Madhya Pradesh High Court
Nagendra Verma vs The State Of Madhya Pradesh on 17 September, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
THE HIGH COURT OF MADHYA PRADESH
WP-17718-2021
(NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, dated 17.09.2021
Shri S.K. Baghel, learned counsel for the petitioner.
Shri Ajay Pratap Singh, learned Dy. Advocate General for
the respondents-State/caveator.
By the instant petition, the petitioner is challenging the order of transfer dated 31.08.2021 (Annexure-P/2) passed by the respondent No.3 whereby he has been directed to be transferred from District-Rewa to District-Harda on the post of Assistant Block Manager.
It is alleged that petitioner was initially appointed as 'Samooh Prerak' with Sankul Sahyog Dal in Bock-Batiagarh, District- Damoh in the year 2014 and vide order dated 28.9.2015 he was transferred from Block Batiagarh, District-Damoh to Block-Sirmour, District-Rewa. He was again transferred on 30.4.2020 from Block- Sirmour, District-Rewa to Block-Jawa, District-Rewa as Assistant Block Manager with M.P. Day Rural Livelihood Mission, but without completing the service tenure of 3 years, the petitioner vide order dated 31.8.2021 has again been transferred from Block-Jawa, District- Rewa to Block Harda, District-Harda.
Learned counsel for the petitioner has placed reliance on circular dated 24.2.2020 wherein there is no provision of transfer of a contractual employee because his services is not permanent in nature but his place can be change on extreme conditions and on administrative exigency but the order does not reflects any such conditions or administrative exigency. He has placed reliance on the judgment passed by this Court in the case of Aditya Dwivedi Vs. State of M.P. and others in W.P. No.1854/2021 wherein vide order dated 29.1.2021 the similar order was stayed by the co-ordinate Bench. He further placed reliance upon the order passed by the Division Bench of this Court in W.A. No.281/2021 (Seema Pasi Vs. State of M.P. and others) dated 16.3.2021 wherein similarly situated THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 2 person permitted to continue in the present place of posting. It is submitted that he has been transferred at a distance place from the present place of posting causing great hardship to the entire family. It is argued that from the transfer order it is reflected that the policy of rationalization has been taken into consideration while transferring the petitioner but practically no rationalization policy have been applied by the authorities as it is bulk transfer and as per the rationalization policy, the surplus employees should have been adjusted first. No such procedure has been adopted. In such circumstances, the prayer is made to quash the impugned order and to permit the petitioner to work at the present place of posting.
Counsel appearing for the respondents initially were on caveat and was directed to seek instructions in the matter.
On instructions, counsel appearing for the respondents has vehemently opposed the contention and has contended that the transfer is a condition of service and there is no embargo for not transferring the contractual employees like petitioner. The services of the petitioner are governed by the Human Resources Manual and as per the Clause 3.5 which deals with Staff Appointment and Contract, there is a specific provision that the contract would be renewed annually subject to satisfactory annual Performance Appraisal, all fixed tenure staff would be transferable as per the needs of SRLM. Thus the petitioner was well aware of this fact that his services are transferable and he can be transfer at any point of time, subject to administrative exigency and requirement of work. He has further drawn attention of this court to an order passed in similar circumstances by the coordinate bench whereby the bunch of the petitions have been dismissed vide order dated 27.2.2021. Main Case is W.P. No.15911/2020 wherein similar aspects was taken into consideration and the co-ordinate Bench dealing with the issue, has dismissed the writ petition, as the petitioner could not point out violation of any other statutory provisions or malafides or any of his THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 3 service conditions being effected by the impugned transfer order on the part of the respondents. It has pointed out that against the order passed in W.P. No.15911/2020, a writ appeal was fiiled being W.A. No.255/2021, and the same has been withdrawn vide order dated 12.3.2021 with a liberty to approach the respondents, meaning thereby the order dated 27.2.2021 stands affirmed. As far as filing of representation by the petitioner is concerned it has argued that the same be dealt with and will be decided expeditiously and all the grounds raised by the petitioner will be dealt with. It is further argued that transfer is a condition of service and can be interfered in exceptional circumstances as has been held in the cases of R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329 and in the case of Mridul Kumar Sharma v. State of M.P. and Others reported in ILR (2015) MP 2556 . Counsel for the petitioner could not point out any of such conditions warranting interference in transfer order. In such circumstances, no case for interference is made out. Hence, he prayed for dismissal of the writ petition.
Heard learned counsel for the parties and perused the record.
