Madhya Pradesh High Court
Dr. Poonam Sinha vs The State Of Madhya Pradesh Thr on 26 December, 2016
1 WP 8742/16
Dr. Poonam Sinha Vs. State of M.P. & another
26/12/16
Shri Sunil Kumar Jain, Advocate for the petitioner.
Shri Vijay Sunderam,Advocate for the State.
The present petition filed under Article 226 of the Constitution of
India assails the order of transfer which is dated 5/12/2016, Annexure-
P/1 transferring the petitioner, an Assistant Professor in Mathematics
from Government Science College, Gwalior to Government College,
Lahar, district Bhind on administrative exigencies.
Learned counsel for the rival parties are heard.
Indisputably, the petitioner is posted at Gwalior Science College,
since 1995.
The sole ground raised by the petitioner is that her daughter is
pursuing her academic career in Class 12 th at Gwalior at Vidhya Bhawan
Public School for which Annexure-P/11 School Fee Receipt has been
filed.
In this factual background, learned counsel for the petitioner
relying upon the decision of the Apex court in the case of Director of
School Education, Madras & others Vs. Karuppa Thevan [1994
(Supp 2) 666 submits that impugned transfer would adversely affect
the academic career of her daughter who is most crucial stage of her
academic life.
This court is conscious of its limitations while exercising writ
jurisdiction against an order of transfer. The order of transfer can be
successfully assailed on certain recognized grounds, i.e., order having
been passed by incompetent authority, the same causing adverse affect
on service conditions, same being violative of any statutory provision
and the same being vitiated by proven mala fide. Undoubtedly, none of
these recognized grounds on which transfer can be successfully assailed
while exercising powers of judicial review under Article 226 of the
Constitution of India are made out in the present petition.
However, the ground of violation of transfer policy guidelines,
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Dr. Poonam Sinha Vs. State of M.P. & another
issued by the State governing vide Annexure-P/3, dated 15/4/2015 is
alleged herein.
The Apex court in the case of Director of School Education,
Madras (supra) has categorically held that violation of transfer
guidelines does not confer any right upon the transferred employee to
be successfully assailed order of transfer. The reason is simple. Transfer
guidelines have no statutory force and are meant merely to guide and
regulate smooth functioning of the administration by laying down certain
guiding principles for the authorities exercising power of transfer of
subordinate officer. These guidelines are not justificiable in law and
therefore do not give any right to the transferred employee on the
ground of violation of the same.
However, the Apex court in the above said referred case of
Director of School Education, Madras (supra) has emphasized the
need for the competent authority to apply its mind on the fall out the
transfer has upon the academic career of the children of the transferred
employee.
The daughter of the petitioner is said to be pursuing her
academic career in Class 12th which is undoubtedly most crucial stage of
the academic life of a student and therefore it is of prime importance
that the student is given disturbance free, tension free and congenial
atmosphere to complete this stage of his/her academic career. It is not
only in the interest of the student concerned but also in the interest of
the public at large since a well prepared student shall perform better
and secure higher marks which in turn would make available intelligent
and skillful workforce for the nation to be harnessed in various fields of
life thereby serving the public interest at large.
In view of above, this court is of the considered view that the
competent authority should re-consider the decision of the transfer of
the petitioner.
Consequently, the petition stands disposed of with following
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Dr. Poonam Sinha Vs. State of M.P. & another
directions:-
(i) On petitioner's submitting fresh representation
alongwith copy of this order before the competent authority,
i.e. respondent No.1, within a period of seven days from today,
the said authority shall reconsider its earlier decision dated 5/12/2016 vide P-1 so far it relates to the petitioner in the backdrop of the fact that the petitioner's daughter is pursuing her 12th Class study and pass fresh orders of retention of petitioner at Gwalior till conclusion of the academic session of 2016-17 by passing a speaking order as expeditiously as possible.
(ii) It is made clear that while undertaking the above said exercise, the competent authority shall not be influenced or prejudiced by the order of transfer dated 5/12/2016, Annexure-P/1 and the fact of the petitioner having approached this court;
(iii) Till any decision is taken by the competent authority, the impugned order dated 5/12/2016, Annexure-P/1 passed by the respondent No.1 shall remain stayed. If the petitioner has not been relieved then she shall be allowed to continue at the present place of posting and in case the petitioner has been relieved, then she shall not be compelled to join at the transferred place.
No cost.
(Sheel Nagu) Vacation Judge (Bu)