Madhya Pradesh High Court
Manish Kumar Mishra vs The State Of Madhya Pradesh on 1 November, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 1st OF NOVEMBER, 2022
WRIT PETITION No.24319 OF 2022
Between:-
MANISH KUMAR MISHRA S/O
SHRI BRIJ BIHARI MISHRA AGED
- 49 YEARS, OCCUPATION-
MIDDLE SCHOOL TEACHER, R/O-
243 SARVODYA NAGAR, BHIND
(MADHYA PRADESH).
........PETITIONER
(BY SHRI NIRMAL SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL
SECRETARY, MINISTRY OF
SCHOOL EDUCATION, VALLABH
BHAWAN BHOPAL, MADHYA
PRADESH.
2. COMMISSIONER, PUBLIC
INSTRUCTION DEPARTMENT,
BHOPAL (MADHYA PRADESH).
3. DISTRICT EDUCATION OFFICER,
DISTRICT BHIND (MADHYA
2
PRADESH).
4. PRINCIPAL/HEAD MASTER,
GOVERNMENT MIDDLE SCHOOL,
RANIVIRGAWAN, ATER, DISTRICT
BHIND (MADHYA PRADESH).
........RESPONDENTS
(BY SHRI G.K. AGRAWAL - GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
"i. The impugned order Annexure P/1 dated 21.10.2022 to the extent it relates to the petitioner may kindly be quashed.
Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted."
2. It is submitted by the counsel for the petitioner that the petitioner is working as Madhyamik Shikshak and at present he is posted in GMS, Ranivirgawan, Bhind and by the impugned order dated 21/10/2022 he has been transferred to GMS Bhagoriya, District Shivpuri. It is submitted that the petitioner is an office-bearer holding the post of Treasurer in Government recognized union, i.e. M.P. Rajya Karmchari Sangh and thus, he is exempted from transfer as per Clause 4.4 of the transfer policy. The transfer of the petitioner is a midterm transfer. The petitioner was transferred to GMS, Ranivirgawan by order dated 9/8/2019 from MS 3 Singpura and now he has been transferred to Shivpuri. The brother of the petitioner is suffering from disability (certificate is Annexure P/6) and there is no one to look after him. It is further submitted that as per Clause 2.12 of the transfer policy, only the surplus teacher is to be shifted to fill vacancy, whereas there is no surplus staff in the school from where the petitioner has been transferred. The petitioner has made a representation against his transfer order, but it has gone in vain.
3. Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that transfer is an exigency of service and no one can claim that he should be posted at a particular place. The petitioner has already completed his normal tenure of three years in GMS Ranivirgawan, District Bhind. Although the petitioner has claimed himself to be an elected Treasurer of M.P. Rajya Karmchari Sangh, Block Ater, District Bhind, but the petitioner has neither filed the voter list nor the election programme nor the election result.
4. Heard learned counsel for the parties.
5. So far as the contention of the petitioner that he is an elected Treasurer of M.P. Rajya Karmchari Sangh, Block Ater, District Bhind is concerned, the petitioner has relied upon the communication dated 29/4/2022 sent to the Collector, Bhind. The petitioner has not filed the copy of the voter list, election programme, names of the candidates who had contested the election and total number of votes received by him. Thus, prima facie the counsel for the petitioner has failed to prove that the petitioner was elected in an election conducted by the Union. Furthermore, Clause 4.4 of the transfer policy provides that "generally" the President / Secretary / Treasurer shall be exempted from transfer for a 4 period of two terms. The use of word "generally" clearly indicates that there is no absolute bar on the transfer of an office-bearer. Since the petitioner has failed to prove that he was duly elected by the electoral coupled with the fact that the petitioner has already completed his minimum tenure of three years, it cannot be said that the respondents could not have transfer the petitioner at all.
6. So far as the handicapness of the brother of the petitioner is concerned, the petitioner has relied upon a standard format of certificate issued by District Medical Board (Handicapped), District Bhind. In the certificate itself it is specifically mentioned that the said certificate has not been issued for judicial purposes. Thus, the certificate cannot be used by the petitioner for judicial purposes. Even otherwise, it is not the case of the petitioner that the brother of the petitioner is living alongwith the petitioner or is completely dependent upon him with nobody else to look after him. Transfer is an exigency of service and no one can claim that he should be posted at a particular place.
7. So far as the midterm transfer of the petitioner is concerned, it is not the case of the petitioner that the education of any of his child would get adversely affected because of his transfer, therefore, the transfer order of the petitioner cannot be interfered on the said ground also.
8. So far as the representation made by the petitioner is concerned, the Division Bench of this Court in the case of Mridul Kumar Sharma Vs. State of MP and others reported in ILR (2015) MP 2556 has held that mere filing of representation would not give rise to any substantive right and the representation cannot be directed to be decided unless and until the employee joins at his transferred place. Since the petitioner has 5 not joined at his transferred place, therefore, no case is made out for directing the respondents to decide his representation.
9. So far as the old age of the parents of the petitioner is concerned, the petitioner has filed the copies of the Adhar Cards of his parents, which clearly show that they are the resident of Bhind, whereas the petitioner was posted in GMS Ranivirgawan, Tehsil Ater, District Bhind. Thus, it is clear that the petitioner is not residing with his parents.
10. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2022.11.03 19:05:06 +05'30'