit of "frequent transfer".

Transfer is a condition of service. Transfer order can be interfered with only when it runs contrary to the statutory provision, changes the service conditions of an employee to his detriment, issued by an incompetent authority or the transfer order is proved to be a malafide one, etc.

Division Bench of this Court in the case of R.S. Choudhary Vs. State of M.P reported in ILR (2007) M.P 1329 has held as under:-

In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the ground that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity.

.......Emphasis supplied

The violation of transfer policy which is only a guideline will not render the transfer order as illegal. So far the education of children is concerned, the petitioner can seek admission of the children at the transferred place. Petitioner is an officer of disciplined force and he is required to follow the order in the administrative interest. No other legal flaw is pointed out. On the basis of aforesaid, I find no reason to interfere in the transfer order. The petition is devoid of merit and substance and is hereby dismissed. However, this order will not precluded the petitioner to pursue his departmental representation.