Madhya Pradesh High Court
Tarachand Nayak vs The State Of Madhya Pradesh on 25 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 25th OF JULY, 2024
WRIT PETITION No. 29144 of 2022
TARACHAND NAYAK
Vs.
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri S.K. Sharma - Advocate for the petitioner.
Shri M.P.S. Raghuvanshi - Senior Advocate with Shri B.S. Dhakad
and Shri D.S. Raghuvanshi - Advocates for the respondent No.4 and
Shri Sohit Mishra - Government Advocate for the State.
ORDER
By way of present petition under Article 226 of constitution of India, the order dated 16.12.2021 has been challenged whereby the petitioner has been transferred from Gram Panchayat Duhawad, Janpad Raghogarh to Gram Panchayat Gawri Janpad Radhogarh which amounts to frequent transfer as only vide order dated 06.12.2021 the petitioner was transferred from Gram Panchayat Todi to Gram Panchayat Duhawad and within a lapse of approximately one year, he has been transferred which is the violation of the transfer policy dated 24.05.2021.
2. Learned counsel for the petitioner had assailed the impugned transfer order on two counts; first is that it is a frequent transfer and second it was issued to just accommodate respondent No.4, which is her parent Gram Panchayat.
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3. Learned counsel for the petitioner has submitted that twice in one year, the petitioner has been transferred; firstly he was transferred from Gram Panchayat Tori to Gram Panchayat Duhawad and by the impugned order, he has been transferred Gram Panhayat Duhawad to Gram Panchayat Gawri which is de-hors the transfer policy, therefore, is liable to be quashed.
4. It was further submitted that the respondent No.4 who was posted as Secretary, Gram Panchayat Duhawad on 22.07.2020 was attached to the office of Janpad Panchayat Raghogarh and when the said order of adjustment was challenged by respondent No.4 before this Court in Writ Petition No.12543 of 2020, vide order dated 02.09.2020 the order of attachment was stayed and in pursuance to the said order, she continued to serve at Gram Panchayat Duhawad and ultimately, vide order dated 03.09.2020, the order of attachment dated 22.07.2020 was cancelled.
5. It was further submitted that on 07.09.2020, vide order dated 03.09.2020, the respondent No.4 was suspended and she was again attached to Janpad Panchayat Raghogarh, the said order of attachment was revoked vide order dated 08.01.2021 and she was given the charge of Panchayat Secretary, Gram Panchayat Duhawad and when on 07.06.2021, she was transferred from Gram Panchayat Duhawad to Gram Panchayat Kherai within nine days, she got the order cancelled vide order dated 16.06.2021 and thereafter, she continued at Gram Panchayat Duhawad.
6. It was further submitted that thereafter on 31.08.2021, respondent No.4 was transferred to Gram Panchayat Gawri which was challenged by her by filing Writ Petition No.23745 of 2021 and the said petition was dismissed with a direction to the respondent to consider her 3 WP-29144-2022 representation and since the representation of the respondent No.4 was not considered, she remained at Gram Panchayat Gawri and though she had not prayed for her transfer to Gram Panchayat Duhawad, but the respondents authorities on their own transferred respondent No.4 to Duhawad where the petitioner was working. Thus it was just to accommodate respondent No.4 with malafide intention, the transfer order was passed which deserves to set aside.
7. It was also submitted that looking to the very conduct of the respondent No.4, this Court vide order 20.12.2022 had stayed the effect and operation of impugned order dated 06.12.2022 and directed to maintain status quo ante which was in existence just prior to issuance of order dated 06.12.2022 and now, since much water has flown after passing of the impugned order, therefore, the said order is liable to be set aside.
8. While referring to the order dated 04.08.2016, it was submitted by counsel for the petitioner that directions were issued by the State that the Secretaries who had remained for more than three years in their places of posting and had not been transferred, out of those, 1/3 rd of the Secretaries shall be transferred and it shall be kept in mind that no Secretary would be posted at his parent Panchayat and since the parent Panchayat of respondent No.4 is Gram Panchayat Duhawad, therefore, her transferred to the aforesaid place is prohibited. It was, thus, prayed that the present petition be allowed and the impugned order of transfer be quashed.
