Madhya Pradesh High Court
Ram Bhan Singh Bhadoriya vs The State Of Madhya Pradesh on 6 April, 2022
Author: Anand Pathak
Bench: Anand Pathak
1 W.P.Nos.7901/2022 & 7919/2022
HIGH COURT OF MADHYA PRADESH
W.P.No.7901/2022
(Ramniwas Sharma Vs. State of M.P. & Others)
Shri Prashant Sharma, learned counsel for the petitioner.
Shri Sanjay Kumar Sharma, learned Govt. Advocate for the
State.
Shri A. K.Nirankari, learned counsel for the respondent No.3/
Caveator.
..............................................................................................................
W.P.No.7919/2022
(Ram Bhan Singh Bhadoriya Vs. The State of Madhya Pradesh & Others) Shri Nitin Agrawal, learned counsel for the petitioner. Shri Sanjay Kumar Sharma, learned Govt. Advocate for the State.
Shri A.K.Nirankari, learned counsel for the respondent No.5. .............................................................................................................. Gwalior Bench, Dated : 06.04.2022 Looking to similitude of the controversy, both petitions are heard together and passed by the common order.
Facts of W.P.No.7901/2022
Petitioner is aggrieved by order dated 30.03.2022 (Annexure P-1) passed by the respondent/State, whereby petitioner, who is working as Chief Municipal Officer, Municipal Council (Ambah), District Morena, has been transferred as C.M.O. Municipal 2 W.P.Nos.7901/2022 & 7919/2022 HIGH COURT OF MADHYA PRADESH Council (Ambah) District Morena to as Chief Municipal Officer, Municipal Council (Badarwas) District Shivpuri. According to counsel for the petitioner, case of petitioners suffers from frequent transfers because since 03.02.2018 till today he has been transferred around 8-9 times and therefore, earlier he preferred a Writ Petition No.6535/2020 (Ramniwas Sharma Vs. State of M.P. and Others) assailing the order dated 07.03.2020, whereby he was transferred as Chief Municipal Officer, Municipal Council, Ambah, District Morena to Municipal Corporation, Morean District Morena as Assistant Commissioner, in which vide order dated 01.09.2020, this Court allowed the petition on the point of frequent transfers.
2. Another point raised by the petitioner is that he is going to superannuate on 30.09.2022. Only 6 months are left for petitioner to retire and therefore, at the fag end of his career, he wanted to retire peacefully from the place where he is posted so that he can make preparation for post retiral dues and can take care of pension related matters.
3. Learned counsel for the petitioner fairly submitted that he has been unilaterally relieved within three days else threat of suspension is looming large. He referred Clause 42 of the relevant Transfer Policy to submit that after passing of transfer order, two weeks' time is given for relieving which has not been followed here.
Facts of W.P.No.7919/2022 3 W.P.Nos.7901/2022 & 7919/2022
HIGH COURT OF MADHYA PRADESH
4. Incidentally and interestingly, instant petitioner is also taking exception to the transfer order dated 30.03.2022 (Annexure P/1) passed by the respondent/State, whereby petitioner, who is working as Incharge Chief Municipal Officer, Municipal Council, Akoda, District Bhind, has been transferred to as Incharge Chief Municipal Officer, Municipal Council, Prithvipur, District Niwari.
5. It is the submission of learned counsel for the petitioner that he is likely to be superannuated on January, 2023 and only 9 months is left for petitioner to superannuate. He submits that as per the Clause 22 of the Transfer Policy, if one year or less is remaining for retirement of employee then in normal circumstances, said employee ought not to be transferred. He fairly submitted that he has also been relieved but since he is suffering from some ailment, therefore, he has not joined at present place of posting and he was on medical leave. He relied upon the recent judgment of this Court in the case of X Vs. Registrar General, High Court of Madhya Pradesh and Ors., decided on 10.02.2022 in Writ Petition (Civil) No. 1137/2018 and referred order dated 28.10.2021 passed by the Division Bench of this Court in W.A.No.759/2021 (Ram Prakash Sharma Vs. State of M.P. & Ors).
6. On the other hand, learned counsel for the respondent/State opposed the prayer made by both the petitioners. According to the counsel for the respondent/State, transfer is an incidence of service and therefore, as per the administrative convenience, both the petitioners 4 W.P.Nos.7901/2022 & 7919/2022 HIGH COURT OF MADHYA PRADESH are posted at different places. No case for interference is made out and he prayed for dismissal of the petitions.
