Madhya Pradesh High Court
Rajendra Kumar Khare vs The State Of Madhya Pradesh on 19 September, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.22961/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF SEPTEMBER, 2023
WRIT PETITION No.22961 of 2023
BETWEEN:-
RAJENDRA KUMAR KHARE S/O SHRI
BHAWANIDAS KHARE, AGED ABOUT 52 YEARS,
OCCUPATION: PRIMARY TEACHER POSTED-
GOVT. PRIMARY SCHOOL DUMERAKHIRAK
PRATHAVIPUR, DISTRICT NIWARI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI JITENDRA ARYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH SCHOOL
EDUCATION DEPARTMENT THROUGH
SECRETARY, VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. THE SCHOOL EDUCATION DEPARTMENT
THROUGH COMMISSIONER DIRECTORATE
PUBLIC INSTRUCTION GAUTAM NAGAR
BHOPAL (MADHYA PRADESH)
3. DISTRICT EDUCATION OFFICER NIWARI
DISTRICT NIWADI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed against the order dated 31/08/2023 passed by Commissioner, Public Instructions, Madhya Pradesh in file No.Transfer/2023/20- Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 20-Sep-23 4:49:16 PM 2 W.P. No.22961/2023 01/139340, by which petitioner has been transferred from Government Primary School Dumera Khirak Prathvipur, District Niwari to Government Primary School Astari, District Niwari.
2. It is submitted that as per transfer policy, transfer order should have been issued up to 10/08/2023 but transfer order has been issued on 31/08/2023 which clearly shows that transfer order has been issued during the ban period. Under Right of Children to Free and Compulsory Education Act, 2009 respondents are required to maintain Pupil-Teacher Ratio (PTR) and transfer of petitioner would disturb PTR. Petitioner is a visually impaired person suffering from 40% of disability, therefore transfer of petitioner to a place which is approximately 35 Km away is bad in law. However, it is fairly conceded that petitioner has already completed more than three years of his stay at the present place of posting.
3. Per contra, petition is vehemently opposed by counsel for the State. It is submitted that transfer is an exigency of service and no one can claim that he should be posted at a particular place.
4. Heard learned counsel for the parties.
5. It is well established principle of law that transfer policy is an executive instruction and is not enforceable by law. Although in Writ Petition, petitioner has not raised a ground but in representation he has claimed that his wife is also working in Government Primary Girls School Jer Prathvipur, District Niwari. However, counsel for petitioner could not point out any absolute bar which prohibits transfer of an employee whose spouse is also posted in the same district/ headquarters. Petitioner has been transferred to a place which is only 35 Km away from the present place of posting. Petitioner has not alleged any Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 20-Sep-23 4:49:16 PM 3 W.P. No.22961/2023 malafides against any Authority and no violation of any statutory provision of law has been alleged. Transfer is an exigency of service and no one can claim that he should be posted at a particular place.
6. At this stage, it is submitted by counsel for petitioner that petitioner has made a representation which has not been decided so far, therefore respondents may be directed to decide the same and till then transfer order of petitioner may be kept in abeyance.
7. Considered the submissions made by counsel for petitioner.
8. 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.
9. Since petitioner has not joined at the transferred place, therefore, at present, no direction can be issued to respondents to decide the representation. However, it is made clear that petitioner after submitting his joining may file an application for urgent hearing of his representation and if that is filed then respondents shall decide the same strictly in accordance with law without getting influenced or prejudiced by this order.
10. With aforesaid observation, petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE Shubhankar Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 20-Sep-23 4:49:16 PM