9. Per contra, Shri M.P.S. Raghuvanshi - Senior Advocate with Shri B.S. Dhakad and Shri D.S. Raghuvanshi - Advocates for the respondent No.4 as well as Government Advocate for the State had raised 4 WP-29144-2022 preliminary submission that the transfer policy is nothing but guidelines meant for smooth and effective administration and violation of transfer guidelines do not have statutory force and thus its violation does not give rise to a justiciable cause to the transferred employee/officer.
10. It was further submitted that challenge to transfer order can be made on very limited grounds of proven malafide, or it being violation of constitutional or statutory provision or the transfer adversely affecting the service conditions of the transferred employee but none of the grounds exists in the present petition nor has been raised, therefore, the present petition deserves to be dismissed.
11. To bolster his submissions, reliance was placed on the judgments passed by the Hon'ble Supreme Court in the matters of Bank of India Vs. Jagjit Singh Mehta reported in (1992) 1 SCC 306, Union of India Vs. S.L. Abbas reported in (1993) 4 SCC 357 and State of M.P. Vs. S.S. Kourav & Others reported in (1995) 3 SCC 270 and also on the order passed by this Court in the matter of R.S. Chaudhary Vs. State Of M.P. & Others reported in ILR [2007] M.P. 1329.
12. It was further submitted that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders such orders should not be interfered and since it is not the case of the petitioner that service rules prohibits such transfer or the authority who has issued the order was not competent to pass such order, the order impugned cannot be faulted with and the petition being devoid of merits 5 WP-29144-2022 is liable to be dismissed.
13. With regard to mala fide attributed to the accommodating respondent No.4 his place is concerned, it was submitted that no person has been named in the pleadings against whom the petitioner has attributed mala fides except for the fact of accommodating respondent No.4 to be an act of mala fide. It was thus submitted that the act of mala fide has to be attributed to someone like in the present case, the authority who has issued the transfer order but in absence of any pleadings or making him as party, the said argument has no force and in that context, it was contended that allegations regarding malafides cannot be vaguely made and it must be specified and clear.
14. To buttress his submissions, he has further placed reliance in the matter of Rajendra Roy Vs. Union of India, reported in (1993) 1 SCC 148, National Hydroelectric Power Corp. Vs. Bhagwan, reported in (2001) 8 SCC 574 and State Bank of India Vs. Anjan Sanyal, reported in (2001) 5 SCC 508.
15. On the strength of the above arguments and citations, it was prayed that the present petition being devoid of merits deserves to be dismissed.
16. Heard counsel for the parties and peruse the record.
17. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Hon'ble Supreme Court in catena of its judgments wherein it has been held that transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, unless the Court finds that either the order is mala-fide or the Service Rules 6 WP-29144-2022 prohibit such transfer or that, the authorities who issued the transfer order were not competent to pass the orders.
18. A challenge to an order of transfer should normally be achieved and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of malafides when made, must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer.
19. Further, since the transfer policy is just an executive instructions and therefore, not enforceable, the other ground that it was effected during ban period cannot be sustained. Also, the counsel for the petitioner could not portray any provision that the Director/Asst. Commissioner was not competent to pass the impugned order. Even otherwise, transfer is an incident of service and owing to the administrative reasons, an employee has to be transferred from one place to another. The transfer of the petitioner is within District and is not far away. No ground is made out for interference.
20. Another aspect which is required to be taken note of is that whether the transfer policy has statutory force i.e. whether the said order transfer policy is framed any act or rules to give its statutory power.
21. From perusal of the transfer policy appended to the petition, it 7 WP-29144-2022 could be seen that it is issued in the form of execution instructions and nowhere it has been mentioned therein that it has been framed under certain rules or the provisions of any act.
22. The Hon'ble Apex Court time and again has laid down that the policy of transfer has no statutory force and is meant to only for guiding the Executive in the decision making process for transfer of employees/officers working on transferable posts. These are mere guiding principles for smooth functioning of the administration so that the act of transfer leads to minimum heart burning for the transferred employees/officers. Thus, the violation of transfer policy does not give a justiciable right to the employee/officer to challenge in the court of law. As such this Court need not go into the merits of the challenge laid by the petitioner to the order of transfer since all the grounds are essentially founded upon the ground of violation of transfer policy.
