Raj Kumar Verma vs State of M.P.

Sujoy Paul, Judge

In this petition filed under Article 226 of the Constitution, petitioner has challenged the order Annexure-P/1. Earlier petitioner was transferred by order dated 26/11/2011, which was challenged by him by filing W.P. No. 8088/11. In the said case, learned counsel appearing for the petitioner has stated as under:

Learned counsel for the petitioner submits that the transfer order is bad in law at this stage. He submits that the petitioner is subjected to mid session transfer. He further submits that his younger brother committed suicide at Gwalior and, therefore, his parents have serious hesitation to come to Gwalior. He submitted representation dated 28/11/20211, which is pending before respondents. The petitioner submits that if transfer order is deferred till March, 2012, the petitioner will carryout the same after the said period.

The department after hearing the petitioner, cancelled the said order of transfer. Thereafter, petitioner''s representation and that of respondent No. 7 were considered and decided by order dated 07/03/2012 Annexure-P/1. By this order, the petitioner is transferred from Datia to Morena, whereas respondent No. 7 is transferred from Morena to Datia. On comparative assessment, the department found the case of respondent No. 7 more justiciable than petitioner and, therefore, considered her case favourably. This order is now under challenge in the present writ petition.

Shri D.P. Singh, learned counsel for the petitioner although submits that aforementioned statement in the first round of litigation in W.P. No. 8088/11 is not made on petitioner''s instructions by the then counsel, in the considered opinion of this Court, such a plea cannot be accepted. The petitioner never sought any review of the order passed in W.P. No. 8088/11 and, therefore, at this stage this contention cannot be accepted and is accordingly rejected.

In view of the petitioner''s statement in the first round that after transfer order is deferred till March, 2012, he will carryout the transfer order. The petitioner now cannot be permitted to say that transfer order dated 07/03/2012 is bad in law. Transfer is an incident of service. Transfer order can be interfered with only if it runs contrary to any statutory provision, changes service condition to petitioner''s detriment, proved to be a malafide order or passed by an incompetent authority. None of these grounds are available in the present petition. This is a prerogative of the employer to decide as to which employee is more suitable for the purpose of posting. The petitioner has not impleaded any authority by name and in absence thereof no malice can be attributed and established. This has been held by the Supreme Court in the judgment reported in State of Punjab and Others Vs. Chaman Lal Goyal, and by Division Bench of this Court in 2011 (3) MPHT 479 [Bhagwat Singh Verms Vs. State of M.P. and others]. This is the prerogative of the employer to decide posting of petitioner and respondent No. 7 on transfer. Merely because the decision of department is more in favour of respondent No. 7, would not mean that she has been accommodated or there is any illegality in it. The Apex Court in Mrs. Shilpi Bose and others Vs. State of Bihar and others, held as under:-

3...... We fail to appreciate the reasoning recorded by the High Court. If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer orders were passed on the request of the employees concerned.

In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holing a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.

(Emphasis Supplied)

In the entirety, I find no reason to interfere in this matter. More so, when petitioner has been transferred to Morena. It was his request in the first round that his transfer to Gwalior needs to be changed on account of the fact that his brother committed suicide at Gwalior and parents are not willing to go to said town where said unfortunate incident took place. The writ petition is dismissed. No costs.