Surendra Singh Gautam vs State of M.P.

Sujoy Paul, Judge

By filing this petition under Article 226 of the Constitution, challenge is made to the transfer order dated 28.3.2012 whereby petitioner is transferred from Mihona, Bhind to the Head Office, Bhind. Learned senior counsel submits that petitioner was earlier transferred by order dated 24.2.2012 (Annexure P-4). However, in answer to a star question in the State Assembly, it was found that complaints against the petitioner was found to be incorrect. Thus, the said transfer order dated 24.2.2012 was cancelled by order dated 12.3.2012. The learned counsel submits that because of malafide action of respondent No.4, who is very close to Dr. Govind Singh, another question was raised which can be seen from Annexure P-3 and pursuant to that the petitioner has been transferred. The learned counsel submits that petitioner cannot be subjected to continuous complaints once he is exonerated as per Annexure P-5. Learned counsel further submits that transfer order is malafide and liable to be interfered with. Shri Praveen Newaskar, learned Dy. G.A. submits that petitioner has an alternative remedy u/s 55 (2) of the M.P. Co-operative Societies Act and supported the order.

I have heard the learned counsel for the parties and perused the record.

The transfer order can be interfered with only if it violates any statutory provision (not circular or policy guideline), it is proved to be a malafide order, it changes the service conditions of an employee to his detriment or passed by an incompetent authority. In the present case, Annexure P-8 is an executive instruction that too is applicable for the State Government employees. The petitioner is not a State Government employee and, therefore, Annexure P-8 has no application in his case. Even otherwise, it is only an executive instruction.

So far alleging malafide is concerned, the petitioner has not chosen to impleade either Shri Govind Singh or the authority who has transferred him eo nomine. In absence of that, no allegations of malafide can be attributed. The Apex Court in State of Punjab and Others Vs. Chaman Lal Goyal, has taken this view which is followed by Division Bench of this Court in 2011 (3) M.P.H.T. 479 (Bhagwat Singh Verma Vs. State of M.P. and others). Thus, in absence of making the transferring authority or Shri Govind Singh as a party eo nomine, no allegations ofmalafide against them can be accepted. Impleadment of respondent No.4 eo nomine, who is not the transferring authority is of no consequence. The petitioner is merely transferred from one office to another office within District Bhind. The Apex Court in Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, held that an employee can be transferred to another post in the same cadre on account of inefficiency or mis- behaviour. It is further held that transfer can be made even on receiving complaints. It is held in para 14 as under:-

The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the primafadie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon he very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court deserve to be dismissed which we direct. The appeal are allowed with no order as to costs.

Considering the aforesaid, I am unable to hold that transfer order is punitive in nature. No stigma is attached against the petitioner in the transfer order. Such transfers are permissible in administrative exigency. No interference is warranted by this Court because none of the grounds on which interference can be made under Article 226 of the Constitution are available. Hence, petition is dismissed. No costs.