From perusal of the record, it is seen that challenge to the transfer order has been made on the three grounds that the transfer order is violative of Clause 33 of the transfer policy. Second ground is that, petitioner is contractual employee, therefore, they are exempted from being transfer to some other place. The third ground regarding the personal hardship being faced by the petitioner owing to such transfer orders as he has been transferred at a distant place and also the non application of rationalization policy.
The petitioner was initially appointed on contract basis and was posted at Block-Batiagarh,District-Damoh. The petitioner services are governed by Model Human Resource Manual wherein Clause No.3.5 deals with Staff Appointment and Contract, which reads as under:-
THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 4 "3.5- Staff Appointment and Contract,-
A contract i.e., 'a legal binding arrangement between SRLM and the concerned staff for performing their roles and duties while engaged as staff under SRLM 'would be signed once the selected candidates confirm their joining after probation period.
The recruitment and selection of staff in SRLM in general would be on a fixed tenure basis. All such appointments would follow the Recruitment and Selection Policy of SRLM.
In general, all staff engaged on fixed tenure basis would have three year tenure, unless otherwise decided by the SMD/CEO, EC or the Governing Board, as the case may be. Other terms of contract include:
Contract would be renewed annually subject to satisfactory annual Performance Appraisal All fixed tenure staff would be transferable as per the needs of SRLM.
The contract of Fixed Tenure Staff may be terminated upon unsatisfactory performance (as per Performance Appraisal) or, terminated due to disciplinary action or may end after completion of the contract period or may end voluntarily (resignation) by the staff.
For other staff, the terms and conditions of work and conduct would be defined in the contract.
In pursuance to the appointment order issued to the petitioner, the petitioner was required to execute a contract with a respondent department.
From perusal of the aforesaid conditions of appointment and contract, it is clear that the service of the petitioner is transferable as per the needs of State Rural Livelihoods Mission (SRLM). The basic object of the Mission SRLM is to facilitates the district and block units in building and supporting the community institutions and community institutions and community professionals.
THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 5 The respondents have submitted that the transfer of the petitioner has been done just to complete the Mission which is still pending at the transferred place of posting and as per the transfer order, the petitioner is required to again enter into an agreement/contract with the respondents authorities at the new transfer place. The transfer are made to with an object of completion of Mission and as per the availability and requirement of the petitioner's service at the transfer place. Thus, it is apparently clear that the services are transferable.
The aforesaid aspects was considered by the co-ordinate Bench in Writ Petition No.15911/2020 and the same has been dismissed along with the bunch of other petitions vide order dated 27.2.2021 considering all arguments advanced by the petitioner.
Clause 9.1 of the policy dated 24.2.2020 was taken into consideration along with other judgments passed by the Full Bench of this Court in the case of Ashok Tiwari vs. M.P. Text Book Corporation and another reported in 2010 (2) MPLJ 662 and also in the case of Smt. Vandana Dandotiya vs. State of M.P. and others reported in 2013 SCC OnLine MP 5090.
From perusal of the aforesaid order, Clause 15 of the contract is clear which reads as under:-
"Clause 15:- vkidh inLFkkiuk iz'kklfud vk/kkj ij fe'ku ds ftyksa esa ifjofrZr@LFkkukarfjr djus dk vf/kdkj jkT; vkthfodk Qksje@,uvkj,y,e dks gksxkA A coordinate bench further taken into consideration Clause 9.1 of the policy which reads as under;
"Clause 9.1.;- lafonk veys dh fu;qfDr LFkku fo'ks"k ,oa dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk izko/kku ugha gSA izk'kklfud O;oLFkkvksa dks ns[krs gq, fo'ks"k ifjfLFkfr;ksa esa LFkkukarj.k fd;k tk ldsxkA lafonk vuqca/k lekIr dj LFkku ifjorZu djrs gq, leku dk;Z o ifjofrZr LFkku gsrq uohu vuqca/k fd;s tkus dh Lohd`fr nh tk ldrh gSA uohu vuqca/k dh vof/k dk;Z ij mifLFkfr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd gh gksxhA After entire consideration, the petition was disposed of with the following directions:-
THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 6
7. It is the settled position in law that the services of a contract employee are governed by the terms of the contract. In the present case, the appointment order of the petitioner itself contains a clause relating to transfer and in addition thereto the policy also provides for transfer, hence, in terms thereof, the respondents have right to transfer the petitioner. The impugned order of transfer is a general order of transfer whereby several such employees have been transferred to different places on account of the administrative exigency.
8. In the reply, the respondents have demonstrated that the posts are lying vacant at transferred place. The petitioner has placed reliance upon the Full Bench judgment of this Court in the case of Ashok Tiwari(supra) but in that case also it has been held that transfer is permissible if conditions of service and the contract of service contemplates a provision for transfer from one place to another, hence, the petitioner is not entitled to the benefit of the said judgment.
