Madhya Pradesh High Court
Ms. Sheetal Bhalavi vs The State Of Madhya Pradesh on 8 May, 2019
1
HIGH COURT OF MADHYA PRADESH
WRIT PETITION NO. 5461/2019
(Ms. Sheetal Bhalavi Vs. State of M.P. & ors.)
Jabalpur, Dated :08.05.2019
Shri K.C. Ghildiyal, learned counsel for the
petitioner.
Shri Paritsoh Gupta, Govt. Advocate for the
respondent/State.
Shri Swapnil Ganguly, learned counsel for respondent No.4.
With the consent of learned counsel for the parties, heard finally.
By filing this writ petition, the petitioner has called in question the transfer order dated 08.03.2019, whereby she has been transferred from Nagar Parishad Lavkush Nagar, district Chhatarpur to Nagar Parishad, Naigarhi, district Rewa and respondent No.4, holding the substantive post of Revenue Sub-Inspector has been posted as in-charge Chief Municipal Officer in her place and also the subsequent order dated 09.03.2019, whereby her earlier transfer order was modified and she has been posted as Assistant Commissioner at Municipal Corporation, Rewa.
Shorn of unnecessary details, the relevant facts are that the petitioner was appointed as Chief Municipal Officer, Class-C on probation for a period of two years vide order dated 30.12.2016 at Nagar Parishad, Lavkush 2 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) Nagar, district Chhatarpur. She joined at the place of posting on 02.03.2017. However, she was transferred on the ground of administrative exigencies on 08.03.2019 from Nagar Parishad, Lavkush Nagar to Nagar Parishad, Naigarhi, district Rewa and in her place respondent No.4 was brought on transfer from Nagar Parishad, Kari, district Tikamgarh as Incharge Chief Municipal officer. The petitioner's transfer order was subsequently modified vide order dated 09.03.2019 and she was posted as Assistant Commissioner at Municipal Corporation, Rewa instead of Chief Municipal Officer, Nagar Parishad, Naigarhi, district Rewa.
Shri Ghildiyal, learned counsel for the petitioner criticized this order by contending that the same is violative of the law laid down by the Apex Court in the case of N.K. Singh Vs. Union of India and others (1994) 6 SCC 98, as the petitioner holding the substantive post of Chief Municipal Officer is being replaced by respondent No.4, who is holding the substantive post of Revenue Sub-Inspector and not competent and eligible to hold the said post even on officiating basis. It is further contended that the petitioner had been prematurely transferred without 3 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) having completed her normal tenure on the post, so as to accommodate the respondent No.4.
Shri Paritosh Gupta, learned Govt. Advocate appearing for respondents No.1 to 3/State has supported the order. It is contended that the petitioner is holding the post of Chief Municipal Officer Class-C, which as per Section 87 of the M.P. Municipalities Act, 1961 is the Principal Executive Officer of the council. It is pointed out that promotion, recruitment and service condition of the Chief Municipal Officer are governed by the State Municipal Service (Executive) Rules, 1973 which provides, that promotion and recruitment to the post of Chief Municipal Officer Class-C is to be made as per the criteria laid down in second schedule annexed to the Rules of 1973. As per the schedule, the feeder cadre post for promotion to the post of Chief Municipal Officer Class-C also includes Revenue Sub-Inspector. It is stated that respondent No.4, earlier posted as Incharge Chief Municipal Officer at Tikamgarh was transferred in the same capacity i.e., Incharge Chief Municipal Officer, Chhatarpur. It is contended that vide the modified order dated 09.03.2019, the petitioner has been posted as Assistant Commissioner, Municipal 4 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) Corporation, Rewa, which is a big city compared to Lavkush Nagar, hence, there is no adverse effect on her service career. It is further contended that transfer of petitioner is a routine transfer for the reason of administrative exigencies and not only petitioner but 68 other persons were also transferred alongwith her by the impugned order dated 08.03.2019.
Shri Swapnil Ganguly, learned counsel for respondent No.4 also opposed the prayer and contended that earlier also respondent No.4 was posted as Incharge Chief Municipal Officer at Municipal Council, Kari. He has now been transferred to Lavkush Nagar on the same post i.e., Incharge Chief Municipal Officer. It is stated that the petitioner has been relieved on 11.03.2019 and the answering respondent had already joined. It is further contended that there were serious complaints against the petitioner regarding her performance at the present place of posting.
