Raman Kumar More vs State Of Madhya Pradesh & Others

The challenge in the present appeal is to an order passed by the learned Single Bench on 6.10.2107 in W.P. No.14898/2017 whereby the

transfer of the appellant to Singrauli on 16.7.2017 was not interfered with.

The appellant was posted at Raisen for 8 years. He was transfered to Pachmarhi at his own request on 10.7.2017. But before the

appellant could join at Pachmarhi, he was transferred to Singrauli on 16.7.2017. The appellant submitted representation on 18.7.2017 for

cancellation of his transfer to Singrauli without stating therein that he has not joined at Pachmarhi before the order was passed for his transfer

to Singrauli. The appellant later challenged his transfer order dated 16.7.2017 before this Court in W.P. No.10810/2017. The said writ petition

was disposed of on 26.7.2017 with a direction to the Respondents to decide the representation of the appellant within a period of one month.

The operating part of the order reads as under :-

“For a period of one month or till such representation is decided, whichever is earlier, the operation of the impugned transfer order dated

16.7.2017, so far as it relates to the present petitioner shall remain stayed.â€​

After the said order was passed, the representation of the appellant was declined on 7.9.2017 wherein, the appellant was informed that his

transfer to Singrauli would stand. The challenge in the writ petition was to such communication dated 7.9.2017.

As per the appellant, he joined at Pachmarhi in terms of order passed by this Court, therefore, his transfer to Singrauli is not justified.

We have heard learned counsel for the parties and find no merit in the present writ appeal. The order of this Court is of stay of the order

dated 16.7.2017. The order of stay does not mean that the order stands set aside. Reference is made to the judgment of Supreme Court

reported as (1992) 3 SCC 1 (Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras)

wherein, it has been held that stay of order does not mean setting aside of that order.

Relevant extracts of the judgment reads as under :-

“10................We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court

staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had

been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said

appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under

the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the

learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed

the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14,

1991. Section 22 (1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up

petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 to 1992, directed against the order

for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed.â€​(Emphasis Supplied)

Still further, the order of this Court was limited for one month or till such time the representation is decided. The representation was

decided on 7.9.2017, therefore, the appellant was duty bound to join at the transferred station in terms of the order deciding the representation.

The appellant was at Raisen for 8 years; therefore, transfer from Raisen cannot be permitted to be disputed as it is in administrative exigency.

Learned counsel for the appellant refers to the communication dated 22.8.2017 (Annexure P-10) wherein, the consent is sought for

relieving the appellant from Raisen to Pachmarhi. The appellant also relies upon another communication dated 28.8.2017 (Annexure P-12)

whereby file was sent to the Assistant Director, Horticulture, Raisen in respect of posting of the appellant. Copy of such communication was

endorsed to the appellant as well.

We do not find that such communications permit the appellant not to join at Singrauli after the decision on the representation on 7.9.2017

(Annexure P-9). Firstly, the communication dated 22.8.2017 is an interdepartmental communication sent to the Assistant Director,

Horticulture. The appellant relies upon the communication dated 26.8.2017 (Annexure P-11) of his joining at Pachmarhi on the basis of

interdepartmental communication dated 22.8.2017. The decision on his representation was pending in terms of the order of this Court at that

time. The decision on the representation has been taken thereafter on 7.9.2017 by the Director, Horticulture and Farm Forestry. The

representation was decided on 7.9.2017, maintaining his transfer to Singrauli. Therefore, the reliance of the appellant on communication dated

22.8.2017 (Annexure P10) is not helpful.

The communication dated 28.8.2017 is to seek further orders from the Assistant Director, Horticulture. The said communication stands

addressed when the competent authority has passed an order on the representation submitted by the appellant to Singrauli on 7.9.2017.

The appellant also relies upon the representation Annexure P-13 said to be submitted on 4.9.2017. Such representation stands decided

when the request of the appellant for transfer was considered on 7.9.2017 in terms of the direction of this Court.

The only question is whether the request of the appellant was for transfer to Pachmarhi or the request was to transfer from Raisen. If the

request of the appellant was for transfer from Raisen, he will not be entitled to the allowances payable on account of transfer, but if his

request is to Pachmarhi but has been transferred to another station, he will be eligible to get the transfer allowances as per the rules.

However, non-joining of the appellant at Singrauli after the decision on the representation will prima facie be a case of misconduct for which

the State is competent to take action against the appellant in accordance with law.

In view of the above, we do not find any merit in the present appeal. The same is, thus,dismissed.