Madhya Pradesh High Court
Santosh Singh Thakur vs The State Of Madhya Pradesh on 7 September, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 7th OF SEPTEMBER, 2022
WRIT PETITION No. 12197 of 2021
BETWEEN:-
SANTOSH SINGH THAKUR S/O SHRI GP
THAKUR, AGED ABOUT 53 YEARS,
OCCUPATION: INCHARGE EXCUTIVE
ENGINEER R/O OFFICE OF P.W.D. DIVISION
DINDORI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT KHATRI, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY PUBLIC WORKS
DEPARTMENT MANTRALAYA VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. DEPUTY SECRETARY PUBLIC WORKS
DEPARTM ENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
3. ENGINEER IN CHIEF PUBLIC WORKS
D EPARTM EN T NIRMAN BHAWAN BHOPAL
(MADHYA PRADESH)
4. MS DHURVE S/O SHRI SAKRU SINGH
OCCUPATION: W/A EXCUTIVE ENGINEER IN
CHARGE POSTED AT DINDORI OFFICE OF PWD
DIVISION (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMAR PANDEY, PANEL LAYWER
SHRI R.K. VERMA, SENIOR ADVOCATE WITH SHRI RAHUL
DESHMUKH, ADVOCATE )
WRIT PETITION No. 15384 of 2021
BETWEEN:-
SANTOSH SINGH THAKUR S/O SHRI G.P.
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 9/13/2022
12:28:55 PM
2
THAKUR, AGED ABOUT 53 YEARS,
OCCUPATION: W/A INCHARGE EXECUTIVE
ENGINEER IN CHARGE POSTED AT DINDORI
R/O OFFICE OF P.W.D. DIVISION DINDORI M.P.
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT KHATRI, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SERETARY PUBLIC WWORKS
DEPARTMENT MANTRALAYA VALLABH
BHAWAN, BHOPAL M.P. (MADHYA PRADESH)
2. DEPUTY SECRETARY PUBLIC WORKS
D EPARTM EN T VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
3. ENGINEER IN CHIEF PUBLIC WORKS
D EPARTM EN T NIRMAN BHAWAN BHOPAL
(MADHYA PRADESH)
4. MS DHURVE S/O SAKRU SINGH OCCUPATION:
EXECUTIVE ENGINEER IN CHARGE POSTED AT
DINDORI R/O OFFICE OF P.W.D. DIVISION
DINDORI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMAR PANDEY, PANEL LAYWER
SHRI R.K. VERMA, SENIOR ADVOCATE WITH SHRI RAHUL
DESHMUKH, ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
Regard being had to the commonality of controversy, both the writ petitions were heard together and are being disposed of by a common order. For the shake of convenience, the facts from W.P. No.15384/2021 are taken note of.
2. Challenge in this petition is to order dated 9-8-2021 contained in Annexure-P/1 and also the impugned order of transfer dated 18-2-2021 by Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM 3 which the petitioner herein, was transferred from District, Guna to District Dindori and the respondent No.4 was transferred from Dindori to Seoni.
3. The contents of petition reflect that earlier connected writ petition being W.P. No.12197/2021 was filed by petitioner with a prayer that pursuant to transfer order dated 18-02-2021 petitioner be permitted to join, as the petitioner having been relieved from District Guna, was not being allowed to discharge his duties despite joining, inasmuch as the respondent No.4 has not handed over the charge.
4. In that writ petition this Court passed an order interlocutory order on 15-7-2021 and while issuing notice to respondents as an ad interim measure, directed that the authority may handover the charge of the post of In-charge Executive Engineer, Dindori to the petitioner, as he had already joined and representation of respondent No.4, despite order dated 25-02-2021 in W.P. No.4474/2021 is pending consideration, therefore, the petitioner herein, cannot be made to suffer on account of lapse at the behest of employer.
5. This Court further observed that the authority shall also consider and decide the representation of the respondent No.4 to clear the chaos of posting of two persons against one post. Thereafter, since, there was an order of this Court in W.P. No.4474/2021, dated 25-02-2021 filed by respondent No.4, to consider and decide his representation, the respondents vide order dated 9-8-2021, while taking into consideration the directives of this Court in W.P. No.4474/2021 and also in view of interlocutory order of this Court dated 15-7-2021 passed in W.P. No.12197/2021, has cancelled the order of transfer dated 18-02-2021, so far the same relates to the petitioner and respondent No.4.
6. Submission of learned counsel for petitioner is that the order impugned order reflects that respondent No.4 was extended opportunity of Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM 4 personal hearing through video conferencing. Whereas since, the order impugned has direct nexus with the petitioner's transfer also, therefore, he should also have been extended an opportunity of hearing.
