Madhya Pradesh High Court
Ashwini Kumar Sood vs The State Of Madhya Pradesh on 7 October, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
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HIGH COURT OF MADHYA PRADESH
W.P.No.14606/2020
(Ashwini Kumar Sood Vs. The State of M.P. and Others)
Gwalior, Dated : 07.10.2020
Shri D.K.Katare, learned counsel for the petitioner.
Shri Udit Saxena, learned Panel Lawyer for the State.
In the wake of unprecedented and uncertain situation due to
outbreak of the Novel Corona virus (COVID-19) and considering the
advisories issued by the Government of India, this petition has been
heard and decided through video conferencing to maintain social
distancing. The parties are being represented by the respective counsel
through video conferencing, following the norms of social distancing/
physical distancing in letter and spirit.
The present petition is being filed challenging the transfer order
dated 25.09.2020 whereby the petitioner has been transferred from
Gwalior to Jabalpur. It is submitted that the petitioner was appointed
on the post of District Commandant, Home Guard after facing
selection process of M.P.P.S.C. and he joined his services on
09.11.2001. In the year of 2014, he was posted as District
Commandant, Home Guard, Gwalior on 01.09.2014 and in 2017, he
was transferred to Rajgarh. It is argued that the wife of the petitioner is
also in govt. job and is working as Deputy Registrar, Cooperative
Societies at Morena and considering the policy of the Govt. that the
husband and wife if they are in govt. job normally should be placed at
one place or at the nearby place. Therefore, on the request made by the
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HIGH COURT OF MADHYA PRADESH
W.P.No.14606/2020
(Ashwini Kumar Sood Vs. The State of M.P. and Others)
petitioner, he was transferred to Gwalior from Rajgarh vide order dated
11.03.2020 and in compliance of the same, he joined on 16.03.2020. It
is argued that immediately thereafter the order impugned has been
passed within a short span of six months whereby the petitioner has
been directed to be transferred to Jabalpur. It is submitted that the
daughter of the petitioner is studying in Class XII and is prosecuting
the study and preparing for IPMAT Management and the son is
studying in Class V in Gwalior. The petitioner's wife is working at
Morena and there is nobody except the petitioner to take care of the
children. Therefore, transferring the petitioner given the mid-session of
the students is also not permissible. He has relied upon the judgment
passed by the Hon'ble Supreme Court in the case B.Varadha Rao Vs.
State of Karnataka, AIR 1986 SC 1955 with respect to mid-term
transfer wherein the Hon'ble Supreme Court has held that normally the
mid-term transfer should not be made. It is submitted that on the
request made by the petitioner, he was transferred in the month of
March. He has further relied upon the judgment in the case of Rajesh
Kumar Vs. State of M.P. passed by the Coordinate Bench, Bench at
Indore in W.P.No.12994/2019 decided on 17.10.2019 where
considering the judgment passed by the Hon'ble Supreme Court in the
case of Kendriya Vidhyalaya Sangathan Vs. Damodar Prasad
Pandey reported in 2004 (12) SCC 299 and the other judgment passed
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HIGH COURT OF MADHYA PRADESH
W.P.No.14606/2020
(Ashwini Kumar Sood Vs. The State of M.P. and Others)
by the Supreme Court in the case of State of M.P. Vs. S.K.Dubey,
reported in 2012 (4) SCC 578 wherein it has been considered and held
that executive powers of a State extends to matters with respect to
which the legislature of the State has power to make laws. Article 162
of the Constitution gives State Executive coextensive powers with that
of the State Legislature, therefore, the transfer policy framed by the
State Govt. cannot simply be washed away treating it to be not binding
on the State Govt. It is submitted that in pursuance to the specific
clause in the Transfer Policy whereby the husband and wife both being
govt. servants are directed to be placed at nearby places. The
petitioner's case was considered and he was posted. Thus, the
impugned order is violative of clause of the Transfer Policy as well as
the mid-term transfer effecting the studies of children, therefore, he has
prayed for quashment of the impugned order. It is submitted that the
petitioner is still working, therefore, he may be permitted to work. He
has already filed a detailed representation to the respondents-
authorities but of no consequence.
