Madhya Pradesh High Court
Nand Kishore Maravi vs The State Of Madhya Pradesh on 15 December, 2022
Author: Sheel Nagu
Bench: Sheel Nagu
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
WRIT PETITION No. 23163 of 2022
BETWEEN:-
SINGRAM SINGH DHURVE S/O MANGAL
SINGH, AGED ABOUT 32 YEARS,
OCCUPATION: FIELDMAN, R/O WARD NO.
18, KOTWAR TOLA, GRAM BHANPUR
KHEDA, KATANGA MAL, MANDLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
DEPARTMENT OF FOREST, MANTRALAYA
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. THE MANAGING DIRECTOR, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD,
PANCHANAN, 5TH FLOOR, MALVIYA
NAGAR, BHOPAL (MADHYA PRADESH)
3. THE REGIONAL MANAGER, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD.,
MOHGAON PARIYOJNA MANDLA,
MANDLA (MADHYA PRADESH)
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4. THE PROJECT ZONAL OFFICER, ZON
CHAABI, MADHYA PRADESH RAJYA VAN
VIKAS NIGAM LTD, MOHGAON
PARIYOJNA MANDAL, MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1/STATE BY SHRI NAVEEN DUBEY -
GOVERNMENT ADVOCATE)
(RESPONDENT NO.2 TO 4 BY SMT. GULAB KALI PATEL -
ADVOCATE)
WRIT PETITION No. 23165 of 2022
BETWEEN:-
LUCKY KUCHHWAHA S/O SHRI SHYAM
BIHARI KACHHWAHA, AGED ABOUT 32
YEARS, OCCUPATION: FIELDMAN R/O
SUBHASH WARD NO. 14, NEAR DURGA
MANDIR, MANDLA (M.P.) (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
DEPARTMENT OF FOREST, MANTRALAYA
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE MANAGING DIRECTOR, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD,
- 3 -
PANCHANAN, 5TH FLOOR, MALVIYA
NAGAR, BHOPAL (MADHYA PRADESH)
3. THE REGIONAL MANAGER, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD.,
MOHGAON PARIYOJNA MANDLA,
MANDLA (MADHYA PRADESH)
4. THE PROJECT ZONAL OFFICER, ZON
CHAABI, MADHYA PRADESH RAJYA VAN
VIKAS NIGAM LTD, MOHGAON
PARIYOJNA MANDAL, MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1/STATE BY SHRI NAVEEN DUBEY -
GOVERNMENT ADVOCATE)
(RESPONDENT NO.2 TO 4 BY SMT. GULAB KALI PATEL -
ADVOCATE)
WRIT PETITION No. 23230 of 2022
BETWEEN:-
NAND KISHORE MARAVI S/O SHRI PHOOL
SINGH MARAVI, AGED ABOUT 35 YEARS,
OCCUPATION: FIELDMAN, R/O H.NO. 27,
TIKRA TOLA, KEOLARI BHUA RYT.,
BHUABICHHIA, MANDLA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
DEPARTMENT OF FOREST, MANTRALAYA
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VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE MANAGING DIRECTOR, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD,
PANCHANAN, 5TH FLOOR, MALVIYA
NAGAR, BHOPAL (MADHYA PRADESH)
3. THE REGIONAL MANAGER, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD.,
MOHGAON PARIYOJNA MANDLA,
MANDLA (MADHYA PRADESH)
4. THE PROJECT ZONAL OFFICER, ZON
CHAABI, MADHYA PRADESH RAJYA VAN
VIKAS NIGAM LTD, MOHGAON
PARIYOJNA MANDAL, MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1/STATE BY SHRI NAVEEN DUBEY -
GOVERNMENT ADVOCATE)
(RESPONDENT NO.2 TO 4 BY SMT. GULAB KALI PATEL -
ADVOCATE)
WRIT PETITION No. 23289 of 2022
BETWEEN:-
SHYAM KUMAR DHURVE S/O SHRI TEJ
KUMAR DHURWEY, AGED ABOUT 30
YEARS, OCCUPATION: FIELDMAN, R/O
FOREST COLONY CHEBI, DISTT. MANDLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHUKLA - ADVOCATE)
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AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
DEPARTMENT OF FOREST, MANTRALAYA
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE MANAGING DIRECTOR, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD,
PANCHANAN, 5TH FLOOR, MALVIYA
NAGAR, BHOPAL (MADHYA PRADESH)
3. THE REGIONAL MANAGER, MADHYA
PRADESH RAJYA VAN VIKAS NIGAM LTD.,
MOHGAON PARIYOJNA MANDLA,
MANDLA (MADHYA PRADESH)
4. THE PROJECT ZONAL OFFICER, ZON
CHAABI, MADHYA PRADESH RAJYA VAN
VIKAS NIGAM LTD, MOHGAON
PARIYOJNA MANDAL, MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1/STATE BY SHRI NAVEEN DUBEY -
GOVERNMENT ADVOCATE)
(RESPONDENT NO.2 TO 4 BY SMT. GULAB KALI PATEL -
ADVOCATE)
-----------------------------------------------------------------------------------------
Reserved on : 14.11.2022
Pronounced on : 15.12.2022
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These petitions having been heard and reserved for orders,coming
on for pronouncement this day, the Court pronounced the following:
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ORDER
This common order shall govern the disposal of WP. No.23163/2022, WP. No.23165/2022, WP. No.23230/2022 and WP. No.23289/2022.
