Madhya Pradesh High Court
Seema Pasi vs The State Of Madhya Pradesh on 3 March, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court of Madhya Pradesh
W.P. 770/2021
(Seema Pasi Vs. State of M.P. And others)
Jabalpur dated : 03/03/2021
Shri Vikas Mishra, Advocate for the petitioner.
Shri Ajay Pratap Singh, Dy. Advocate General and Shri Gourav
Tiwari, P.L. for the respondents/State.
Shri Sankalp Kochar, Advocate for the respondent No.5.
Writ jurisdiction of this Court under Article 226 of the Constitution of India is invoked to assail the legality and validity of the order dated 31.12.2020 contained in Annexure-P/1 issued by the respondent No.2 shifting/transferring of the petitioner (District Manager-Evaluation and Monitoring) from District Jabalpur to District Anuppur and the reason shown in the impugned order is administrative exigency and for effecting rationalization.
2. Learned counsel for the petitioner has raised three folds submission in support of challenge to the impugned order which are as follows:-
(i) the services of the petitioner which are contractual in nature pursuant to the order passed in 2018 are non-
transferable;
(ii) the petitioner's mother-in-law is old, ailing and disabled;
(iii) that in matter involving similar issue i.e. W.P. No.8931/2020 (vide Annexure-P/5), Co-ordinate Bench of this Court has quashed the order of transfer vide order dated 06.08.2020.
3. As regards the first round of contractual services of the petitioner being non-transferable is concerned, the same may not detain this Court 2 for long in view of recent decision of the Co-ordinate Bench of this Court in the case of Rabikant Tiwari Vs. State of M.P. and others, which was decided by common judgment dated 27.02.2021 along with bunch of similar cases where while considering the issue of transferability of persons occupying the same post as held by the petitioner herein this Court came to the following conclusion:-
"Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that though the appointment of the petitioner is on contract basis but the appointment order dated 01.09.2015 itself contains the following conditions:
15 vkidh inLFkkiuk iz'kklfud vk/kkj ij fe'ku ds ftyksa esa ifjofrZr @LFkkukarfjr djus dk vf/kdkj jkT; vkthfodk Qksje @ ,uvkj,y,e dks gksxkA The policy circular dated 24.02.2020 has been placed on record and the said circular contained provision in respect of the transfer:
9.1 lafonk veys dh fu;qfDr LFkku fo'ks"k ,oa dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk izko/kku ugha gSA izk'kklfud O;oLFkkvksa dks ns[krs gq, fo'ks"k ifjfLFkfr;ksa esa LFkkukarj.k fd;k tk ldsxkA lafonk vuqca/k lekIr dj LFkku ifjorZu djrs gq, leku dk;Z o ifjofrZr LFkku gsrq uohu vuqca/k fd;s tkus dh Lohd`fr nh tk ldrh gSA uohu vuqca/k dh vof/k dk;Z ij mifLFkfr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd dh gksxhA The above clause has been considered by the Co-ordinate Bench of this Court in WP No.1027/2021 vide order dated05.02.2021 in the case of Shabana Begum vs. State of M.P. and others and it has been held that the said clause permits transfer. The view taken by the Co-ordinate Bench in the matter of Shabana Begum(supra) after noting clause 9.1 of the policy reads as under:
The impugned order has been issued under Clause 9.1 of the circular. From plain reading of Clause 3.3 of the circular, it is clear that in case of change of place, a fresh agreement shall be executed at the changed place.
Clause 9.1 is in two parts. The first part of 3 this Clause provides that the contractual employee shall be appointed for a particular place and for discharging particular duties and there is no provision for transfer. However, the second part of this clause provides that in view of administrative exigencies, under special circumstances a contractual employee can be transferred and in that situation after changing the place of posting, permission for execution of new agreement at the changed place can be granted and the tenure of the contractual employee at the changed place would be from the date of his posting till 31st March of the financial year. Thus, it is clear that there is no absolute bar to the effect that a contractual employee appointed for a particular place cannot be shifted/transferred under any W.P. No.15911/2020 & connected cases circumstances. The only requirement is that since the agreement is always executed for aparticular place, then in case of shifting/transfer, a fresh agreement is required to be executed. Since the employees are working on contract basis, therefore, execution of new contract would not in any manner effect their any right or seniority. Under these circumstances, this Court is unable to accept the contention of counsel for the petitioner that the post, which the petitioner is holding, is a non-transferable post and under no circumstances, she cannot be transferred from Katni."