7. Learned counsel for the private respondents (on caveat in W.P.No.7901/2022) opposed the prayer and submitted that both the petitioners have been relieved from their present place of posting and petitioners at their places have joined. He also reiterated the arguments that due to administrative reasons, they have been transferred. He also referred the fact that certain irregularities have been committed by the petitioner of W.P.No.7901/2022 (Ramniwas Sharma) and therefore, he has been transferred.
8. Heard the learned counsel for the parties and perused the documents appended thereto.
9. This is a case of transfer where both the petitioners, who are working as Chief Municipal Officer at respective Municipal Councils have been transferred to different Municipal Council, as referred above. Admittedly, petitioner of W.P.No.7901/2022 has 6 months left to superannuate on 30.09.2022 and petitioner of W.P.No.7919/2022 has 9 months left to superannuate on 31.01.2023. It is also true that Clause 22 of the Transfer Policy stipulates that those officer/employees who are to be superannuated within one year usually, would not be subjected to transfer in normal course, meaning thereby under normal circumstances or usual course, they may retire from the place where they are working if they have one year to retire. In both the cases, less 5 W.P.Nos.7901/2022 & 7919/2022 HIGH COURT OF MADHYA PRADESH than one year is left for petitioners to retire. What was the dire administrative need which compelled the respondents/State to transfer the employees when 6 months (or 9 months) are left for petitioners to retire. Such an attempt rendered the case of respondents doubtful. If any petitioner was not performing the duties properly then other options were available including some stringent measures but if at the fag end of his tenure, employees sent on transfer then it is difficult for him to collect the pension papers and make preparation of Pension Payment Orders. Besides that, at the fag end of his career, he has to take care of his retirement, coupled with the other family issues to resolve. As a model employer, it is the duty of the State to look into the said exigencies. Even otherwise case of the petitioner of W.P.No.7901/2022 is surprising because of frequent transfers and this Court vide order dated 01.09.2020 in W.P.No.6535/2020 considered the said aspect and thereafter, quashed the impugned transfer order passed earlier in respect of the petitioner, therefore, on this count also case of the petitioner is strengthened.
10. What public purpose would be served, if petitioners are posted at different Municipal Councils for 6 months because that time would be consumed by them for getting acclimatized with the new surroundings and would lose interest in performance of public duties effectively. On this count, it appears that attempt of respondents is contrary to principle of public policy as discussed in judgment of the Apex Court 6 W.P.Nos.7901/2022 & 7919/2022 HIGH COURT OF MADHYA PRADESH in the case of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, 1986 (3) SCC
156. The said aspect has been reiterated in the case of Ram Bharose Sharma Vs. State of M.P. & Ors., 2021 (4) MPLJ 90.
11. Legitimate expectation of an employee by making representation that representation would be considered in accordance with transfer policy as discussed in the recent judgment of the Apex Court in the case of Registrar General, High Court of Madhya Pradesh (supra).
12. Even otherwise Division Bench of this Court in the case of Ram Prakash Sharma (Supra) in W.A.No.759/2021 vide order dated 28.10.2021 given direction to the respondents for consideration on the point of limited period which is left in retirement (less than one year).
13. In the considered view of this Court, when petitioners are left with such little time to retire then insistence of the respondents/State to transfer the employee appears to be misplaced against public policy, guidelines by way of transfer policy and tainted with trappings of extraneous consideration because no ground has been referred for transfer except administrative reasons which ought be based upon some sound purpose and thoughtfulness.
14. Resultantly, both petitions preferred by the petitioners stand allowed and the impugned orders dated 30.03.2022 (Annexure P/1 in W.P.No.7901/2022 & W.P.No.7919/2022) are quashed. Consequently petitioners are allowed to continue at their place where they are posted 7 W.P.Nos.7901/2022 & 7919/2022 HIGH COURT OF MADHYA PRADESH at Municipal Council, Ambah, District Bhind and at Municipal Council, Akoda, District Bhind till further orders or till they attain superannuation.
15. However, the respondents are at liberty to transfer the petitioners, if any, adverse or incriminating documents or complaint are found against them so as to reach conclusion that to keep them at the said places would not be in the interest of justice. Both petitions stands allowed and disposed of in above terms. Petitioners are allowed to join at their previous respective place of posting at Ambah, District Morena and at Akoda, District Bhind respectively.
16. No order as to costs.
(Anand Pathak)
AK/- Judge
ANAND KUMAR
2022.04.08
16:02:14 +05'30'