7. Learned counsel for petitioner further submits that in W.P. No.12197/2021 which was filed by present petitioner, vide interlocutory order dated 15-07-2021 this Court had directed the authorities to consider representation of the respondent No.4 to clear the chaos as regards posting of two persons against one post.
8. Thus, submits that if respondent proceeded to cancel the impugned order of transfer then an opportunity of hearing ought to have been afforded to the petitioner before passing the impugned order. Therefore, submits that the impugned order deserves to be quashed.
9. Per contra, learned counsel for the State submits that the representation moved by the respondent No.4 was taken into consideration in terms of order passed by this Court in W.P. No.4474/2021 and authority upon consideration of the representation cancelled the order of transfer on 18-02- 2021. Therefore, as a consequence thereof, petitioner's transfer also from Guna to Dindori stood cancelled.
10. Learned counsel for State also submits that the authorities have duly complied with the order passed by this Court and since the petitioner as well as respondent No.4 were at loggershead, therefore, the impugned order was passed by which, both petitioner and the respondent No.4 have been relegated at their erstwhile postings. Thus, submits that no interference is called for in the present writ petitions.
11. Learned counsel for respondent No.4 submits that before Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM 5 passing of order dated 9-8-2021 contained in Annexure-P/1, an other order dated 25-6-2021 was passed by which respondent No.4 was attached in the office of Chief Engineer, Public Works Department (PWD), Circle Jabalpur.
12. Learned counsel also submits that the Chief Engineer, PWD, Bhopal while passing the order dated 25-6-2021, had referred the matter to the Chief Secretary, Public Works Department, to take a final decision. Thus, submits that a stopgap arrangement, respondent No.4 has been attached at Jabalpur.
13. Learned counsel further submits that against the petitioner a case is pending which contains allegation of defalcation of colossal amount by the petitioner and, therefore, the order impugned has been passed while taking into consideration Clause 40 of the Transfer Policy. Learned counsel submits that though Clause 40 of the Transfer Policy has not been referred in the order impugned by authorities, yet in view of Clause 40 of the Transfer Policy, petitioner cannot be posted against the post at District Dindori.
14. Regard being had to the rival contentions raised at the Bar, this Court is of the considered view that when the petitioner herein filed earlier writ petition (W.P. No.12197/2021), a Co-ordinate Bench of this Court issued specific directions to the respondents to consider and decide representation of respondent No.4 to clear the chaos, inasmuch as there was claim as regards single post by two persons. Moreover, this Court already in W.P. No.4474/2021 vide order dated 25-02-2021, had directed respondent No.2 to consider and decide the representation of respondent No.4 (petitioner therein) within a period of 60 days.
15. Thus, in the considered view of this Court, the authorities were well aware that the subject-matter in issue was pending before this Court in Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM 6 which both parties were agitating their rival claims. If the order impugned is perused the same would reflect that respondent No.4 herein was extended an opportunity of hearing. However, so far as the present petitioner is concerned, the order impugned does not reflect that whether any opportunity of hearing was extended to petitioner or not.
16. Moreover, the operative paragraph of the impugned order further reveals that no reasons have been assigned. On the contrary, the employer only account of the fact that both the employees, i.e. the petitioner and respondent No.4, are willing to continue at Dindori, has taken recourse to an unusual method of cancelling the transfer order itself.
17. The order of transfer dated 18-02-2021 apparently issued in administrative exigency, could not have been cancelled in such a casual manner, merely in view of the fact that the petitioner and respondent No.4 were willing to discharge their duties at Dindori only. It is the employer who is obliged to take a decision while keeping in view the administrative exigency. Hence, decision ought to have been taken while considering the administrative exigency irrespective of inconvenience expressed by employees.
18. Thus, the order impugned is unsustainable and therefore, deserves to be and is accordingly quashed, and the matter is remitted back to respondent No.1 to extend opportunity of hearing to the present petitioner as well respondent No.4 and then pass a well reasoned and speaking order within a period of 30 days from today.
19. It is expected that the authorities shall take into consideration the stand of rival parties and then pass an order assigning cogent reasons. It is further expected that the authorities shall also take into consideration, the Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM 7 administrative exigency, as it is the employer, who has to take a decision as regards transfer of an employee to a particular place. Till decision, parties shall maintain status-quo as it exists today.
20. With the aforesaid observation and direction, the writ petitions stand disposed of.
(MANINDER S BHATTI) JUDGE ac Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 9/13/2022 12:28:55 PM