Parties confined their arguments to the extent mentioned hereinabove.
I have heard the learned counsel for the parties at length and perused the record.
5HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) The scope of judicial review in the matters of transfer of government servant to an equivalent post without any adverse consequences on the service prospects is very limited being confined only to the grounds of malafides, arbitrariness and violative of specific provisions regulating each transfer.
In Bhagwat Singh Verma Vs. State of M.P. and others 2011(3) MPHT 479(DB) this Court has held :
It is well settled in law that transfer is an incidence of service. Appellant admittedly holds a transferable post. Which employee should be posted where is a matter for the Appropriate Authority to decide. Until and unless the transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. It is further held that a person against whom allegations of malafides are made, has to be personally impleaded and plea of malafides has to be properly pleaded and proved. Burden of establishing malafides is very heavy on the person who alleges it. See Indian Railway Construction Co. Ltd. Vs. Ajay Kumar (2003) 4 SCC 579.)"
In Rajesh Gupta Vs. Bharat Sanchar Nigam Ltd. & ors. ILR (2009) M.P. 103, this Court has held :-
"A government servant holding a transferable post has no vested right to remain posted at one place or other. He is liable to be transferred from one place to other. Transfer 6 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) orders issued by the competent authority do not violate any legal right. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead the affected party should approach the higher authority in the department."
There is no dispute that the impugned order is not a case of single transfer. Rather 69 persons were transferred due to administrative exigencies. Out of these, 20 persons holding the substantive post of Revenue Sub-Inspector has been posted as Incharge Chief Municipal Officer. Rule 5(1)(c) and Schedule II annexed to the State Municipal Service (Executive) Rules, 1973 provides for filling up of vacancies by the State Government in all the cases of Municipal Councils by direct recruitment and by promotion, which includes Revenue Inspector and Revenue Sub-Inspector of Class- C Municipal Council and the employees of Municipal Council having at least five years experience on the respective post. Hence, it cannot be said that respondent No.4 is not entitled to or not suitable to hold the post of Incharge Chief Municipal Officer.
There is also no dispute that the impugned transfer order from Lavkush Nagar to Naigarhi has no adverse consequence on the service career and 7 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) prospects of the petitioner, nor has she suffered any set back in her career. The real grievance of the petitioner is that she has been transferred prematurely to a place 700 Kms away from her initial place of posting as also reflected from the representation (Annexure P-5) dated 09.03.2019 submitted by her.
It is significant to note that the petitioner was appointed on probation at Lavkush Nagar for a period of two years. Her probationary period came to an end in March 2019. The petitioner's transfer cannot, therefore, be held to have been made prematurely or to accommodate respondent No.4.
In N.K. Singh (supra), the apex Court has observed that :-
"23. However, acceptance of the appellant's claim would imply that no other officer in the CBI is competent and fit to conduct the sensitive investigation and his successor would stand automatically discredited without any such allegation being made or hearing given to him. That indeed is a tall order and impermissible in this proceeding where the other officers are not even participants. The tendency of anyone to consider himself indispensable is undemocratic and unhealthy. Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer 8 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
In the case of Dr. V.B. Singh Baghel Vs. State of M.P. and others 2016(3) MPLJ 152, this Court has held that :
"It is relevant to note here that the petitioner has not alleged and argued that the impugned order is malicious in nature. The Government is the best judge to decide the question of positing of an officer at a particular place. Unless such posting runs contrary to any statutory provision or infringes any fundamental or statutory right of an employee, no mandamus can be issued."
Having regard to the aforesaid legal position and the fact that impugned order was not a single transfer 9 HIGH COURT OF MADHYA PRADESH WRIT PETITION NO. 5461/2019 (Ms. Sheetal Bhalavi Vs. State of M.P. & ors.) order but an order of 69 persons and the fact that petitioner could not establish malafide or breach of any statutory rule/policy, no case is made out warranting interference by this Court in the petition under Article 226 of the Constitution of India.
In view of the aforestated, the petition sans substance and is hereby dismissed. No order as to costs.
(Smt. Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2019.06.18 15:13:33 +05'30'