Learned counsel for the petitioner has also placed reliance upon the judgment in the matter of Vandana Dandotiya(supra) but in that case the terms of appointment were different.
9. The record further reflects that the petitioner has already been relieved but he has not joined at the transferred place though there was no interim protection in the matter. Hence, the conduct of the petitioner disentitles him for any relief in exercise of the equitable jurisdiction under Article 226 of the Constitution.
10. The impugned order of transfer has not been shown to have been passed in violation of any statutory provision nor any malafide has been alleged or established. The respondents have duly considered the petitioner's representation against the impugned order of transfer and have rejected it by a reasoned order. The Supreme Court in the matter of Shilpi Bose vs. State of Bihar reported in 1991 Supp. (2) SCC 659 considering the scope of interference in a petition challenging the order of transfer has held as under:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 7 higher authorities in the department......"
11. In view of the above, I am of the opinion that no case for interference in the impugned order of transfer is made out. The petitions are accordingly dismissed.
The aforesaid order is fully governs the present petition and is fully applicable in the facts and circumstances of the present case.
The grounds raised by the petitioner regarding interim relief being granted by identical circumstances by the other benches was also considered while dismissing the writ petition.
That the order passed in W.P. No.15911/2020 was put to challenge before the Division Bench of this Court by filing a Writ Appeal No. 255/2021 and when the bench was not inclined to entertain the writ appeal the same was withdrawn with a liberty to approach the respondents authorities vide order dated 12.3.2021.
Thus, virtually the orders passed in W.P. No.15911/2020 has attained finality.
Even otherwise, transfer being a condition of service can only be challenged on limited ground such as violation of any of the terms and conditions of service which directly and indirectly effect the service of the employee, the transfer being an out come of the malafide of the authorities or the same is in violation of any statutory rules. No such grounds is available to the petitioner in the present case.
Heavy reliance is placed upon the order passed by the Full Bench of this Court in Case of Ashok Tiwari (supra) wherein it has held that the services of the contractual employee are not transferable but the aforesaid case is not applicable in the facts and circumstances of the present case as the manual governing the services of the petitioner, clearly provides that his services are transferable. Even Clause 15 of the contract entered into by the petitioner also provides that his services are transferable. The petitioner has accepted the appointment knowing well the aforesaid conditions enumerated in the THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 8 Manual as well in the contract which has been entered into by him.
The Hon'ble Supreme Court in case of Smt. Vandana Dandotiya (supra) has considered the aspect of transfer of a contractual employee and it is held that if the conditions are mentioned in the Rules or Manual regarding service being transferred and if the contract entered into between the employee and an employer contains a similar conditions, then they are bound by the service conditions of the contract and he can always be transferred as per the requirement of work.
The Hon'ble Court in case of Smt. Vandana Dandotiya considering the judgment passed by the Full Bench in the case of Ashok Tiwari Vs. M.P. Text Book Corporation has held that:-
"One of the pre-condition necessary for transfer of an employee is that he should be holder of the post, his appointment should be substantive in nature to a regular post in the establishment after following a due process contemplated for appointment to a post and even though transfer is an incident of service, but the transfer is permissible only in the condition of service and contract of service contemplates a provision for transfer from one place to another".
In the present case, the service Manual governing the services of the petitioner as well as appointment order of the petitioner and the contract entered into between by the employer and employee, clearly shows that there was a condition that the services are transferable. In such circumstances The Hon'ble Supreme Court in case of Union of India Vs. S.L. Abbas, 1993 (4) SCC 357 has considered the aspects that the guidelines of the executive instructions issued in the nature of guidelines does not confer any legal enforceable right to an employee as they do not have any statutory force. The guidelines are for the administration and it is for authority to decide who should be transfer in administrative exigency.
THE HIGH COURT OF MADHYA PRADESH WP-17718-2021 (NAGENDRA VERMA Vs THE STATE OF MADHYA PRADESH AND OTHERS) 9 In such circumstance, as the petitioner fails to demonstrate the fact that his services are not transferable and the transfer is being made for the purpose of completion of Mission which is pending at the other place, no interference is called for in the present writ petition.
Petition sans merits and is accordingly dismissed.
However, petitioner is always at liberty to prefer a representation before the respondents authorities for redressal of his grievances and if such representation is preferred within ten days from today, the authorities are expected to deal with the representation and pass a self contained speaking order expeditiously.
(VISHAL MISHRA) JUDGE irfan Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.09.21 14:15:57 +05'30'