Madhya Pradesh High Court
Sheikh Mohsin vs The State Of Madhya Pradesh on 25 July, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 17705/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABAL PUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 25th OF JULY, 2023
WRIT PETITION No. 17705 of 2023
BETWEEN:-
SHEIKH MOHSIN S/O SHRI SHEIKH HASAN,
AGED ABOUT 50 YEARS, OCCUPATION:
CONTRACT SUB ENGINEER IN JANPAD
PANCHAYAT DAMOH, R/O WARD NO. 5, NEAR
IKRAM MISTRI, GADHI MOHALLA, DAMOH
KHAS, DISTRICT DAMOH (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRASHANT DUBEY- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS SECRETARY PANCHAYAT
AND RURAL DEVELOPMENT
DEPARTMENT VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. THE MADHYA PRADESH RAJYA ROJGAR
GUARANTEE COUNCIL (A REGISTERED
SOCIETY UNDER THE PANCHAYAT AND
RURAL DEVELOPMENT DEPARTMENT)
THROUGH ITS COMMISISONER ARMADA
BHAWAN 2ND FLOOR C WINT 59,
DISTRICT BHOPAL (MADHYA PRADESH)
3. THE EXECUTIVE ENGINEER, THE
MADHYA PRADESH RAJYA ROJGAR
GURANTEE COUNCIL (A REGISTERED
SOCIETY UNDER THE PANCHAYAT AND
RURAL DEVELOPMENT DEPARTMENT)
NARMADA BHAWAN 2ND FLOOR C WING
59, DISTRICT BHOPAL (MADHYA
PRADESH)
2 W.P. No. 17705/2023
4. THE DISTRICT COLLECTOR CUM
DISTRICT PROGRAME COORDINATOR,
ZILA PANCHAYAT DAMOH (MAHATMA
GANDHI RASHTRIYA ROJGAR
GUARANTEE SCHEME MADHYA PRADESH
DISTRICT DAMOH (MADHYA PRADESH)
5. THE ZILA PANCHAYAT DAMOH THROUGH
ITS CHIEF EXECUTIVE OFFICER DISTRICT
DAMOH (MADHYA PRADESH)
6. SHRI R K GOSWAMI OCCUPATION:
CONTRACT SUB ENGINEER IN SECTOR
LUHARI, JANPAD PANCHAYT PATERA,
DISTRICT DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR- GOVERNMENT ADVOCATE)
---------------------------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed against the order dated 07.07.2023 passed by the Chief Executive Officer, Zila Panchayat, Damoh by which the petitioner has been transferred from Sector Imaliyaghat, Janpad Panchayat Damoh to Sector Madhiyado, Janpad Panchayat Hatta.
2. It is submitted by the counsel for the petitioner that by order dated 10.01.2008, the petitioner was appointed as Contractual Sub-Engineer at Janpad Panchayat Damoh. Thereafter, by order dated 31.08.2021, he was transferred from Imaliyaghat, Janpad Panchayat Damoh to Batiyagarh Sector, Janpad Panchayat, Batiyagarh. However, by order 3 W.P. No. 17705/2023 dated 09.09.2021, the transfer order was cancelled on the ground that the post of a contractual employee is not a transferable post. Thus, it is submitted that alghough the petitioner has completed more than 15 years of stay at Imaliyaghat, Janpad Panchayt, Damoh but he is holding non transferable post.
3. Per contra, the counsel for the respondent/State submitted that there is no absolute bar on the transfer of a contractual employee. The only rider is that a contractual employee can be transferred under special circumstances. The petitioner has not alleged any malafides against anybody and nobody has been made as a party in the personal capacity. Therefore, in absence of any malafide it has to be presumed that the order of transfer has been issued under the special circumstances.
4. Considered the submissions made by the counsel for the parties.
5. This Court in the case of Shabana Begum Vs. State of M.P. and others by order 05.02.2021 passed in W.P. No.1027/2021 has held as under:
"Heard the learned counsel for the parties.
Clause 3.3 of Circular dated 24/3/2020 (Annexure P-5) reads as under :-
**fe'ku varxZr ftyk ifj;kstuk izca/kd dks NksM+dj ftys ds leLr lafonk veys ds lkFk okf"kZd lafonk vuqca/k rFkk LFkku ifjorZu gksus dh fLFkfr esa uohu LFkku gsrq uohu lafonk vuqca/k dk fu"iknu lacaf/kr ftyk dysDVj ¼ftyk fe'ku lapkyd½ }kjk fd;k tkosxkA ftys ds Hkhrj LFkku ifjorZu gksus dh fLFkfr esa iqu% u;k vuqca/k vko';d ugha gksxkA** Clause 9.1 of Circular dated 24/3/2020 reads as under:-4 W.P. No. 17705/2023
^^lafonk veys dh fu;qfDRk LFkku fo'ks"k ,oa dk;Z fo'ks"k ds fy;s gksus ds dkj.k LFkkukarj.k dk izko/kku ugha gSA iz'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 ifjorZu LFkku gsrq uohu vuqca/k fd;s tkus dh Lohd`fr nh tk ldrh gSA uohu vuqca/k dh vof/k dk;Z ij mifLFkr fnukad ls ml foRrh; o"kZ dh 31 ekpZ rd gh gksxhA** 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 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 circumstances. The only requirement is that since the agreement is always executed for a particular 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 5 W.P. No. 17705/2023 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."
6. Thus, a contractual employee can be transferred. However, the only rider is that he will be required to execute a fresh agreement at his transferred place.
7. Furthermore, the petitioner has already spent 15 long years of stay at Janpad Panchayat Damoh. No malafides have been alleged. So far as the personal difficulty of the employee is concerned, this Court in exercise of power under Article 226 of the Constitution of India cannot consider the same and it is for the employer to consider the personal difficulties.
8. At this stage, it is submitted by the counsel for the petitioner that the representation made by the petitioner is pending, therefore, the same may be directed to be decided and in the meanwhile, the order of transfer may be kept in abeyance.
9. A Division Bench of the Court in the case of Mridul Kumar Sharma Vs. State of M.P. reported in ILR 2015 MP 2556 has held that mere filing of a representation does not give rise to a vested right and it is the prerogative of the employer to stay or not to stay the transfer order during the pendency of the representation. In case if the transfer order is not stayed by the employer then it has to be executed by the employee. Accordingly, it was held that in absence of any vested right, the High Court should not pass an interim order thereby staying the execution of transfer.
6 W.P. No. 17705/202310. Since the petitioner has not joined at the transferred place, therefore, at present, no direction can be issued to the respondents to decide the representation. However, it is made clear that the petitioner after submitting his joining may file an application for urgent hearing of his representation and if that is filed then the respondents shall decide the same strictly in accordance with law without getting influenced or prejudiced by this order.
11. With aforesaid observation, the petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.07.26 14:23:35 +05'30'