Madhya Pradesh High Court
Prabhat Singh Thakur vs The State Of Madhya Pradesh on 23 October, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-21915-2021
The High Court Of Madhya Pradesh
WP-21915-2021
(PRABHAT SINGH THAKUR Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 23-10-2021
Shri Brijesh Choubey, counsel for the petitioner.
Shri Kaustubh Singh, panel lawyer for the respondents/State.
The present petition is being filed challenging the legality, validity and propriety of the order dated 27.08.2021, passed by the respondent no.4 by which the petitioner has been transferred from Gram Panchayat Sarsba, Janpad Panchayat Kundam, District Jabalpur to Gram Panchayat Bamnodi, Janpad Panchayat Panagar, District Jabalpur on administrative exigencies.
I t is alleged that the petitioner is working as an office bearer of the recognized Union and is elected as Block President of M.P. Sachiv Sangathan; therefore, the petitioner is having an exemption from being transferred for a period of two extensions. It is submitted that the petitioner is an elected office bearer and not a nominated office bearer. The other ground, which has been taken for challenging the transfer order is that the petitioner has been transferred on a complaint of respondent no.6 alleging that the petitioner has not attended the meeting and has opposed the respondent no.6 during election and also demanded money from the villagers to do their work. The transfer of the petitioner is contrary to the law laid down by this Court in the case of K.S. Verma, Vs. State of M.P. and others reported in (2011) I.L.R. (MP) 1720. It is argued that the petitioner is still working and has not been relieved. A detailed representation against the transfer order is being made to the respondents authorities, the same is pending consideration and has not been decided till date. It is submitted that the petitioner has preferred a writ petition being aggrieved by the transfer order dated 27.08.2021, registered as Writ Petition No.17442/2021, the same was disposed of vide order dated 13.09.2021 directing the authorities to consider and decide the pending representation within a period of 30 days. In pursuance to the same, Signature Not Verified SAN the authorities have considered and decided the representation of the Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.29 11:26:24 IST 2 WP-21915-2021 petitioner vide order dated 30.09.2021 and the representation has been rejected. It is argued that the ground with respect to violation of Clause-33 of the transfer policy, which was specifically raised by the petitioner was not considered while deciding the representation. In such circumstances, the order dated 30.09.2021 is per se illegal. As the petitioner has not been relieved till date; therefore, direction to the respondents not to take any coercive action against the petitioner be issued.
Per contra, counsel appearing for the State has opposed the prayer and submitted that the transfer is a condition of service and a Government servant is duty bound to comply with the transfer order. The ground regarding violation of Clause-33 of the transfer policy was considered by this Court in the case of Balram Dhakar vs. State of M.P. & Ors. (Writ Petition No.17800/2021, decided on 09.09.2021) and the aforesaid writ petition has been dismissed on the ground that of finding no violation of Clause-33 of the transfer policy with respect to office bearers. It is submitted that in pursuance to the earlier order passed by this Court in Writ Petition No.17442/2021 the authorities have already considered and rejected the representation of the petitioner pointing out the fact that the petitioner is working at the same place for last 6-7 years and the transfer of the petitioner is on administrative grounds. Thus, no illegality is found in the impugned order. In view of the aforesaid, he has prayed for dismissal of the writ petition.
Heard the learned counsels of the parties and perused the record. From the perusal of the record, it is seen that the main ground of challenging the transfer order is that the petitioner is an elected office bearer and not a nominated office bearer. The aforesaid aspect was considered by this Court in the case of Balram Dhakar (supra); wherein, the Coordinate Bench has held as under:-
" T h e r e is a vast difference between "Âœelected"Â and "nominated"Â. A person is elected after he gets highest votes amongst Signature Not Verified SAN the candidates that means he is the choice of voters whereas Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.29 11:26:24 IST
3 WP-21915-2021 "nomination"Â is nothing but it is an order issued according to the whims and wishes of the issuing authority. The "Âœnominated"Â office bearers cannot be said to be the representative of the voters in the same letter and spirit in which the elected office bearers would be. The intention of the State Government in granting exemption to the "elected"Â office bearers is that the representative of the voters should not be disturbed, so that they can effectively act as a bridge between the employee and employer. That is why the State Government has chosen not to include the word "Âœnomination"Â in clause 33 of the transfer policy and by ignoring the material difference between the "elected" office bearers and "nominated" office bearers, the Secretary, GAD on his own added the word "nominated"Â in letter dated 26.7.2021. By no stretch of imagination, this letter can be said to have amended the clause 33 of the transfer policy.
