Madhya Pradesh High Court
Lavkush Prasad Tiwari vs The State Of Madhya Pradesh on 21 August, 2023
Author: Nandita Dubey
Bench: Nandita Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
ON THE 21 st OF AUGUST, 2023
WRIT PETITION No. 20544 of 2023
BETWEEN:-
LAVKUSH PRASAD TIWARI S/O PARASNATH TIWARI,
AGED ABOUT 61 YEARS, OCCUPATION: GOVT SERVICE
R/O VILLAGE BARHAT, P.S. GADH, REWA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANJAY K. AGRAWAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
SECRETARY DEPARTMENT OF FARMER
WELFARE AND AGRICULTURE DEVELOPMENT
DEPARTMENT MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. M.P. STATE AGRICULTURE MARKETING BOARD
BHOPAL THROUGH ITS SECRETARY, M.P. STATE
AGRICULTURE MARKETING BOARD 26 ARERA
HILLS KISAN BHAWAN BHOAL (MADHYA
PRADESH)
3. JOINT DIRECTOR M.P. STATE AGRICULTURE
MARKETING BOARD REGIONAL OFFICE REWA
(MADHYA PRADESH)
4. SHRI SHERBAHADUR SINGH, MANDI INSPECTOR
KRISHI UPAJ MANDI SAMITI BAIKUNTHPUR
REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. PRIYANKA MISHRA - GOVT. ADVOCATE FOR
RESPONDENT/STATE AND SHRI AKHIL SINGH - ADVOCATE FOR
RESPONDENT NO.2 &3 )
This petition coming on for admission this day, th e court passed the
Signature Not Verified
following:
Signed by: GEETHA NAIR
Signing time: 8/24/2023
1:43:26 PM
2
ORDER
Petitioner has filed the instant petition, challenging two orders, both dated 10.08.2023, passed by respondents No.2 and 3 whereby the petitioner, who is working on the post of officiating Secretary, Krishi Upaj Mandi Samiti, Baikuntpur, district Rewa has been transferred to the office of Joint Director, M.P. State Agriculture Marketing Board, Regional Office, Rewa to perform the audit work on account of administrative exigency and the temporary appointment of respondent No.4, who has been given additional charge of Secretary, Krishi Upaj Mandi Samiti, Baikunthpur, till the appointment of regular secretary.
The petitioner has prayed for the following reliefs :-
(i) Hon'ble Court be pleased to issue a writ in nature of mandamus quashing the impugned order dated 10.08.2023 passed by respondent No.2, whereby the petitioner is sought to be transferred from the post of Officiating Secretary (Substantive Post - Mandi Inspector), Krishi Upaj Mandi Samiti, Baikuthpur, Rewa to the office of Joint Director, M.P. State Agriculture Marketing Board, Regional Office, Rewa to perform audit work;
(ii) Hon'ble Court be pleased to issue a writ in the nature of mandamus quashing the impugned order 10.08.2023 passed by the respondent No.3, whereby in pursuance to impugned transfer order dated 10.08.2023 passed by respondent No.2, the respondent No.4 is sought to be posted as Secretary, Krishi Upaj Mandi Samiti, Baikuntpur, Rewa. It is submitted that singular transfer order has been issued in case of petitioner without there being any administrative exigency;
(iii) Hon'ble Court be pleased to direct the respondent to allow petitioner to continue working as Officiating Secretary (Substantive Post - Mandi Inspector), Krishi Upaj Mandi Samiti, Baikuthpur, Rewa.Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM 3
(iv) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition.
According to the petitioner, these orders are contrary to the provisions of M.P. Rajya Mandi Board Sewa Viniyam, 1998 which provides that requisite qualifications for appointment on the post of Junior Auditor is graduation in Commerce and preference to be given to a person who has qualified the M.P. Subordinate Accounts Service Examination, whereas the petitioner is only a graduate on substantive post of Mandi Inspector. It is further argued that even in the terms cadre and pay scale, the post of Mandi Inspector and Auditor are different. It is urged that petitioner is not having the minimum qualification and expertise to perform audit work. He is less than one year of service remaining and due to retire on 31.05.2024 on attaining the age of superannuation. It is further submitted that despite being there no administrative exigency, petitioner has been transferred, which amounts to malice in law. Reliance is placed on the case of Somesh Tiwari Vs. UOI (2009) 2 SCC 592, wherein para 16, the Supreme Court has observed thus :-
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM 4 same is liable to be set aside being wholly illegal."
