Madhya Pradesh High Court
Ram Prakash Sharma vs The State Of Madhya Pradesh on 12 August, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.14839/2021
Ram Prakash Sharma Vs. State of M.P. and others
Gwalior, Dated:12/08/2021
Shri Devesh Sharma, Advocate for petitioner.
Shri MPS Raghuvanshi, Additional Advocate General for
respondents/State.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
"7.1 That, the impugned action and order of respondents dt. 05/08/2021 Annexure P/1 may kindly be declared as illegal and the same may kindly be quashed.
7.2 That, any other relief, which this Hon'ble Court may deem fit and proper may also be given to the petitioner along with costs."
Challenging the order dated 5/8/2021, it is submitted by the counsel for the petitioner, who also happens to be the son of the petitioner, that the petitioner was earlier attached in Gwalior in the office of Chief Engineer, PHE, Gwalior Circle, Gwalior and by order dated 7/6/2017 he was relieved and he submitted his joining at his original place of posting in the office of Office Superintendent, Gwalior Division, Gwalior. Thereafter, by order dated 28/12/2019, the petitioner was directed to work in the office of Superintending Engineer, PHE, Chambal Division, Morena for discharging the Court duties and now by the impugned order dated 5/8/2021 the petitioner has been transferred from PHE, Division Gwalior to PHE Division, Panna. It is submitted by the counsel for the petitioner that as per 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others Rule 9 (17) of Fundamental Rules, the direction to the petitioner by order dated 28/12/2019 to discharge the work in Chambal Division, Morena was in fact a transfer, therefore, the impugned transfer order suffers from frequent transfer. In addition, the petitioner is due for retirement after 11 months and he is a patient of diabetes and blood pressure. He has been transferred to Panna, which is approximately 300 kms. from the present place of posting. The petitioner had filed a representation dated 26/4/2021 seeking his transfer back to Gwalior, but that was of no avail. The wife of the petitioner is suffering from 45% disability.
Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted by Shri Raghuvanshi that the petitioner has not disclosed the date from which he is working in Gwalior Division. So far as the transfer policy is concerned, it is not enforceable by law. Further, there is no absolute bar on transfer of a person if he is going to retire within a period of one year and clause 22 of the Transfer Policy is merely directory in nature, which provides that "generally" such person should not be transferred.
Heard learned counsel for the parties.
The petitioner has not clarified the date from which he was working in Gwalior. During the course of arguments it was fairly conceded by Shri Devesh Sharma that the petitioner has spent his 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others entire service tenure in Gwalior city only and even if he was transferred out of Gwalior, then he succeeded in coming back within few months. Thus, it is clear that the petitioner has spent his entire life in Gwalior city.
It is submitted by Shri Devesh Sharma that the order dated 28/12/2019 by which the petitioner was directed to take up the duty of looking after the Court cases of PHE Department, Chambal Division, Morena, is a transfer for all purposes. However, when Shri Sharma was asked as to whether the petitioner had shifted to Morena with his bag and baggages and whether he has taken any accommodation on rent at Morena or not, then it was fairly conceded by Shri Devesh Sharma that the petitioner never shifted to Morena with his bag and baggages and everyday he use to attend his office from Gwalior and is doing up and down from Gwalior.
It is undisputed fact that Morena is merely 35 kms. from Gwalior. The petitioner is trying to take advantage of the definition of transfer as provided under the Fundamental Rules, but for all practical purposes the petitioner did not leave the city of Gwalior and was discharging his duties by staying back in Gwalior city. Why a person is interested to spend his entire service tenure in a particular city is not known.
Be that whatever it may.
4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others The factual matrix of the case is that right from the date of his appointment, the petitioner did not leave Gwalior city and whenever he was transferred or assigned any duty in another district or headquarter, either he succeeded in coming back to Gwalior within few months or he attended his office by staying back in Gwalior.
Be that whatever it may.
It is contended by the counsel for the petitioner that the petitioner is going to retire in the month of July, 2022 and as per Clause 22 of the Transfer Policy, such person should not be transferred.
Clause 22 of the Transfer Policy reads as under:-
^^22- ftu vf/kdkfj;ksa@deZpkfj;ksa dh lsok&fuo~`fRr esa ,d o"kZ ;k mlls de le; 'ks"k gks] lkekU;r% mudk LFkkukarj.k ugha fd;k tk,A^^ The use of word "generally" makes it very clear that clause 22 of the Transfer Policy is not an absolute bar and "generally" a person should not be transferred if he is due for retirement within a period of one year. Whether the act of the respondents in transferring the petitioner from Gwalior to Panna within one year of his retirement would be bad in the light of word "generally" or not, has to be considered in the surrounding circumstances after taking a holistic view of the matter. As already pointed out, the petitioner had not left Gwalior city and has spent his entire service tenure in Gwalior. From
5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others order dated 28/12/2019, it is clear that on the demand of an efficient person, who can handle the Court cases efficiently, the petitioner was directed to work in the office of Superintending Engineer, PHE, Chambal Division, Morena. Under these circumstances, it is clear that now the petitioner has not been transferred by way of any punishment, but if his services are required in Panna Division, Panna coupled with the fact that the petitioner has already completed his entire service tenure in Gwalior city, this Court is of the considered opinion that it cannot be said that the transfer of the petitioner is in violation of clause 22 of the Transfer Policy. Apart from the fact that the Transfer Policy is not enforceable by law, it is well established principle of law that a person cannot claim that he should be posted at a particular place. Transfer is an exigency of service and unless and until it is proved by an employee that his transfer is outcome of malafide of the respondents, it cannot be interfered. No malafide has been alleged by the petitioner against any officer in the entire writ petition. When it is expected from an employer that he should act as a model employer, then it is equally expected from an employee that he should act as a model employee.
It is next contended by the counsel for the petitioner that the petitioner is suffering from diabetes and blood pressure. The petitioner has annexed a copy of the prescriptions as Anneuxre P/6 to 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others show that he is diabetic. One prescription is of 10/4/2021 and another prescription is of 12/6/2021 and from these prescriptions, the reading does not suggest that the petitioner is a patient of acute diabetes. There is nothing on record to show that the petitioner is suffering from diabetes for a considerable long time. If recently the petitioner has been detected as a patient of diabetes with marginal increase in sugar level, then it cannot be said that the petitioner is seriously ill warranting interference in the transfer order. Furthermore, the personal convenience and inconvenience of an employee is within the exclusive domain of the employer and this Court cannot interfere with the transfer order on the ground of personal convenience or inconvenience, as the Court cannot act as an appellate authority.
It appears that the petitioner has approached this Court without making any representation to the respondents against the transfer order. Under these circumstances, this Court is of the considered opinion that in the light of judgment passed by the Division Bench of this Court in the case of Mridul Kumar Sharma Vs. State of M.P. reported in ILR [2015] MP, 2556, this Court cannot give liberty to the petitioner to make a representation and cannot direct the respondents to consider the representation of the petitioner before submitting his joining.
Be that whatever it may.
7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.14839/2021 Ram Prakash Sharma Vs. State of M.P. and others The petitioner has failed to point out that the transfer order of the petitioner is bad. Accordingly, no case is made out warranting interference.
The petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.08.13 17:59:38 +05'30'