Madhya Pradesh High Court
Nagendra Kumar Dubey(Dwivedi) vs The State Of Madhya Pradesh on 22 August, 2023
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22 nd OF AUGUST, 2023
WRIT PETITION No. 20804 of 2023
BETWEEN:-
NAGENDRA KUMAR DUBEY (DWIVEDI) S/O SHRI
SITARAM DUBEY, AGED ABOUT 48 YEARS,
OCCUPATION: WORKING AS PRIMARY TEACHER IN
HSS CM RISE BAGHA, BLOCK SOHAWAL, DISTRICT
SATNA (M.P.)
.....PETITIONER
(SHRI RAJESH PRASAD DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY DEPARTMENT OF
SCHOOL EDUCATION VALLABH BHAWAN
BHOPAL (M.P.)
2. COMMISSIONER PUBLIC INSTRUCTION
DIRECTORATE BHOPAL (M.P.)
3. DISTRICT EDUCATION OFFICER SCHOOL
EDUCATION DEPARTMENT DISTRICT SATNA
(M.P.)
4. PRINCIPAL GOVERNMENT HSS CM RISE SCHOOL
BAGHA BLOCK SOHAWAL DISTRICT SATNA (M.P.)
.....RESPONDENTS
(SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
By this writ petition, the petitioner has challenged the transfer order dated 10.08.2023 passed by respondent No.3-District Education Officer, whereby the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/25/2023 5:48:30 PM 2 petitioner working as Primary Teacher has been transferred from CM Rise GHSS Bagha (Class 6 to 12) to CM Rise GPS Harijan Basti Majhgawan (Class 1 to 5).
2. It is submitted by counsel for the petitioner that the petitioner participated in the selection process and was appointed in co-academic computer teacher and as per clause 5 of CM Rise Policy, he cannot be transferred within five years. This petitioner further claims that he is an elected office bearer of M.P. Shikshak Congress which is a recognized employees union and as such, he cannot be transferred.
3. Per contra, counsel appearing for the respondents has vehemently opposed the contentions and submitted that transfer is an exigency of service and no one can claim that he/she should be posted at a particular place only. The impugned order is passed on a concurrence of competent authority.
4. Clause 5 of the CM Rise Policy reads as under:-
^^p;fur veys dk dk;Zdky U;wure 5 o"kZ jgsxkA 5 o"kZ mijkar lacaf/kr ds dk;Z ds ewY;kadu ds vk/kkj ij vof/k esa o`f) dh tk ldsxhA vifjgk;Z ifjfLFkfr;ksa] dk;Z esa v{kerk dh fLFkfr esa gh U;wure vof/k ds iwoZ Hkh LFkkukarj.k fd;k tk ldsxkA**
5. From the plain reading of this clause, there is a provision of transferring the employee within minimum period of five years in case of inevitable circumstances or incompetency in work.
6. So far as the submission that petitioner has been elected office bearer, it is seen from the impugned order itself that he has not been transferred out of Satna. The point is no more res integra. In W.P. No. 12231/2017 (Ramesh Kumar Soni vs State of M.P.) decided on 17.08.2017, a coordinate Bench of this Court has held as under:
"A plain reading of transfer policy shows that normally immunity is Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/25/2023 5:48:30 PM 3 granted from transfer to the office bearer so that they can pursue their association activities while remain posted at a place for which they are elected as office bearer. The petitioner is admittedly an office bearer of district level and he is transferred within the district. Therefore, by no stretch of imagination, his transfer will adversely affect his association activity. It will not deprive the petitioner to act as Treasurer. Thus, the first ground is rejected being devoid of substance. Even otherwise clause 8.19 of the Policy dated 19-05-2017 shows that it is directory in nature. The immunity from transfer is given to the office bearer "ordinarily". No enforceable right is created by Clause 8.19 to remain posted at the same place. The administrative exigency and job requirements of the department must be given preference over association activities. The government employees must realize that he is appointed to perform the duties of his post and not to act as office bearer of an association. For this reason also, the said clause of policy is of no assistance to the petitioner."
7. In view whereof, the petitioner has no legal enforceable right to continue to remain posted at same place on the strength of the fact that he is an office bearer.
8. At this juncture, it is submitted by counsel for petitioner that since the petitioner has made a representation, therefore, the respondents may be directed to decide the representation and till then the effect and operation of the impugned order may be stayed.
9. A Division Bench of the Court in the case of Mridul Kumar Sharma Vs. State of M.P. reported in ILR 2015 MP 2556 has held that mere filing of a representation does not give rise to a vested right and it is the prerogative of the employer to stay or not to stay the transfer order during the pendency of the representation. In case if the transfer order is not stayed by the employer then it has to be executed by the employee. Accordingly, it was held that in absence of any vested right, the High Court should not pass an interim order thereby staying the execution of transfer.
10. Since the petitioner has not joined at the transferred place, therefore, at Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/25/2023 5:48:30 PM 4 present, no direction can be issued to the respondents to decide the representation. However, it is made clear that the petitioner after submitting his joining may file an application for urgent hearing of his representation and if that is filed then the respondents shall decide the same strictly in accordance with law without getting influenced or prejudiced by this order.
11. With aforesaid observation, the petition is disposed off finally.
(VISHAL MISHRA) JUDGE vinod Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/25/2023 5:48:30 PM