Madhya Pradesh High Court
Rajendra Prasad Mishra vs Urban Administration And Housing ... on 19 September, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W A No. 1458 / 2019
RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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INDORE, Dated : 19/09/2019
Mr. LC Patne, learned counsel for the petitioner.
Mr. Vinay Gandhi, learned counsel for the respondent
No.1 State.
Mr. AK Sethi, learned senior counsel appearing with
Mr. Chetan Jain, Advocate, learned counsel for the
respondent No.2.
Heard.
The present Writ Appeal is arising out of order dated
26/8/2019 passed in Writ Petition No. 17619/2019 in the
case of Rajendra Prasad Mishra Vs. State of M.P. and one
another.
Facts of the case reveal that the appellant who was
working on the post of Chief Municipal Officer, Municipal Corporation, Mandsaur came up before this Court by filing a Writ Petition challenging the order dated 21/08/2019 passed by the State Government transferring the petitioner as Dy. Commissioner, Nagar Palik Nigam, Bhopal. Various grounds were raised by the petitioner and all the grounds raised by the petitioner have been looked into by the learned Single Judge and the learned Single Judge has dismissed the Writ Petition. The learned Single Judge has placed reliance upon the judgment delivered by the High Court of Madhya Pradesh in the case of Sanjesh Gupta Vs. State of MP and others (W.P.No. 5086/2019 decided on 19/3/2019). Paragraphs 4, 5, 6 and 7 of the order passed by the learned HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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Single Judge reads as under:
4. Shri Abhinav Dhanodkar, learned Dy. Advocate General appearing for respondent No.1, submits that similar issue came up for consideration before this Court in W.P. No.5086/2019 and vide order dated 19.3.2019, said writ petition has been dismissed by the coordinate Bench of this Court.
Relevant part of the aforesaid order is reproduced below :
"Undisputedly the services of petitioner are governed by MP State Municipal Service (Executive) Rules, 1973. These rules have been amended by notification dated 10th April 2015 in exercise of powers conferred by Section 355 Read with Section 86(2) of MP Municipalities Act, 1961. In terms of aforesaid Rule, the petitioner is Member of MP Urban Administrative Service. The IInd Schedule to amended Rule provides for posting of Chief Municipal Officer as Dy. Commissioner Municipal Corporation.
It is worth noting that deputation posting is specifically mentioned in column 10 of Schedule II, but posting of CMO as Dy. Commissioner is not mentioned as deputation. Hence in view of these amended Rules the posting of petitioner as Dy. Commissioner Municipal Corporation Ujjain is on transfer and is not on deputation. Thus no consent of petitioner is required.
In orders dated 13/2/2019 passed in WP no. 3019/19 (s) in the matter of Radheshyam Mandloi Vs. State of MP and others; order dated 11/3/2019 passed in WP No. 4749/19 in the matter of Smt. Meenakshi Patidar Vs. State of MP and others; order dated 11/5/2017 in WP No. 7898/14; order dated 1/2/2018 passed in WP No. 3649/17 in the case of Piyush Bhargav Vs. State of MP and others; and order dated 14/3/2019 passed in WP No. 5502/2019, the aforesaid amended rules have not been brought to notice of the Court, hence the petitioner is not entitled to the benefit of those orders.
The impugned order of transfer is a general order of transfer whereby several such CMOs have been transferred on administrative ground. Transfer of respondent no. 3 as Health Officer in Municipality Neemuch and his transfer is not in the place of petitioner.
So far as the issue of frequent transfer is concerned, the petitioner was last transferred on 14/6/2017 from HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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Malhargadh District Mandsaur to Neemuch and thereafter more than one year and eight months have passed. Hence no interference on that ground is required.
The reply of respondents reveals that on account of administrative exigency and forthcoming election, respondent no. 3 has been given the charge of CMO temporarily. Hence it cannot be inferred that transfer of petitioner is for any malafide reason.
The scope of interference in transfer matters is very limited.
Supreme court in the matter of Abani Kanta Ray Vs. State of Orissa and others reported in 1995 supp (4) SCC 169 in this regard has held that transfer is an incident of service and the transfer order is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer.