Und er these circumstances, this Court is of the considered opinion that the word "œnominated" mentioned in letter dated 26.7.2021 has no sanctity in law and cannot be read contrary to clause 33 of the transfer policy and the word "œnomination" in letter dated 26.7.2021 does not create any right in favour of the office bearers who have not been elected but have been nominated.
No other argument is advanced by the counsel for the parties. For the reasons mentioned above, the petition fails and is hereby dismissed."
It is not disputed that the petitioner is an elected office bearer. In the earlier round of litigation the petition was disposed of directing the respondents/authorities as under:-
"It is also directed that till decision on his representation, no coercive action shall be taken against the petitioner. If the petitioner has not been relieved so far, he can be allowed to Signature Not Verified SAN continue at the present place of posting for a period of thirty days Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.29 11:26:24 IST 4 WP-21915-2021 or till decision on his pending representation."
In pursuance to the same, the respondents/authorities have considered and decided the representation dated 30.09.2021. It is seen that the grounds, which have been taken in the representation that he is an elected office bearer and there are no complaints against the petitioner. The work of the petitioner has been found to be satisfactory. In such circumstances, transferring the petitioner is per se illegal. The aforesaid aspect has not been dealt with by the respondents/authorities while deciding the representation of the petitioner. The respondents/authorities have considered the aspect that the petitioner is continuously working since last 6-7 years in Gram Panchayat Sarsba and the transfer is made on the administrative grounds, but the order dated 30.09.2021 rejecting the representation of the petitioner does not spell out that the consideration of ground raised by the petitioner that he being an elected office bearer is entitled for exemption in terms of the Clause-33 of the Policy has not been considered by the authorities. Clause-33 of the transfer policy reads under:-
^^33- jkT; 'kklu ls i=kpkj djus dh ekU;rk izkIr deZpkjh laxBuksa ds izns'k@laHkkx@ftyk@rglhy@fodkl [k.M 'kk[kk ds inkf/kdkfj;ksa ;Fkk&v/; {k@lfpo@dks"kk/;{k dks in ij fu;qfDr mijkar LFkkukarj.k ls nks inkof/k ds fy;s vFkkZr 4 o"kZ rd dh lkekU;r% NwV izkIr gksxhA ;g lqfo/kk mlds iwjs lsokdky esa fuEukuqlkj nks inkof/k ds fy;s feysxhA 4 o"kZ ls vf/kd inLFkkiuk vof/k iw.kZ gksus ij iz'kkldh;
vko';drk vuqlkj ,sls inkf/kdkfj;ksa dks Hkh LFkkukarfjr fd;k tk ldsxkA laxBu ds inksa esa fu;qfDr dh iwoZ lwpuk ds laca/k esa l{ke izkf/kdkjh dh larqf"V dk vk/kkj eq[; gksxkA bla laca/k esa 'kklu ds i= dzekad ,Q 10&6@05@1&15@d-d- fnukad 24 vizSy] 2006 ds izkfo/kkuksa dk voyksdu djsa] ftlesa Li"V fd;k x;k gS fd ekU;rk izkIr deZpkjh laxBuksa n~okjk fuokZpu ds i'pkr fuokZfpr inkf/kdkfj;ksa dh lwph muds dk;Zdky lfgr lacaf/kr dysDVj dks nh tk;sxh blds lkFk&lkFk lacaf/kr foHkkx izeq[k] tgka os dk;Zjr gksa] rFkk lkekU; iz'kklu foHkkx ¼deZpkjh dY;k.k izdks"B½ dks fnukad 30 vizSy dh fLFkfr esa lkSai nh xbZ gks] mUgh Signature Not Verified SAN inkf/kdkfj;ksa dks LFkkukarj.k ls NwV dk ykHk fn;k tkuk pkfg,A^^ Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.29 11:26:24 IST 5 WP-21915-2021 I n such circumstances, the order rejecting the representation of the petitioner, dated 30.09.2021 is per se illegal and unsustainable as the same is a non speaking order, passed without application of mind and in violation of the directions given in the earlier round of litigation, accordingly, the same is hereby quashed. The matter is remanded back to the authorities for reconsideration of the representation of the petitioner in the light of the order passed by this Court in the case of Balram Dhakar (supra). The authorities are expected to conclude the proceedings within a period of 30 days from the date of receipt of certified copy of this order.
Accordingly, the petition stands allowed and disposed of. Certified copy as per rules.
(VISHAL MISHRA) JUDGE taj Signature Not Verified SAN Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.29 11:26:24 IST