Smt. Asha Tripathi vs State of M.P. and Others

This appeal is directed against an order dated 22.4.2013 passed by the writ Court in W.P. 6370 of 2013 by which a writ petition challenging the transfer order dated 28.9.2012, transferring the appellant from Rewa to Majhgawan, was dismissed. The factual position of the case is as under:-

a) That the appellant was working as the Principal in Govt. Higher Secondary School, Gurh District Rewa. She was transferred by an order dated 15.7.2012 to Govt. Higher Secondary School, Baron district Rewa.

b) Against order dated 15.7.2012 a writ petition was filed before this Court registered as W.P. 12504/12 which was finally disposed of on 9.8.2012 by an order which reads thus:-

Shri A.P. Singh, learned counsel for the petitioner.

Shri Lalit Joglekar, learned Panel Lawyer for the respondents.

With the consent of learned counsel for the parties, the matter is heard finally.

In this petition the petitioner has challenged the validity of the order dated 15.7.2012 by which the petitioner has been transferred from Gurdh to block - Hanumana. Learned counsel for the petitioner submitted that by the impugned order the petitioner has been transferred to a place where the post of Principal is not vacant. It is also urged by learned counsel for the petitioner that being aggrieved by the order of transfer the petitioner has filed a representation (Annexure P-3) to the competent authority and the competent authority may be directed to decide the representation filed by the petitioner. On the other hand, learned Panel Lawyer fairly submitted that the representation filed by the petitioner shall be dealt with in accordance with law. It is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. Until and unless the transfer is vitiated by mala fide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. [See: Union of India and Others Vs. S.L. Abbas, ] Similarly in Public Services Tribunal Bar Association Vs. State of U.P. and Another, , once again dealing with the scope of judicial review in the matter of transfer, Supreme Court reiterated that transfer is an incidence of service and normally should not be interfered with by the Court. Transfer made contrary to policy can also not be interfered with. [See: Mrs. Shilpi Bose and others Vs. State of Bihar and others, ]. If any administrative guidelines regarding transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of their grievance. The impugned order of transfer has neither been passed in violation of any statutory provisions nor the same suffers from the vice of mala fide. However, the instant petition is disposed of with the direction to the competent authority to consider and decide the representation filed by the petitioner (Annexure P-3) expeditiously preferably within a period of six weeks from the date of production of certified copy of this order. Needless to state, the competent authority shall pass a speaking order on the representation filed by the petitioner and shall communicate the same to the petitioner. Till the representation filed by the petitioner is decided by the competent authority, the petitioner shall be allowed to continue at his present place of posting i.e. Government Higher Secondary School, Gurdh.

(C) Thereafter on 13.8.2012, appellant had filed a representation in which she had made a prayer that she be transferred at Government Higher Secondary School of Excellence at Gangev where her husband was working as B.M.O. in Health Department. As no post at Gangev was vacant, so the earlier order of transfer was modified and she was transferred to Government Higher Secondary School, Majhgawan (Hanumana) district Rewa.

(d) Against the order passed by the High Court on 9.8.2012, the appellant had filed W.A. No. 1370/2012 which was finally disposed of on 9.1.2013 with a direction that till the decision on the representation she shall be permitted to continue at her place of posting i.e. Gurh.

(e) The appellant had then again filed a representation on 12.2.2013 making a prayer that she may be permitted to continue at Government Higher Secondary School, Gurh. The representation was considered and rejected. However, looking to the peculiar circumstances prevailing at that time that the examinations were going on, appellant was allowed to continue till the completion of the educational session i.e. upto 30.4.2013 and she was directed to join at Majhgawan immediately after 30.4.2013.

(f) This order dated 5.3.2012 was again assailed by the appellant before the writ Court in W.P. 6370 of 2013. The learned Single Judge considered the factual position and found that in absence of any allegations of malafide, such transfer order cannot be interfered and the decision on the representation of petitioner was a reasoned one, does not require any interference by the Court and dismissed the writ petition. This order is under challenge in this writ appeal.

We have enquired in to the factual position of the appellant, it is brought to our notice that since 2007, appellant was working at Gurh and she was transferred from there by order dated 15.7.2012 to Govt. Higher Secondary School, Baron.

The appellant has already completed her normal tenure of stay, at Gurh, she has been transferred within the district of Rewa though at Majhgawan. We find that the learned Single Judge rightly considered the matter and has found that the rejection of the representation was justified by a reasoned order and dismissed the writ petition.

From the perusal of the aforesaid fact it is apparent that initially transfer order was passed on 15.7.2012, thereafter on the representation of the appellant it was modified and she has been transferred to Hanumana. Merely appellant has been transferred to a place which is nearabout 70 k.m. from her present place of posting, cannot be a ground to interfere. The appellant has already completed her normal tenure and has served near about 6 years at Gurh and thereafter she has been transferred to a place which is also within the Rewa district, though it was tried to convince that the appellant could have been accommodated at girls school but it appears that since last six years she was working for boys school. Merely appellant has been transferred in the same capacity to boys school, cannot be a ground to interfere in the transfer order. It is a settled law that until and unless the transfer order is arbitrary, tented with malafides or suffers from any illegality, such transfer order cannot be interfered. It appears that appellant had travelled to this Court in W.P. No. 19086 of 2012 decided on 8.11.2012, W.P. No. 12504 of 2012 decided on 9.8.2012, W.P. No. 16941 of 2012 decided on 5.10.2012, W.A. No. 1201 of 2012 decided on 18.10.2012, W.P. No. 19086 of 2012 decided on 8.11.2012 and lastly W.P. No. 6370 of 2013 decided on 22.4.2013. Looking to the long chequered history of litigation, it would be appropriate if the appellant joins at the transferred place peacefully and concentrate herself in discharging her duties in place of litigating against the transfer order. In the impugned order, we do not find any reason to interfere, this appeal is found without merit and is accordingly dismissed.

At this stage, learned counsel for the appellant submitted that the appellant may be permitted to file a representation for her transfer at a girls school in the Rewa district. The appellant is always free to do so and for this, no directions are required from this Court. However, by granting liberty to file such a representation this appeal is dismissed. Appellant is allowed two weeks time from today to join at transferred place i.e. Majhgawan (Hanumana) district Rewa. For this purpose joining period is extended till 22.5.2013.

C.C. as per rules.