In the matter of Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and others reported in (2004) 12 SCC 299 it has been held that:
"4.Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray vs. State of Orissa. Unless the order of transfer is vitiated by malafide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India vs. S.L. Abbas). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India & Ors. Janardhan Debanath it was observed as follows:
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. vs. Shri Bhagwan."
In the matter of Major General J.K. Bansal Vs. Union of India and others reported in (2005) 7 SCC 227 the earlier judgments on the scope of interference in the order of transfer have been considered and it has been held that:
" 8. Before we advert to the submissions made by the learned counsel for the appellant, it will be useful to take notice of the law regarding the scope of interference in a writ petition filed under Article 226 of the Constitution assailing an order of transfer.
9. In Shilpi Bose Vs. State of Bihar the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under
(SCC p. 661 para 4): -
"4. In our opinion, the courts should not interfere with a transfer order which are 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."
10. In Union of India and others vs. S.L. Abbas the respondent was working at Shillong in the office of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under:
(SCC p.359, para 7) "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it.
While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management."
Having regard to the aforesaid and considering the fact that the impugned order of transfer has not been passed in violation of any statutory provision nor any malaides are established, I am of the opinion that no case for interference in the impugned order of transfer is made out. The writ petition is accordingly dismissed."
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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5. By the aforesaid order, the coordinate Bench of this Court has held that Chief Municipal Officer of a Muncipality can be posted as Dy. Commissioner in the Municipal Corporation and the scope of interference by the High Court in transfer matters has also been considered by the apex Court. In view of the above, the coordinate Bench of this Court has declined to interfere with the transfer on the issue of frequent transfers also.
6. Besides above, vide order dated 29.4.2015, the petitioner was transferred from Chief Municipal Officer, Nagar Palika Parishad Vidisha to Dy. Commissioner, Nagar Palika Nigam, Bhopal. In pursuant to the said order, he joined the duties and thereafter, vide order dated 5.3.2016, he was transferred to Chief Municipal Officer, Nagar Palika Parishad Danoh. At the time of issuance of order dated 29.4.2015, he did not object his posting in Municipal Corporation and complied with the said order. It appears that, he was aware about the Notification dated 10.4.2015 and that is why he complied with the order dated 29.4.2015 without any objection that being a Chief Municipal Officer, he cannot be posted as Dy. Commissioner. Despite knowing aforesaid Notification, he has filed the present petition challenging his transfer mainly on the ground that being a Chief Municipal Officer, he cannot be transferred to Municipal Corporation. The petitioner has not come with clean hands before this Court.
7. In view of the foregoing discussion, this petition fails and is hereby dismissed.
Mr. L.C. Patne, learned counsel for the petitioner while challenging the order passed by the learned Single Judge has placed heavy reliance upon the judgment delivered in the case of Prasar Bharti Vs. Amarjeet reported in (2007) 9 SCC
539. The aforesaid case was a case relating to transfer on deputation. The present case is certainly not a case relating to transfer on deputation and, therefore, as in the present case the petitioner has been simply transferred to another place, HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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the judgment relied upon by the learned counsel for the petitioner is of no help. Similarly, reliance has also been placed upon the judgment delivered in the case of Uma Vs. State of Bihar reported in (1999) 4 SCC 659. Again the aforesaid case was relating to deputation. Reliance has also been placed upon the judgment delivered in the case of State of Punjab Vs. Indar Singh reported in (1997) 8 SCC 372. It was again a case of deputation.
