Rajendra Kumar Bhargava 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 application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

Present petition has been filed challenging the order dated 1.7.2020 passed by respondent No.2 whereby, the petitioner has been transferred from Division Gwalior (Sub Division Guna) to be posted at Division Morena (Sub Division Sheopur).

It is submitted by counsel for the petitioner that the petitioner has been frequently transferred vide order dated 28.12.2019 in pursuance to which, he has been relieved on 3.1.2020 and he joined the present place of posting on 4.1.2020, therefore, transfer order has been executed. It is argued that wards of the petitioner are studying in Sub Division Guna, where his elder son is student of Class XII and younger son is studying in class IX at Guna. He relied upon the judgment rendered by Hon. Apex court in the case of Director of School Education, Madras and others Vs. O.Karuppa Thevan and Another reported in 1994 (2) Supp. SCC 666 wherein matter arising out of mid session transfer was considered by the Hon. Supreme Court and it was held that normally an employee should not be transferred in mid session. He further relied upon the judgment rendered by Apex Court in the case of B.Varadha Rao Vs. State of Karnataka and others reported in AIR 1986 SC 1955 and has argued that Supreme court had intervened in the case of frequent transfer. He submits that a detailed representation has been submitted by the petitioner to the respondents which is lying pending and has not been decided. He therefore prayed for quashment of the impugned order.

Per contra, learned counsel for the State has opposed the prayer made by counsel for the petitioner stating that the transfer is condition of service. The petitioner is undergoing a government gob hence, he should have complied with the transfer order. The aforesaid transfer order has been passed out of administrative exigency. There is no malafide on the part of respondent authorities in passing the impugned order. He relied upon the judgment rendered by Division Bench of this court in the case of R.S.Chaudhary Vs. State of M.P I.L.R (2007) M.P. 1329 wherein, it has been held that that representation can only be considered if the petitioner joins the transferred place. On the basis of the above citation, learned counsel contended that the representation of the petitioner shall be considered as expeditiously as possible.

He further relied upon the judgment rendered by Division Bench of this court in Mridul Kumar Sharma Vs. State of M.P.

Reported in I.L.R (2015) MP 2556, and submitted that the petitioner has been transferred out of administrative exigency and prayed for dismissal of the writ petition.

Heard learned counsel for the parties and perused the record. From perusal of transfer order of the petitioner, it is apparent that the petitioner has been transferred out of administrative exigency. It is not disputed that the petitioner was earlier transferred prior to six months but now, looking to the administrative exigency, he has again been transferred.

A Division Bench of this Court in the case of R.S.Chaudhary (Supra) has held as under :

"Transfer Policy formulated by State is not enforceable as employee does not have a right and courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines".

Relying upon the judgment rendered by Hon'ble Supreme Court in the case of Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani,       reported in (1989) 2 SCC 602, Hon'ble Division Bench of this Court in Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R (2015) MP 2556, has held as under :

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to 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. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other".

The petitioner has not alleged any malafides or violation of any terms of condition of the transfer policy. Only ground which has been taken for challenging the impugned transfer order is of frequent transfer within six months. In such circumstances, only relief which can be given to the petitioner is that the respondent authorities may be directed to decide the representation submitted by the petitioner at an early date. Even otherwise, he must have been relieved by now as the transfer order is dated 1.7.2020. Therefore, considering the facts and circumstances of the case and the law laid down by Hon. Apex Court and by Division Bench of this court in the cases referred to herein above, this court deems it fit to direct the petitioner to approach respondent No.2 by resubmitting a detailed representation within seven days along with all relevant documents in support of his case including this order and in turn, the respondent No.2 will dwell upon the representation submitted by the petitioner and shall pass a self contained speaking order settling the grievance of the petitioner within a period of one month therefrom under intimation to the petitioner.

Needless to mention that this court has not expressed any opinion on the merits of the case.

Accordingly, this petition stands disposed of with no order as to the cost.

C.C. as per rules.