Madhya Pradesh High Court
Smt. Harsha Singh vs The State Of Madhya Pradesh on 27 August, 2014
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No.21386/2012
Smt. Harsha Singh.
Vs.
State of Madhya Pradesh and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Rajendra Tiwari, learned Senior Advocate assisted
by Ms. Pratichi Dubey, counsel for the petitioner.
Shri Kumaresh Pathak, learned Dy. Govt. Advocate for
respondents No. 1 to 4.
Shri Vivek Rusia, learned counsel for the respondent
No.5.
ORDER
( .8.2014) The petitioner, a Senior Scientist Officer, Scene of Crime Mobile Unit, approached this Court by way of filing this writ petition challenging the validity of the order dated 27.11.2012, rejecting her representation against the order of transfer dated 15.7.2012.
2: The facts in brief are that the order dated 15.7.2012 was challenged in a writ petition and the said writ petition was disposed of with a direction to decide the representation of the petitioner and till such decision is taken, to allow the petitioner to remain posted at Jabalpur. Since the representation was rejected, the writ petition was filed afresh. Earlier this Court considering the writ petition dismissed the same vide order dated 20.12.2012. Upon 2 filing yet another writ petition against the order dated 15.7.2012, liberty was granted to file a review petition seeking review of the order passed in the earlier writ petition. Such a review petition was filed and the same was allowed on 18.2.2013. This writ petition was restored to its original number and, therefore, the same is to be decided finally. During pendency of the writ petition, taking note of certain events which have taken place, exhaustive amendment was made in the writ petition. The respondent No.5 was impleaded as a party. The order issued in respect of the respondent No.5 changing her place of posting after promotion is sought to be challenged by way of amendment. In this writ petition, the prayer is made only for reconsideration of the representation of the petitioner in terms of the observations made by this Court in the previous writ petition of the petitioner. For the convenience, the amended reliefs as claimed in the writ petition are reproduced hereunder :-
"A. This Hon'ble Court be pleased to quash the impugned order issued vide order dated 27.11.2012 (Annexure P-1) issued by the respondent No.2 against the petitioner.
B. This Hon'ble Court further directed to the respondents to consider her case on basis of present situation as pointed out in representation submitted vide order dated 13.12.2012 (Annexure P-13) and should have decided by proper application of mind.
C. Any other writ/writs, order/orders direction/ directions which the Hon'ble Court deem fit and proper in the facts and circumstances of the case, in favour of the petitioner be also granted.
D. Cost of the petition be also granted.
E. That by issuance of a writ in the Nature of
certiorari, the Hon'ble Court be pleased to quash the order 3 dated 29.12.2012 (Annexure P-14) in its entirety with further direction to continue the petitioner at Jabalpur as Senior Scientific Officer."
3: Contention of the petitioner is that initially she was appointed in the year 1998 in the department and when the direct recruitment on the post of Scientist Officer was conducted in the year 2005, she took part in the selection, was selected and appointed as such. Later on, she was promoted on the post of senior Scientist Officer in the year 2008 and was posted in Forensic Science Laboratory, Sagar. She was transferred in the month of September 2008 to Datiya, where she remained working upto the year 2010, when vide order dated 24.11.2010 she was posted in the Mobile Unit at Jabalpur and was made to lookafter the work of Katni, Narsinghpur and Mandla district as well. By the order of the even date, though the respondent No.5 was transferred from Jabalpur to Sagar, she did not carry out the order and obtained an interim stay from this Court. In the year 2011 again an order of transfer was issued in respect of respondent No.5, which too was not complied with and an interim stay was obtained from this Court. Though the petitioner had not completed the requisite tenure of posting at Jabalpur, yet by the order dated 15.7.2012, the petitioner was transferred to Narsinghpur. As the petitioner was facing great difficulties in executing the order of transfer because of certain self medical problems, she made a representation in detail on 27.7.2012 and since the representation was not being considered, approached this Court by way of filing W.P.No.12296/ 2012(S) challenging the validity of the order of transfer. The said matter came up for hearing on 9.8.2012 and discussing the law in respect of transfer as also the scope of judicial review of the said order, the Court was pleased 4 to dispose of writ petition of the petitioner with a direction to the respondents to decide the representation of the petitioner and granting a protection to the petitioner to remain on post till the representation of the petitioner is decided. It is the contention of the petitioner that this order was brought to the notice of the respondents by making supplementary representation.