The most important aspect of the case is that the State Government in exercise of powers conferred by Section 355 read with sub-Section (2) of Section 86 of the M.P. Municipalities Act, 1961 has framed the Rules known as M.P. Municipal Services Executive Rules, 1973. The Rules have been amended and the last amendment took place on 10/4/2015 and it is published in the official Gazette. Second Schedule appended to the Rules is quoted as below:
S. Name of No. Classificati Scale of Mode of Posting Educational qualification No. the Posts of on of Grade Pay Recruitment Posts By By Minim Maxi For direct For Promotion Direct Promo- um mum recruitment recruit tion Age Age
-ment limit limit (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) 1 Additional 1 Senior 37400-6700 - 100% - - Additional Director in -- By promotion of Director Class-I Grade pay Directorate-1 (On officer of Joint Urban 8700 Deputation) Director level having Administrati at least 5 years on experience of the respective post 2 Joint 14 Senior 15600- - 100% - - 1. Joint Director in -- By promotion of Director Class-I 39100 Directorate-2 (On Officer of Chief Urban Grade pay Deputation) Municipal Officer Administrati 7600 2. In Divisional Office-7 Class A having at on 3. Additional least 5 years Commissioner and experience on the reserve in Municipal respective post Corporation-5 3 Chief 84 Class-I 15600- - 100% - - 1. Deputy Director in -- By promotion of Municipal 39100 Directorate-2 (On Officer of Chief Officer Grade pay Deputation) Municipal Officer (Class-A) 6600 2. In Divisional Office- Class B and Revenue 01 Officer of Class AA,
3. SUDA-50 or class A Municipal
4. In Municipal Council Council having at (above 1) lakh least 5 years Population)-19 experience of the
5. Deputy Commissioner respective post and reserve in Municipal Corporation-12 4 Chief 107 Class II 15600- 50% 50% 21 40 1. Asst. Director in Graduate By promotion of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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Municipal 39100 years years Directorate-8 (On of a Officers of Chief Officer Grade Pay deputation) recognized Municipal Officer (Class B) 5400 2. In Divisional Office-5 University Class C and Revenue
3. In Municipal Council Inspectors of Class (Below 1 lakh AA, A and Class B Population) 78 Municipal Council 4 Asstt. Commissioner having at least years and reserve in Municipal experience of the Corporation-16 respective post.
5 Chief 267 Class III 9300-54800 50% 50% 21 40 1. Municipal Council- Graduate By promotion of
Municipal Grade pay years years 257 of a Supreintendent of
Officer 3600 2 Reserve-10 Recognize Class A
(Class C) d Municipal Council
University Revenue Inspectors
and Revenue sub
Inspectors of Class C
Municipal Council
and employee of the
Municipal Council
having at least 5
years experience of
the respective post
The aforesaid Schedule makes it very clear that the Chief Municipal Officer Class A can be transferred as Dy. Commissioner which is an equivalent post. The Schedule provides that posting can be done by the Government of a Chief Municipal Officer Class A to the post of Dy. Commissioner and the petitioner has been posted as Dy. Commissioner at Bhopal. The most shocking aspect of the case is that the petitioner was earlier also transferred to the post of Dy. Commissioner Nagar Palika Nigam, Bhopal on 29/4/2015. The petitioner has complied with the aforesaid order as it was suitable to him at the relevant point of time. Again he was transferred vide order dated 5/3/2016 to Nagar Palika Parishad, Danoh, meaning thereby, the petitioner was fully aware of the Schedule and in those circumstances the learned Single Judge has observed that the petitioner has not come with clean hands before this Court.
Learned counsel for the petitioner has vehemently argued before this Court that there is no estoppel against law. It is certainly true that there is no estoppel against law. In HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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fact, the learned Single Judge has commented upon the conduct of the petitioner and this Court is of the considered opinion that the petitioner has certainly not come with clean hands. He was earlier also posted as Dy. Commissioner and he did not raise any hue and cry, however, now as the transfer order is not conducive to him, he is raising all hue and cry in the matter. The transfer is an incident of service and unless and until it suffers from the vice of non-application of mind or it has been passed with oblique and ulterior motive, the question of interference by this Court does not arise.
The apex Court in the case of Union of India and others Vs. S. L. Abbas reported in (1993) 4 SCC 357 in paragraph 10 has held as under :
The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be charactrised as malafide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.
In the light of the aforesaid judgment as the transfer order has been passed purely keeping in view the administrative exigencies, the petitioner has been posted to a post which finds place in the Second Schedule appended to the M.P. Municipal Services Executive Rules, 1973, the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W A No. 1458 / 2019 RAJENDRA PRASAD MISHRA VS. STATE OF MP & ANOTHER
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question of interference in the peculiar facts and circumstances of the case does not arise. Resultantly, the Writ Appeal stands dismissed. No order as to costs.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
KR
Digitally signed by Kamal Rathor
Date: 2019.09.30 11:08:54 +05'30'