23. The Apex Court Court time and again have held that an order of transfer passed in violation of any clause of transfer policy does not give rise to justifiable cause to the transferred employee. The relevant extract of judgments of Apex Court in the matter of Bank of India vs. Jagjit Singh Mehta (supra), Union of India vs. S.L. Abbas (supra) and State of M.P. vs. S.S. Kourav (supra) and this Court in R.S. Chaudhary Vs. State Of M.P. (supra) in this regard are reproduced below for ready reference and convenience:-
24. In the matter of Jagjit Singh Mehta (supra) wherein in para 5 it has been held as under:-
"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a 8 WP-29144-2022 course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all- India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable 9 WP-29144-2022 the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
25. In the matter of S.L. Abbas (supra) wherein in para 6 it has been held as under:-
"6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority".Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order,-- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."
26. In the matter of S.S. Kourav (supra) wherein in para 4, it has been held as under:
"4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The courts or tribunals are not appellate forums to decide 10 WP-29144-2022 on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."
27. In the matter of R.S. Chaudhary (supra) wherein in para 13, it has been held as under:
"35. Fulcrum of the matter is whether the decision in T.N.Bhardwaj (supra) govern the field and would be the binding precedent or that of the decision rendered in J.K. Bansal and others (supra) would be binding or both can simultaneously be valid. In the case of J.K. Bansal and others (supra) a three-Judge Bench of the Apex Court has referred to the decisions in Mrs. Shilpi Bose (supra) and National Hydroelectric Power Corporation Ltd. vs. Bhagwan (supra). Their Lordships have not only noticed but have quoted exhaustively the ratio laid down in the said decisions. Thus, the said decisions have been approved by the three-Judge Bench. In T.N. Bharadwaj (supra) what their Lordships have stated that the guidelines are binding on the Government. The binding nature of the guidelines, in our humble view, has to be understood in the context of Mrs. Shilpi Bose (supra), S.L. Abbas (supra), Jagjit Singh Mehta (supra) and S.S. Kaurav and others (supra). To elaborate the instructions or the guidelines do not confer any enforceable right on an employee. He has no vested right to remain at one post or the other. However, while ordering a transfer the authority must keep in mind the guidelines issued by the Government whether an order of transfer is passed 11 WP-29144-2022 in violation of the guidelines or the executive instructions. The action of the State Government should not be mala fide or malicious and should be tested on the anvil and touchstone of acceptable reasonableness. In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the ground that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity."
28. In the matter of Sunil Kumar vs. Union of India & Others passed in Misc. Petition No.5559 2022, decided 16.12.2022 on the Division Bench of this Court had also take similar view and has further observed that an order of transfer of service can be successfully challenged on very limited grounds. Proven malafide, the transfer being violative of any constitutional or statutory provision or transfer adversely affecting the service conditions of the transferred employee.
29. In the light of aforesaid discussion, this Court finds that reliance placed by the counsel for the petitioner on the transfer policy is of no consequence, as the transfer policy is just executive instructions issued by the Government and they are instructions in the nature of guidelines 12 WP-29144-2022 which don't have statutory force.
30. So far as the argument with regard to mala-fide taken in accommodating respondent No.4 at his place of posting is concerned, the said argument has also no force, as no mala-fide has been attributed to anyone nor any person has been made party against whom he could have alleged malafides and merely making misconceived allegation that accommodating respondent No.4 at Gram Panchayat Duhawad amounts to mala-fide is not sustainable.
31. So far as reliance placed on the order dated 04.08.2016 for contending that no person shall be placed at his/her parent Panchayat as a Secretary, the said argument has also no force, as there is no rebuttal of the fact that respondent No.4 was permanent resident of Village Pipalkhedi which comes under Gram Panchayat Swadkhedi Tehsil Raghogarh, it has been averred in the reply, so also this fact has been admitted in the reply filed by the State Government that respondent No.4 was resident of Gram Panchayat Swadkhedi and she was not resident of Gram Panchayat Duhawad.
32. On account of the aforesaid facts and the legal position, it could be said that transfer is an incident of service and owing to the administrative reasons, an employee can be transferred from one place to another and even otherwise, transfer of the petitioner is within District, thus, no ground is made out for interference with the impugned order.
33. The petition being sans merits is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE PAWAN pwn* Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d63 1287f1b1cdd90b4a49f265f02d9d593f, KUMAR postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD4455ED4 9EA436EA65E26164BEEED89153191C56E98CE2 1, cn=PAWAN KUMAR Date: 2024.08.13 18:42:04 +05'30'