2. In this bunch of four petitions bearing WP. No.23163/2022, WP. No.23165/2022, WP. No.23230/2022 and WP. No.23289/2022, same order of transfer dated 04.10.2022 (Anexure P/1) and order of relieving dated 10.10.2022 are under challenged whereby all the petitioners in these writ petitions being Fieldman have been transferred from one Project Division to other and have been relieved on 10.10.2022.
2.1 The grounds of challenge to order of transfer in WP. No.23165/2022, WP. No.23230/2022 and WP. No.23289/2022 are of mala fide as well as frequent transfer whereas in WP. No.23163/2022 is of mala fide only. In support of ground of mala fide, decision of Apex Court in (2009) 2 SCC 592 (Somesh Tiwari vs. Union of India & Others), decision of Division Bench of Bombay High Court reported in 2017 SCC Online Bom 9671 (Sanjay Tulshiram Shinde vs. Maharashtra State Electricity Transmission Co. Ltd. & Others) and Single Bench decision of this Court rendered on 18.08.2022 in WP. No.18335/2022 (Neelima Rajalwal vs. State of M.P. & Others) are relied upon where the Bombay High Court interfered on the ground of mala fide and Single Bench of this Court interfered on the ground of transfer order being punitive.
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3 The mala fide which is common ground in all four petitions is founded upon a letter dated 22.04.2022 (Annexure P/3) of Regional Chief Manager of respondent-Nigam. In the said letter, a proposal has been made for transferring five employees including four petitioners herein out of Mohgaon Division, Mandla to different Divisions i.e. Rewa, Sidhi, Umaria and Kundam (Jabalpur). The said letter reveals that one Hari Ram Ahirwar working with the respondent-Nigam, who happens to be President of Vanrakshak Kalyan Sangh organized a strike at the premises of Mohgaon Project Division, Mandla alongwith his supporters. The said letter further reveals that because of said strike other employees were instigated to abstain from work leading to disruption in the administrative work of office and tarnishing the image of respondent-Nigam. The said letter also reveals that the demand of striking employees was of transfer of one Shri Atul Vajpayee, Sahayak Pariyojna Kshetrapal, which was acceded to by the employer by transferring out Shri Atul Vajpayee. The said letter further reveals that despite employer having met the demand of striking employees, which resulted into end of the strike, the striking employees continued to show disinterest towards the work of forestry entrusted to respondent-Nigam. The said letter further elicits that this disinterest is causing adverse effect upon the sincere employees of respondent-Nigam. In this background, the letter concluded that in the interest of administration and public interest, it would be appropriate to transfer out the employees, who are the cause of disruption of work of forestry. As a
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result, said proposal was accepted and impugned orders of transfer were issued as a necessary consequence.
3.1 In WP. No.23165/2022, WP. No.23230/2022 and WP. No.23289/2022, the additional ground of frequent transfer has also been raised and for the said purpose, reliance is placed on decision of Coordinate Bench of this Court in WA. No.1059/2021 (Ashish Bharke vs. State of M.P. & Others) passed on 06.12.2021 and Single Bench decision of this Court in WP. No.21175/2019 (Sanjay Upadhyay vs. State of M.P. & Others) passed on 03.12.2019.
4. The law in regard to scope of interference in the matter of transfer of service is well settled. Proven mala fides, transfer being violative of any constitutional or statutory provision, order having been issued by an incompetent authority or the same causing adverse effect to service conditions of the transferred employee, are some of the legitimate grounds which can be raised successfully while challenging an order of transfer.
4.1 The employer is entitled to transfer an employee working in a transferable post in public interest, conducive to and in furtherance of better administration. It is settled law that device of transfer ought not to be used merely as a substitute for punishment, but at the same time the employer is well within its bound to transfer an employee, if a larger public interest is served, even if in the process certain personal interests of the employees have to be sacrificed.