It is further stated that vide order dated 07.08.2023, the petitioner was part of enquiry team in respect of enquiry against one Shri Umashankar Agnihotri, who is senior to petitioner, therefore, the petitioner vide letter dated 07.08.2023 sought appointment of any other appropriate senior officer in his place to be part of enquiry team. It is stated that being dissatisfied with the conduct of petitioner, respondent No.2 transferred the petitioner from the post of officiating Secretary, Krishi Upaj Mandi Samiti Baikunthpur, Rewa to the office of Joint Director, M.P. State Agriculture Marketing Board, Regional Office, Rewa to perform audit work. He has further therefore, prayed that he be permitted to continue as officiating Secretary, Krishi Upaj Mandi Samiti, Baikunthpur.
Per contra, the stand of answering respondent No.4 is that respondent No.4 has been posted and joined as Incharge Secretary Krishi Upaj Mandi, Baikunthpur and petitioner has already been relieved on 10.08.2023 as evident from Annexure R-2/3.
According to Ms. Priyanka Mishra, learned Govt. Advocate, the M.P. Rajya Mandi Board Sewa Viniyam, 1998 is applicable only in the process of recruitment and not for general appointment. It is pointed out that posting order of the petitioner is totally temporary arrangement and Senior Auditor and other persons are available in the office to perform the audit work and the petitioner has been posted just to assist them. It is further stated that the petitioner has not been given the independent charge of Auditor and he is not the sole person to perform the audit work. It is stated that M.P. Rajya Mandi Board Sewa Viniyam, 1998 are applicable only if a person is recruited or promoted on the Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM 5 said post. She further submits that there is no embargo that the Mandi Inspector cannot assist in the audit work in the office of Joint Director. According to learned Govt. Advocate, the impugned order does not suffer from any illegality and it is total derogative of the employer to post the employee a suitable place looking to the need of the department. She further pointed out that petitioner was earlier holding the post of Incharge Mandi Secretary, which is also a Class-C category post and as per Schedule 6 of Viniyam, the Secretary, Class C category must have qualification of graduation in Agriculture/Commerce/Science/Management Economics, P.G. with Management or Administrative experience of minimum two years, but the petitioner only holds graduation from Arts. It is stated that when he was holding the post of Incharge Mandi Secretary, he never raised any objection that he did not possess the requisite qualification, simply because he has been now posted at the regional office, all these objections have been raised. She further pointed out that the petitioner is going to superannuate in May 2024 and looking to the age of petitioner and his remaining period of service, he has been posted in the office to relax him from the hectic duties of field work. It is further pointed out that the petitioner has been transferred to not a far off place but from Baikunthpur to regional office Mandi Board, Rewa which is just 22 kms away from his earlier place of posting. She further submitted that the transfer order of the petitioner is totally on administrative ground and the grounds taken in the petition against the impugned transfer order that it is maliciously motivated is totally false.
I have heard the learned counsel for the parties and perused the record. Annexure P-3 dated 07.08.2023 reveals that the petitioner was appointed as Team Incharge for looking into the complaints of irregularity and Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM 6 embezzlement done by Shri Umashankar Agnihotri during his tenure as incharge Secretary Krishi Upaj Mandi, Sidhi. This appointment was only refused by the petitioner for the reason that (i) Umashankar Agnihotri is senior to him; (ii) He is working as officiating Secretary of Krishi Upaj Mandi and Mandi Work will be affected if he is appointed as Team Incharge and not for the reason that he does not have the requisite qualification of a Commerce graduate or no experience of auditing work.
Petitioner has also brought on record the copy of Enquiry report dated 02.06.2022, which was instituted against Umashankar Agnihotri by way of I.A. No.12381/2023 for just and proper adjudication of the instant case. However, enquiry against Umashankar Agnihotri is not the subject matter of this petition, hence, the same cannot be considered and hereby rejected.
Admittedly petitioner is holding the substantive post of Mandi Inspector. He has earlier given the charge of Secretary, Krishi Upaj Mandi Samiti, Baikunthpur and by the impugned order he has been posted at the regional office of Agriculture Marketing Board, but no independent charge of Auditor has been given to him. Moreover, the impugned order has not caused any financial loss or prejudice to the petitioner. Hence, the grounds raised by the petitioner has no tenability nor is he able to prove any malice in his transfer order.
Transfer is an incidence of service and can only be interfered with if runs contrary to any statutory provision or changed service conditions to his detriment or proved to be malafide, which is not the case here.
Furthermore, petitioner has no legal statutory right to continue to hold the current charge. It is settled position of law that no one has an inherent legal or Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM 7 vested right to ask for a particular duty or charge and the State Government is the best judge to decide the question regarding posting of an officer.
There is no merit in the petition and is accordingly dismissed.
(NANDITA DUBEY) JUDGE gn Signature Not Verified Signed by: GEETHA NAIR Signing time: 8/24/2023 1:43:26 PM