Rajendra Kumar Waikar vs State Of Madhya Pradesh And Others

 Â

Petitioner has filed the present writ petition challenging order dated 07.07.2020 and 07.07.2020 contained in Annexures P/6 and P/7 respectively.

By said orders, petitioner who is working on the substantive post of District Supply Controller, Sagar has been transferred as Deputy Director,

Directorate of Food and Civil Supplies and Consumer Protection Department, Bhopal. By another order dated 07.07.2020, respondent No 3 namely

Bharatkup Singh, who is working on substantive post of District Supply Officer, District Damoh has been transferred and posted as Incharge District

Supply Controller, Sagar, MP.

Counsel appearing for petitioner has called in question the aforesaid transfer orders on the ground that petitioner is subjected to frequent transfers.

On 06.08.2018, petitioner was transferred from Ujjain to Sagar and then by modified transfer order dated 02.07.2019, he was transferred from Sagar

to Bhopal. Thereafter, on 16.01.2020, petitioner was again transferred from Bhopal to Sagar and vide impugned order dated 07.07.2020, petitioner was

transferred from Sagar to Bhopal. Petitioner has also raised the ground that services of petitioner and respondent No.3 is governed by Madhya

Pradesh Food, Civil Supplies and Consumer Protection Department Services Recruitment Rules, 2013 (hereinafter referred as ‘Rules of 2013’).

As per the schedule 1 of Rules of 2013, post of District Supply Controller is Class-I post whereas the post of District Supply Officer is a Class-II post.

On the same day two orders were passed; by one order petitioner was transferred and by another order respondent No.3 was brought in place of

petitioner. Transfer order of petitioner is passed only to adjust respondent No.3 in his place ignoring the Rules of 2013, therefore, transfer order is

arbitrary, illegal and in violation of fundamental rules guaranteed under Article 14, 16, 19 and 21 of the Constitution of India. On aforesaid grounds,

petitioner made a prayer for setting aside of impugned transfer orders dated 07.07.2020 contained in Annexure P/6 and P/7.

Counsel appearing for respondent No.3 filed its reply and opposed the prayer of petitioner on the grounds that respondent No.3 had already joined

on the post of District Supply Controller at Sagar. Transfer order of a government employee cannot be interfered unless it is in violation to some

statutory provision of law or effectuated with malafide. Petitioner has failed to point out violation of any statutory provision in his transfer order.

Petitioner has already spent considerable time at Sagar and for a short period he was transferred out of Sagar. The ground of frequent transfer is not

available to the petitioner, as it has been consistently held by High Court that persons holding Class-I post even if transferred in short intervals does not

warrant interference by Court. Counsel appearing for respondent No.3 has relied on the judgment reported in 2019 (1) MPLJ 635, Prakash Srivastava

vs State of M.P., wherein petitioner was transferred within a short period of 14 days and ground was taken that order was issued to adjust and

accommodate private respondent therein but the same was dismissed by Single Judge and later on order was confirmed in case of Prakash Srivastava

by the Division Bench. It is also argued by him that post of District Supply Controller and Deputy Director are posts of same Cadre and scale under

Rules of 2013, therefore, transfer order of petitioner cannot be said to be in violation of any statutory rule. Transfer order has been passed only on

administrative exigency, as post of Deputy Director was vacant at Bhopal. Counsel also relied on judgment of this court passed in W.P. No.

5461/2019, Ms. Sheetal Malviya vs State of M.P. and others. In this case regular Chief Municipal Officer was sought to be replaced by posting of

Revenue Inspector as Incharge Chief Municipal Officer. Learned Single Judge has dismissed the writ petition and order was affirmed in W.A. No.

984/2019 dated 02.07.2019. On aforesaid grounds, respondent No. 3 prayed for dismissal of writ petition.

Heard the counsel appearing for the parties.

In this writ petition, transfer order of petitioner and respondent No.3 is to be tested on the ground whether transfer order is arbitrary, malafide or

contrary to statutory rules and whether same has been passed only to adjust respondent No.3 in place of petitioner. Grounds of malafides has not been

raised by the petitioner. Ground of frequent transfer is also not available to the petitioner. He is a Class-I officer and a number of judgments have

been passed by this Court and also by Apex Court negativating ground of frequent transfer of Class-I employee. Petitioner is District Supply

Controller and a Class-I officer and the ground of frequent transfer is not available to the petitioner.

Two separate transfer orders were passed on 07.07.2020, by one order petitioner who was posted as Deputy Supply Controller at Sagar was

transferred as Deputy Director, Bhopal and by another transfer order respondent No.3, who was working as District Supply Officer, Damoh was

transferred as Incharge District Supply Controller, Sagar. As per Schedule 1 of Rules of 2013, post of District Supply Controller and Deputy Director

are of same cadre and scale. Post of District Supply Controller is classified as Class-I post in Rules of 2013. Post of District Supply Officer is Class-II

post and same is equal to post of Assistant Director. Transfer order dated 07.07.2020 cannot be said to be a routine transfer order. On the same day,

two transfer orders were passed, by one order petitioner was transferred to Bhopal as Deputy Director and by another order respondent No.3 was

brought in his place as Incharge District Supply Controller. Respondent No.3 is a Class-II officer and he is transferred and posted as Incharge District

Supply Controller on Class-I post. The petitioner can be transferred according to Rules from post of District Supply Controller to post of Deputy

Director as both the posts are of same cadre and scale, but cannot be replaced by respondent No.3, who is holding the post of District Supply Officer

which is a Class-II post and he has been transferred and given charge of District Supply Controller, which is a Class-I post.

Counsel appearing for respondent No.3 has relied on the judgment passed by Division Bench in W.A. No. 984/2019, Ms. Sheetal Bhalavi vs State

of M.P. In that case, employees holding the post of Revenue Sub Inspector has been posted as Incharge Chief Municipal Officer. The State

Municipal Service Executive Rules, 1973, provides for filling up of vacancies by State Government in all cases of Municipal Councils by direct

recruitment and promotion, which includes Revenue Inspector and Revenue Sub Inspector of Class-C Municipal Council and employees of Municipal

Council having at least five years of experience on the respective post. By impugned order, 69 persons were transferred due to administrative

exigencies. In these circumstances, order of transfer was upheld as not arbitrary or illegal. In the present case, on the same date two transfer orders

were passed. Respondent No.3 was brought in the place of petitioner as Incharge District Supply Controller and petitioner was transferred from Sagar

to post of Deputy Director. No other employee has been transferred by the impugned order. Impugned order is tailor made order to suit Respondent

No.3. He is brought in the place of petitioner ignoring the Rules of 2013, Schedule 1. Impugned order is not routine transfer order and order is

arbitrary in nature and passed to adjust respondent No.3 in place of petitioner ignoring the Rules of 2013.

In view of aforesaid discussion, transfer orders dated

07.2020, contained in Annexure P/6 and P/6, in respect of petitioner and respondent No.3 are quashed. Petitioner and respondent No.3 shall assume

charge on places where they were working prior to passing of transfer orders dated 07.07.2020.

With aforesaid directions, writ petition is allowed and disposed off.