Madhya Pradesh High Court
Brij Kishore Plaiwal vs The State Of Madhya Pradesh on 28 July, 2017
1
WP. No. 4738/2017
(Braj Kishore Paliwal Vs. State of M.P. and others)
28.07.2017
Shri Vikas Samadhiya, Advocate for the petitioner.
Shri C.R.Roman, Government Advocate for the
respondents-State.
W ith the consent of learned counsel for the parties, the matter is heard finally.
In this petition preferred under Article 226 of the Constitution of India, petitioner has challenged the validity of the order dated 30.6.2017 by which, while working as Assistant Director, Fisheries, he has been transferred from Shivpuri to Ashoknagar.
The facts, giving rise to filing of the instant petition, in nutshell, are that on 21/12/2009, petitioner was promoted as Assistant Director, Fisheries and posted at Ashoknagar. Thereafter, on 15/6/2010 he was transferred from Ashoknagar to Sheopur and on 2/9/2013, he was transferred from Sheopur to Shvipuri. Thereafter, by the impugned order, he has been transferred from Shivpuri to Ashoknagar.
Learned counsel for the petitioner submits that the impugned transfer is in contravention to the transfer policy in vogue. It is further submitted that petitioner, being a heart patient, is a resident of Guna and taking treatment from Bhopal. Therefore, petitioner had applied for online transfer by filling the order of preference for posting as Guna, Bhopal and Ashoknagar, but leaving the first two options, he has been transferred to Ashoknagar. It is submitted that petitioner never intended to go to Ashoknagar, but only in order to submit his form, he had filled the third compulsory option as Ashoknagar. It is also contended 2 WP. No. 4738/2017 (Braj Kishore Paliwal Vs. State of M.P. and others) that by the impugned order, petitioner is being posted twice in his career to Ashoknagar which is again in contravention to clause 8.24 of the transfer policy. It is further submitted that being 59 years of age, petitioner is about to retire in one year and, as such, he ought to have been posted as per his choice. W ith the aforesaid submissions, indulgence of this Court is prayed for.
In response, learned Government Advocate submits that the transfer of the petitioner has been done on his "own expenses" as per his request. It is submitted that when petitioner had filled his third choice as "Ashoknagar" and he has been transferred to that place, his contention cannot be accepted that he did not intend to go to Ashoknagar. Moreover, it is submitted that as per clause 8.10 of the policy, those officers/employees who have one year or less left for retirement shall not ordinarily be transferred. However, petitioner, being due for retirement on 31/8/18, has more than one year to superannuate and, therefore, the said clause is not attracted to the fact situation in hand. Further, under clause 8.12 of the policy, choice transfer is provided to patients suffering from terminal diseases like cancer, those undertaking dialysis or availing regular check-up after open heart surgery, on their producing recommendation from the District Medical Board if there is no such facility at their present place of posting. However, petitioner does not full the criteria as stipulated in the said clause and, as such, cannot seek advantage thereof. It is further submitted that as per clause 8.24, an officer should not ordinarily posted twice in the same district. The said clause does not 3 WP. No. 4738/2017 (Braj Kishore Paliwal Vs. State of M.P. and others) carve out a mandatory exception for re-posting at the same district, though ordinarily the same is discouraged. W ith the aforesaid submissions, learned Government Advocate contends that prayer of the petitioner does not deserve to be countenanced.
Having heard learned counsel for the parties, I am of the view that there is substantial force in the submissions advanced by learned Government Advocate. Moreover, it is well settled in law that transfer is an incidence of service. W hich 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. The Supreme Court while dealing with the scope of judicial review in the matter of transfer, held that transfer is an incidence of service and normally should not be interfered with by the Court. If any administrative guidelines recalling transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of his grievance. [ See: Union of India and Others v. S.L. Abbas, (1993) 4 SCC 357, State Bank of India v. Anjan Sanyal and others, (2001) 5 SCC 508, Public Services Tribunal Bar Association v. State of U.P. and another, (2003) 4 SCC 104, State of U.P. and Others v. Gobardhan Lal , (2004) 1 SCC 402, R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329, Government of Andhra Pradesh v. G. Venkata 4 WP. No. 4738/2017 (Braj Kishore Paliwal Vs. State of M.P. and others) Ratnam, (2008) 9 SCC 345 and State of Haryana and Others v. Kashmir Singh and Another, (2010) 13 SCC 306] In the instant case, the petitioner has been transferred on his own request to Ashoknagar, though the same was his third choice of posting. As such, he cannot say that he has been arbitrarily transferred. The petitioner has no statutory right to remain posted at Shivpuri.
For the aforementioned reasons, the writ petition fails and is hereby dismissed.
(S.A. Dharmadhikari)
(and) Judge