In the above judgment, considering the same issue of transfer in respect of similarly situated persons, the Coordinate Bench has already taken the view that transfer is permissible. The respondents have also placed on record Human Resource Manual which also contains the provision in Clause 3.5 stating that all fixed tenure staff would be transferable as per the need of SRLM. Another Co- ordinate Bench of this Court in the matter of Maithali Saran Trivedi vs. State of M.P. vide order dated 16.06.2020 dismissing the Writ Petition No.7779/2020 against transfer order by similarly situated employees, has held as under:
'Shri Sharma, learned Deputy Advocate General appearing for the respondents/State submits that the policy issued by the State Government dated24.02.2020 (Annexure-P/3) contained a specific provision for transfer under Clause-9 of the said policy and accordingly, the petitioner has rightly been transferred. He further submits that the order passed by the coordinate Bench in aforesaid writ petition on which the petitioner is 4 relying upon, is not helpful for the petitioner because the Court has not considered the relevant policy dated 24.02.2020, but considered the earlier policy dated 01.12.2015 which provides the post of contract employee is a non-transferable post. Considering the above, I am of the opinion that taking note of the provisions of policy dated 24.02.2020 (Annexure-P/3), the petitioner can be transferred from one place to another and as such, the order impugned also contained the respective provision of transfer. The coordinate Bench admittedly has not been apprised about the existing transfer policy and, therefore, the order has been passed in view of the provisions of policy dated 01.12.2015, the petitioner, therefore, is not entitled to get any benefit of the order passed by the coordinate Bench and principle of parity is also not applicable in the present facts and circumstances of the case.' Learned counsel appearing for the petitioner has placed reliance upon the interim order passed in WP No.16811/2020 but the said writ petition has subsequently been dismissed by the Co-ordinate Bench by order dated 21.12.2020 by holding as under:
'In the present case, the petitioner failed to demonstrate any such illegality in the order on the basis of which interference can be made that too exercising the jurisdiction of Article 226 of the Constitution of India. As per the settled principle of law the employer is the best judge to consider as to where and how services of its employees can be utilized and after raising grievance before the employer, impugned order has been passed rejecting the request made by the petitioner. Therefore, in such circumstance judicial review in a matter of transfer is not permissible and accordingly as such I do not find any substance in the petition.' It is the settled position in law that the services of a contract employee are governed by the terms of the contract. In the present case, the appointment order of the petitioner itself contains a clause relating to transfer and in addition thereto the policy also provides for transfer, hence, in terms thereof, the respondents have right to transfer the petitioner. The impugned order of transfer is a general order of transfer whereby several such employees W.P. No.15911/2020 & connected cases have been transferred to different places on account of the administrative exigency.
In the reply, the respondents have demonstrated that the posts are lying vacant at transferred place. The petitioner has placed reliance upon the Full Bench judgment of this Court in the case of Ashok Tiwari(supra) but in that case also it has been held that transfer is permissible if conditions of service and the contract of service contemplates a provision for transfer from one place to another, hence, the petitioner is not entitled to the benefit of the said judgment. Learned counsel for the petitioner 5 has also placed reliance upon the judgment in the matter of Vandana Dandotiya(supra) but in that case the terms of appointment were different.
The record further reflects that the petitioner has already been relieved but he has not joined at the transferred place though there was no interim protection in the matter. Hence, the conduct of the petitioner also disentitles him for any relief in exercise of the equitable jurisdiction under Article 226 of the Constitution.
The impugned order of transfer has not been shown to have been passed in violation of any statutory provision nor any malafide has been alleged or established. The respondents have duly considered the petitioner's representation against the impugned order of transfer and have rejected it by a reasoned order. The Supreme Court in the matter of Shilpi Bose vs. State of Bihar reported in 1991 Supp. (2) SCC 659 considering the scope of interference in a petition challenging the order of transfer has held as under:
4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department...... In view of the above, I am of the opinion that no case for interference in the impugned order of transfer is made out. The petitions are accordingly dismissed.
The signed order be placed in the record of WP No.15911/2020 and a copy thereof be placed in the record of connected writ petitions."
4. In view of above, there is no substance qua the first ground.
5. As regards other ground that the petitioner's mother-in-law being old, ailing and disabled is concerned, the same does not relate to the field of law but compassion, since it lies within the exclusive domain of the employer to consider and, therefore, this Court ought not to dwell into the 6 same and thus extends liberty to the petitioner to make appropriate representation in this regard to the employer, who is obliged to consider the same.
6. As regards the third ground of similar issue having been decided earlier in W.P. No.8931/2020 vide Annexure-P/5 does not impress this Court as bare perusal of order dated 06.08.2020 passed in the said case vide Annexure-P/5 reveals that the same relates the post of Programme Officer, which is distinct and is governed by different set of Rules, Regulations and Scheme and, therefore, no parity can be drawn. Thus, the order Annexure-P/5 is of no avail to the petitioner.
7. Once it is held that the services attached to a particular post are transferable when the scope of interference in matters of transfer and shifting are extremely limited. The law in regard to interference in the matter of transfer of service is well settled. It is settled law in service jurisprudence that proven malafide, violation of constitutional or statutory provision, transfer order having been passed by incompetent authority or the same causing adverse effect to service conditions of the transferred employee, are some of the limited grounds on which an order of transfer of service can be successfully challenged. None of these grounds are made out in the present case and, therefore, this Court declines interference in the matter.
8. Accordingly, the present writ petition stands dismissed, sans cost.
(Sheel Nagu) Judge pn Digitally signed by PANKAJ NAGLE Date: 2021.03.04 15:04:03 +05'30'