4: The respondent No.5 was not the Senior Scientist Officer at that time. Earlier order of transfers which were sought to be challenged by the respondent No.5 before this Court were not interfered by the Court. Only a direction was given to decide the representation of the respondent No.5 and till that time the representation is decided to allow the respondent No.5 to continue on the post at Scene of Crime Unit at Jabalpur. The writ petition was disposed of vide order dated 6.6.2011. Instead of deciding the representation of the respondent No.5, an order of promotion was issued in her respect on 6.10.2012 and on promotion as Senior Scientist Officer, the respondent No.5 was posted in District Scene of Crime Unit Khandwa. This fact that the officer who was posted at Jabalpur, was now promoted and transferred to Khandwa was immediately brought to the notice of authorities by making a representation by the petitioner. However, the representation of the petitioner was not considered and the same was rejected by the impugned order dated 27.11.2012. Soon thereafter, the representation made by the respondent No.5 for change of her posting after promotion was considered and allowed and the amendment in the posting order was issued in respect of the respondent No.5.
5: As has been described herein above, earlier, this writ 5 petition was dismissed, but the same has been revived by passing the order in review petition. This has been contended by the petitioner specifically that the respondent No.5 is obliged and accommodated at Jabalpur at the cost of transfer of the petitioner. Much emphasis is put to the fact that the interim order passed by this Court in the present writ petition was not complied with by the respondents and, as such, the order of rejection of representation is bad in law and is liable to be quashed. It is the case of the petitioner that malafidely power of transfer has been exercised arbitrarily and just to favour the respondent No.5, the petitioner has been transferred in most cryptic manner. This being a malafide act of the respondents, the order impugned is bad in law.
6: By filing a return, the respondent-State has denied such allegation of malafides. It is contended by the State that the representation was made by the respondent No.5 pointing out that her daughter was a patient of celebral palsy and that in terms of the circular of the State Government, she was to be posted in the place where such specialised treatment is available. Such a representation of the respondent No. 5 when was placed before the department was considered and allowed. The earlier transfer orders of the respondent No.5 were not to be implemented in view of the fact that subsequently the respondent NO.5 was promoted on the next higher post and the order was issued in respect of her new posting. In view of these facts, immediately the application was made for recall of the order dated 1.5.2013 passed in the writ petition and it was pointed out that the representation of the petitioner has rightly been rejected as because of shortage of the officers in the department posting of petitioner was required to be done. This being so, there 6 cannot be any malafides of the respondents and, as such, allegations made against the respondents are baseless.
7: The respondent No.5 has filed a separate return bringing to the notice the fact that earlier order of transfers were cancelled by the department itself as the same were challenged on the valid grounds before this Court. It is the contention of the respondent No.5 that for a long period of 9 years, she has remained posted at Narsinghpur and on her own request she was transferred to Jabalpur. Since within a short tenure she was being transferred to the other place where the specialised treatment for the daughter of the respondent No.5 was not available, the representation was made and, the said representation is properly considered and allowed and now because the posting of petitioner has been made at Narsinghpur, on the available vacancy, the respondent No.5 is accommodated. It is specifically contended that the respondent No.5 was not the senior Scientist Officer on the date of order of transfer issued in respect of the petitioner. She was subsequently promoted on this post. Since after promotion the vacancy on account of already transfer of the petitioner was available, the representation made by the respondent No.5 was rightly considered and allowed. There cannot be any malafides of the respondents authorities to accommodate the respondent No.5 at the cost of petitioner at Jabalpur. That being so, it is contended that the entire claim made in the writ petition is misconceived. The same deserves to be dismissed.
8: Heard learned counsel for the parties at length and perused the record.
9: From the reliefs claimed in the writ petition, it is clear that the main emphasis of the petitioner is to the order of 7 rejection of representation and not on the order of transfer dated 15.7.2012. If the order of rejection of representation is looked into, the findings recorded by the authorities are that there are 130 posts of Scientist Officers lying vacant and 20 posts of senior Scientist Officers are vacant. Since such large number of vacancies are there, it is difficult to post persons at one place. For the purposes of filling the post lying vacant at Narsinghpur unit, the transfer of the petitioner has been done. Because of the large number of vacancies, two officers are not to be posted at Jabalpur. Nothing more is said in this order. If the order passed by this Court in the writ petition filed by the petitioner is examined, the view expressed by this Court was that unless the transfer is vitiated by malafides or is made in violation of any statutory provision, the same was not to be interfered with by the Court. The categorical finding recorded by this Court was that the impugned order of transfer has neither been passed in violation of any statutory provision nor the same suffers from the voice of malafides. The only liberty which was granted to the petitioner was to seek redressal on the representation from the respondents authorities. It was not directed by this Court that what aspects were to be looked into while considering the representation of the petitioner by the respondents. Therefore, the finding with respect to the necessity of transfer can not be said to be violative of any provision of law nor suffers from the voice of malafides, as after rejection of representation of petitioner on consideration of representation of respondent No.5, subsequent order is issued making change in her posting.
