Madhya Pradesh High Court
Vinay Kumar Tiwari vs The State Of Madhya Pradesh on 15 June, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 9756/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 15th OF JUNE, 2023
WRIT PETITION No. 9756 of 2023
BETWEEN:-
VINAY KUMAR TIWARI S/O SHRI RAJESH
KUMAR TIWARI, AGED ABOUT 33 YEARS,
OCCUPATION: POSTED AS PATWARI IN
PATWARI HALKA BAMHANGAWAN, TEHSIL
MANPUR, DISTRICT UMARIA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI VIJAY KUMAR SHUKLA- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE SECRETARY GENERAL
ADMINISTRATION DEPARTMENT,
VALALBH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE COMMISSIONER LAND RECORDS,
GWALIOR DISTRICT GWALIOR
(MADHYA PRADESH)
3. THE COLLECTOR UMARIA, DISTRICT
UMARIA (MADHYA PRADESH)
2 W.P. No. 9756/2023
4. THE TEHSILDAR, TEHSIL MANPUR,
DISTRICT UMARIA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY- DEPUTY ADVOCATE GENERAL FOR THE
RESPONDENT/STATE)
---------------------------------------------------------------------------------------------------------
This petition coming on for hearing this day, the court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
"(I) To call for the entire record pertaining to the transfer of petitioner.
(ii) That the Hon'ble Court may kindly be pleased to quash the impugned orders dated 13/11/2022, 15/3/2023 & 15/04/2023 (ANN P/1, P/2 & P/8) and petitioner be permitted to continue at work as Patwari in Patwari Halka Bamhangawan, Tehsil Manpur, District Umaria, M.P.
(iii) Any other relief which this Hon'ble Court finds fit and proper in the facts and circumstances of the case may also be awarded to the petitioner."
2. It is the case of the petitioner that the petitioner and one Smt. Dropati Prajapati sought their transfer as per their entitlement on mutual consent. The petitioner prayed for his transfer from Umaria to Shahdol whereas Dropati Prajapati sought her transfer from Shahdol to Umaria.3 W.P. No. 9756/2023
The said applications were taken into consideration and by order dated 13.11.2022, Dropati Prajapati was transferred from Shahdol to Umaria but the petitioner has not been transferred to Shahdol but he has been transferred to Anooppur District. Whereas, as per the transfer policy dated 28.09.2022, the petitioner was entitled for his transfer to Shahdol.
3. It is the case of the petitioner that he is permanent resident of Shahdol and his mother Smt. Sushila Tiwari is seriously ill and her treatment was going on at Jabalpur and Shahdol. She is suffering from Herpes Simplex Virus Encephalitis, Arti. PCR Covid Positive, Hypothyroidism. Since, the petitioner was aggrieved by his transfer to Anooppur, therefore, he filed W.P. No. 27893/2022, which was disposed of by order dated 06.12.2022, directing the respondents to clarify as to why the application for mutual transfer was not considered. A fresh representation was made by the petitioner on 08.12.2022 seeking amendment of his transfer order and prayed that he may be transferred to Shahdol in place of Anooppur. However, the said request has been rejected.
4. It is further submitted that the petitioner is the victim of hostile discrimination. It is submitted that Amit Dwivedi, Sudhanshu Shukla and Prashant Kumar Soni had applied for their mutual/transfer on mutual consent with Pappu Mahobiya, Shailendra Kumar Saket and Jitendra Prajapati. All the six persons were transferred on the basis of their mutual consent. It is submitted that Amit Dwivedi, Sudhanshu Shukla were the candidates of Un-reserved Category and Prashant Kumar Soni was candidate belonging to OBC Category, whereas; Pappu Mahobia, Shailendra Kumar Saket and Jitendra Prajapati were the candidates of reserved category and on the basis of mutual application, 4 W.P. No. 9756/2023 the candidate of un-reserved/OBC category was transferred to the post of reserved category. Whereas, the application for transfer on mutual consent filed by the petitioner has been rejected on the ground that in case if his prayer for transfer on mutual ground is accepted, then it would result in cadre imbalance.
5. Accordingly, the respondents were directed to file a detailed affidavit pointing out the reasons.
6. A short reply was filed by the respondents claiming that according to the petitioner Shri Amit Dwivedi was working at Shahdol and belongs to general category whereas he was allowed to seek mutual transfer with Shailendra Kumar Saket belonging to Schedule Caste Category. Similarly, one Sudhanshu Shukla belonging to General Category was allowed to seek mutual transfer with Pappu Mahobiya belonging to SC Category and Prashant Kumar Soni belonging to OBC Category was allowed to mutually change the places with Jitendra Prajapati. It is submitted that in fact the said claim of the petitioner was false. All the six persons were not transferred on mutual basis but they were transferred as the post in their respective categories were lying vacant.
7. Further, in compliance of the order dated 14.06.2023, the respondents have also produced the original record.
8. Shri Swapnil Ganguly, Deputy Advocate Genneral by taking this Court through the original record has successfully established that Shri Amit Dwivedi was not mutually transferred in place of Shailendra Kumar Saket and vice versa. Similarly, one Sudhanshu Shukla was not mutually transferred with Pappu Mahobia and vice versa and Prashant Kumar Soni was also not mutually transferred with Jitendra Prajapati 5 W.P. No. 9756/2023 and vice versa. It is pointed out by the counsel for the respondents that since the vacancies in the respective classes were available, therefore, they were transferred on the ground of availability of the vacancies. The second choice opted by the petitioner was Anooppur and at the time of consideration of his case since no post of unreserved category was vacant in Shahdol, therefore, his second option was accepted and he was posted at Anooppur.
9. Faced with such a situation, the counsel for the petitioner submitted that he has filed a copy of the list of Patwaries which is at page 21 of the writ petition, who were transferred out of Shahdol as well as the list of Patwaries who were transferred to Shahdol. It is clear from the said list that total five Patwaries were transferred out of Shahdol and in their place three Patwaries were transferred which clearly shows that two vacancies of Patwaries are still lying vacant at Shahdol and, therefore, the case of the petitioner may be considered.
10. Per contra, it is submitted by the counsel for the respondents that a fresh advertisement for recruitment of the Patwaries has already been issued and all the vacant posts have been advertised. Any change in the vacant post will have an adverse impact on the ongoing recruitment process. It is further submitted that since the post of Patwari is District Level Cadre, therefore, if the petitioner is transferred to Shahdol, then it would result in reduction of one vacancy which at present is available at Shahdol resulting in adverse effect on the ongoing selection process.
11. Heard learned counsel for the parties.
12. The respondents have successfully established that at the time when the petitioner was allotted Anooppur there was no vacancy of Patwari at Shahdol. It is the case of the respondents that a fresh 6 W.P. No. 9756/2023 advertisement has already been issued. Undisputedly, the post of Patwari is a District Level Post and if the petitioner is directed to be transferred to Shahdol, then it would result in reduction of one seat in District Shahdol for which the recruitment is already undergoing.
13. Under these circumstances, this Court is of the considered opinion that even after adopting a sympathetic view, no relief can be granted to the petitioner.
14. As no illegality was committed by the respondents by posting the petitioner at Anooppur, this Court is of the considered opinion that this petition sans merits and it is accordingly dismissed.
(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.06.20 17:59:22 +05'30'