Per contra, counsel for the State has opposed the arguments and has submitted that the petitioner's transfer is on condition of service and the petitioner who is a government employee is duty bound to comply with the transfer orders. However, only justification which is given to transferring the petitioner within six months at administrative 4 HIGH COURT OF MADHYA PRADESH W.P.No.14606/2020 (Ashwini Kumar Sood Vs. The State of M.P. and Others) exigency. The respondents fairly submits that the representation submitted by the petitioner will be considered and dealt with expeditiously.
Taking into consideration the overall facts and circumstances of the case and also the fact that the petitioner was recently transferred in the month of March on its own request and was posted at Gwalior. The children of the petitioner are pursuing the study in Class XII and Class V respectively and the transfer is during mid-session and admittedly the wife of the petitioner is a government servant and is working in Morena. The Hon'ble Supreme Court in the case of State of M.P. Vs. S. K. Dubey reported in 2012 (4) SCC 578 has held as under :-
30. The moot question that falls for determination in this appeal is: whether in the absence of any express rule in the State Rules, was it open to the State Government of Madhya Pradesh to have provided by way of an executive Order dated 5-4-
2002 that the service rendered by the respondent as President of the State Commission would be counted as pensionable service? The incidental question is:
whether such order is inconsistent with Section 16 (2) or the State Rules?
31. Subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the legislature of the State has power to make laws. This is what is provided in Article 162 of the Constitution. In other words, the 5 HIGH COURT OF MADHYA PRADESH W.P.No.14606/2020 (Ashwini Kumar Sood Vs. The State of M.P. and Others) executive power of the State executive is coextensive with that of the State Legislature.
32. In Sant Ram Sharma [AIR 1967 SC 1910] this Court negated the arguments advanced on behalf of the appellant therein that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the rules already framed. The Court stated: (AIR p. 1914, para 7).
"7. ... It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
The above legal position has been followed and reiterated by this Court time and again.
33. The Constitution Bench of this Court in Lalit Mohan Deb [(1973) 3 SCC 862 : 1973 SCC (L&S) 272] said: (SCC p. 867, para 9) "9. It is true that there are no statutory rules regulating the selection of assistants to the selection grade. But the absence of such rules is no bar to the administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject."
In Union of India v. Central Electrical & 6 HIGH COURT OF MADHYA PRADESH W.P.No.14606/2020 (Ashwini Kumar Sood Vs. The State of M.P. and Others) Mechanical Engg. Service, (CE&MES) Group 'A' (Direct Recruits) Assn., CPWD [(2008) 1 SCC 354 :
(2008) 1 SCC (L&S) 173], this Court held that the executive instructions could fill in gaps not covered by the rules but such instructions cannot be in derogation of the statutory rules.
The Hon'ble Coordinate Bench of Indore in the case of Rajesh Kumar (Supra) has considered the similar analogy and has passed the order dated 17.10.2019, thus, considering the aforesaid orders and dictum of the Hon'ble Supreme Court, this Court deems it appropriate to direct the petitioner to submit a detailed representation to the respondents-authorities within a period of seven working days from today alongwith all the relevant documents and the copies of the orders passed by the Hon'ble Supreme Court as well as the this Court and in turn, the respondents-authorities are directed to dwell upon the representation and decide the same and pass a self contained speaking order considering the grievances of the petitioner and communicate the outcome to the petitioner within a period of one month from the date of receipt of the certified copy of this order. Till the decision of the representation, the petitioner is permitted to work at present place of posting as District Commandant, Home Guard, Gwalior M.P. The petition is disposed of with the aforesaid observations. It is made clear that this Court has not made any comments upon 7 HIGH COURT OF MADHYA PRADESH W.P.No.14606/2020 (Ashwini Kumar Sood Vs. The State of M.P. and Others) merits of the case.
E- copy of this order be provided to the petitioner and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.
(Vishal Mishra)
AK/- Judge
ANAND KUMAR
2020.10.08
11:22:00 +05'30'