10: The respondent No.5 though was promoted and posted at Khandwa on the post of Senior Scientist Officer, but the said order was not carried out by giving joining at 8 Khandwa. The earlier transfer orders of respondent No.5 were not to be given effect to without deciding her representation against such orders as the protection was granted in this respect by this Court. She was rightly treated to be posted at Jabalpur on the pre-promotional post. This was the specific condition which was available on 15.7.2012 when the order of transfer in respect of petitioner alone was issued. That being so, if though holding a slightly higher post, the petitioner was transferred to Narsinghpur without shifting the respondent No.5, it was the choice of the department to make posting. Apart from that till that time, there was no decision on the representation of the respondent No.5 made against her previous posting and in terms of the interim protection granted by this Court, the respondent No.5 was to remain posted at Jabalpur. In that circumstances, if the transfer of petitioner was made at Narsinghpur, again it cannot be said that the order was arbitrarily issued. In context of this, if the rejection of the representation of the petitioner is made on the ground that two officers are not to be allowed on one place because of the reason that there are lot of vacancies, it again cannot be said to be an arbitrary order. This was the absolute authority of the respondents to take decision, who is to be posted where and when. In such administrative requirement or exigencies, the Courts are not to interfere.
11 : Much emphasis is placed by learned Senior counsel for the petitioner that the respondent No.5 is accommodated at the cost of petitioner. Such a submission is not acceptable in view of the fact that the respondent No.5 could not have been transferred because of the interim protection of this Court when the order of transfer was issued in respect of petitioner on 15.7.2012. Secondly, 9 when the vacancy became available after transfer of the petitioner and since thereafter when the respondent No.5 was promoted and posted on the post of senior Scientist Officer at Khandwa, since that order was not given effect to by the respondent No.5, she was to be treated as posted at Jabalpur. The respondent No.5 even if was not accommodated, could have foregone promotion and to remain continued on the post held by her at Jabalpur. In that circumstances also, the vacancy was not to be utilised for accommodating the petitioner at Jabalpur looking to the reason mentioned in the rejection order. If the representation of the respondent No.5 was sympathetically considered by the State Government in terms of the circular issued by the State Government and the respondent No.5 was accommodated at Jabalpur, it cannot be said to be an arbitrary act as the transfer of petitioner was not made with an object to make room for accommodating the respondent No.5 at Jabalpur. That apart, as has been pointed out by the respondent No.5, the Superintendent of Police Narsinghpur was asking for immediate relieving of the petitioner to join at Narsinghpur since nobody was available at Narsinghpur to discharge the duties. This itself is enough to demonstrate that there was need of posting of persons like petitioner and for that reason the order of transfer was issued.
12 : Learned senior counsel for the petitioner has placed reliance in the case of E.P. Royappa V. State of Tamil Nadu and another (AIR 1974 SC 555) and Rajendra Roy V. Union of India (AIR 1993 SC 1236). The Apex Court while considering various aspects has held that in a case where the order of transfer is challenged on the grounds of malafide, it is not always possible to bring strict evidence of such malafide on record. But such 10 circumstantial evidence should be made available to make out a case of malafide exercise of power and or an action to wreck vengeance. From the analysis of facts and circumstances available on record by no stretch of imagination, it could be said that order of transfer of petitioner in this case was on account of any malafide action of respondents. Since out of two officers posted at Jabalpur on the date of consideration of transfer one could not be transferred away because of protection of this Court, the petitioner was rightly transferred. Similarly in the similar circumstances as narrated herein above, the representation of petitioner was rightly rejected.
13 : The challenge to the order of change of place of posting of respondent No.5 after promotion is also not sustainable in the circumstances described herein above as there is no specific proof of any such malafide or arbitrary action of State. The respondent No.5 is not favoured by grant of promotion from the date of promotion, but the same is granted to her only from the date of joining on promotional post after the change in the posting order.
14 : As a result, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K. TRIVEDI) Judge /8/2014 A.Praj.
11 12HIGH COURT OF MADHYA PRADESH : JABALPUR.
WRIT PETITION NO.21386/2012Smt. Harsha Singh Vs State of M.P. and others ORDER Post it for /08/2014 ( K . K . Tr i v e d i ) Judge