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4.2 In the instant case, aftermath of the strike, as enumerated above, led to disruption of smooth and efficient work in the administration at the place where the petitioners were working. The petitioners were not working efficiently and in fact were setting a bad example on other efficient employees, causing hindrance in the path of respondent-Nigam in implementing the policy regarding forestry entrusted to it. The transfer of petitioners was carried out to predominantly ensure smooth and efficient functioning in the office of Mohgaon Project Division, Mandla and to prevent the efficient and honest employees from getting disheartened and distressed.
4.3 The aforesaid object behind transfer of petitioners achieved a larger public interest of restoration of forestry activities, which had been disrupted due to bad example set by the petitioners. Thus, it is obvious that larger public interest of smooth, efficient, honest and uninterrupted administration work at the office of Mohgaon Project Division, Mandla is ensured by the impugned transfers.
4.4 In achieving of aforesaid larger public interest, if certain personal interests of petitioners i.e. frequent transfer, physical or financial inconvenience, then these become subservient to larger public goal.
5. The decision of Division Bench of Bombay High Court in Sanjay Tulshiram (supra) cited by the petitioners appears to be a case which lays down that transfer of service issued in violation of transfer policy can lead to vitiation of transfer whereas in Single Bench decision of this
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Court in Neelima Rajalwal (supra), the representation of transferred employees against transfer was rejected by an order, which palpably reflected punitive nature of transfer, which is not the case herein. Thus, this decision is of no avail to the petitioners. As regards the decision of Apex Court in Somesh Tiwari (supra) is concerned, same turns on its own facts that the transferred employee therein despite being protected by judicial orders passed by Tribunal of transfer was subjected to transfer. The decision of Coordinate Bench of this Court in Ashish Bharke (supra) also lays down that transfer caused in violation of transfer policy renders the transfer nugatory.
6. As regards the two decisions i.e. Division Bench decision of Bombay High Court in Sanjay Tulshiram (supra) and order of Coordinate Bench of this Court in WA. No.1059/2021 in the case of Ashish Bharke (supra), this Court in all its humanity is unable to subscribe to the view taken by the said two decisions. The reason is obvious.
6.1 The Apex Court as well as this Court time and again have held that an order of transfer passed in violation of any clause of transfer policy does not give rise to justifiable cause to the transferred employee. The relevant extract of judgments of Apex Court in Bank of India vs. Jagjit Singh Mehta, (1992) 1 SCC 306, Union of India vs. S.L. Abbas, (1993) 4 SCC 357 and State of M.P. vs. S.S. Kourav & Others, (1995) 3 SCC 270 and this Court in R.S. Chaudhary Vs. State Of M.P. &
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Others ILR [2007] M.P.1329 in this regard are reproduced below for ready reference and convenience:-
In Jagjit Singh Mehta (supra) "5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious.
However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the
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clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
In S.L. Abbas (supra) "6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order,-- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."
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In S.S. Kourav (supra) "4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."
In R.S. Chaudhary (supra) "35. Fulcrum of the matter is whether the decision in T.N.Bhardwaj (supra) govern the field and would be the binding precedent or that of the decision rendered in J.K. Bansal and others (supra) would be binding or both can simultaneously be valid. In the case of J.K. Bansal and others (supra) a three-Judge Bench of the Apex Court has referred to the decisions in Mrs. Shilpi Bose (supra) and National Hydroelectric Power Corporation Ltd. vs. Bhagwan (supra). Their Lordships have not only noticed but have quoted exhaustively the ratio laid down in the said decisions. Thus, the said decisions have been approved by the three-Judge Bench. In T.N. Bharadwaj (supra) what their Lordships have stated that the guidelines are binding on the Government. The binding nature of the guidelines, in our humble view, has to be understood in the context of Mrs. Shilpi Bose (supra),
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S.L. Abbas (supra), Jagjit Singh Mehta (supra) and S.S. Kaurav and others (supra). To elaborate the instructions or the guidelines do not confer any enforceable right on an employee. He has no vested right to remain at one post or the other. However, while ordering a transfer the authority must keep in mind the guidelines issued by the Government whether an order of transfer is passed in violation of the guidelines or the executive instructions. The action of the State Government should not be mala fide or malicious and should be tested on the anvil and touchstone of acceptable reasonableness. In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the gound that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity."
7. In view of aforesaid decision of Division Bench of Bombay High Court in Sanjay Tulshiram (supra) and decision of Coordinate Bench of this Court in Ashish Bharke (supra) (WA. No.1059/2021) are rendered per incuriam the law laid down by the Apex court in aforesaid cases and thus are denuded of their precedential value.
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8. Consequent upon the aforesaid discussion, this Court declines interference in the instant matters and dismisses all the four petitions for the reasons supra.
9. No cost.
(SHEEL NAGU) JUDGE mohsin MOHAMMED MOHSIN QURESHI 2022.12.15 15:04:06 +05'30'