Madhya Pradesh High Court
Smt. Asha Bhandari vs Urban Administration And Development ... on 24 August, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.17904/2018
(Smt. Asha Bhandari Vs. State of M. P. and Others)
-1-
Indore, dated 24/08/2018
Shri Anand Singh Bahrawat, learned counsel for the petitioner.
Shri Mukesh Parwal, learned government advocate for the
respondent/State.
The petitioner before this Court has filed present petition being aggrieved by order dated 01/08/2018 transferring the petitioner from Municipal Council Barnagar to Municipal Corporation, Ujjain. 02- The petitioner's contention is that she is victim of frequent transfer. It has been stated that petitioner was posted as CMO Class "C" and was promoted to CMO Class "B" by an order dated 03/08/2015. The petitioner has further stated that she was transferred by an order dated 14/07/2017 to Barnagar and she has completed a year only at Barnagar, however, by the impugned order she has been transferred to Municipal Corporation, Ujjain. 03- The petitioner has raised various grounds before this Court and has argued that she is victim of frequent transfers. Another grounds has been raised that petitioner has been transferred at the behest of respondent No.5 who is elected President of Municipal Council, Barnagar. A ground has raised that the transfer order has been passed to accommodate the respondent No.6. 04- It has also been argued that work of the petitioner has been excellent as CMO, Barnagar and therefore, by no stretch of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -2- imagination the petitioner could have been transferred. The petitioner has also stated that she cannot be transferred without her consent in light of M. P. Municipal Service (Executive) Rules, 1973 and she cannot be posted as Deputy Commissioner in the Municipal Corporation.
05- It has also been stated that the petitioner's daughter is studying in Lower KG at Barnagar and the transfer order is contrary to the transfer policy and no approval has been granted by coordination committee.
06- A reply has been filed in the matter and the stand of the State Government is that as per Section 87 of the Municipal Council Act, 1961 the petitioner, who is a government servant, can be transferred as he is a member of State Urban Administrative Services and therefore, the petitioner has rightly been transferred. The respondents have also enclosed copy of Gazette notification 10/04/2015 and their contention is that a Chief Municipal Officer can be transferred as Deputy Commissioner keeping in view the notification dated 10/04/2015 read with M. P. Municipality Service (Executive) Rules, 1973.
07- The respondents have also stated that the working of the petitioner was not up to the mark and she has been found negligent while performing the duties as Chief Municipal Officer and large HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -3- number of complaints were received by the Collector, Ujjain, Joint Director, Urban Administration and Development Department, Ujjain and also on CM Helpline. The respondents have also stated that explanation was also sought from the petitioner and a show cause notice was issued on 24/07/2017 and thereafter, various other show cause notices were issued on 27/02/2018, 28/02/2018, 26/06/2018 and 04/05/2018.
08- The respondents have stated that as the government schemes were not being implemented properly, the public at large were suffering and therefore, the President in all fairness has lodged a protest in the matter. It has also been stated that there was no progress under the "Sambal Yogana", "Anteystri Yojana" and "Anugrah Sahayta Scheme" and as the work of the Government was suffering, the State Government keeping in view the complaints and the material available on record has transferred the petitioner from Barnagar to Ujjain, which is only at a distance of 50 KM. 09- This Court has carefully gone through the impugned transfer order. Undisputedly, the petitioner has been accommodated only at a distance of 50 KM and is raising all hue and cry. It is not a case where the petitioner has been transferred to a far off place, on the contrary petitioner has been posted at Ujjain which is certainly having better Schools than Barnagar and the petitioner's daughter HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -4- can very well be admitted at Ujjain.
10- The respondents have brought to the notice of this Court that respondent No.6 earlier at some point of time served at Barnagar for a period of four years. However, at the time the matter was argued on 08/08/2018 on behalf of the petitioner, it was brought to the notice of this Court that respondent No.6 has completed 14 years at Barnagar and in those circumstances stay was granted. This Court has carefully gone through the writ petitioner and the return and it is not a case where the respondent No.6 has been posted at Barnagar for 14 years. It is factually incorrect.
11- Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of K. S. Verma Vs. State of M. P. & Ors. reported in ILR (2011) MP 1720 and it has been stated that mere complaint cannot be a foundation for transferring an employee from one place to another that too at the behest of head of the political party.
12- This Court has carefully gone through the aforesaid judgment. In the present case, there are prima-facie serious lapses committed by the petitioner as noticed by the Collector and as noticed by the other departments and complaints were also lodged at CM Helpline and therefore, in the present case as the petitioner was even given show cause notices on account of lapses, this Court is of the opinion HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -5- that the judgment relied upon is of no help to the petitioner in the peculiar facts and circumstances of the case.
13- Reliance has also been placed upon a judgment delivered in the case of Sarvesh Kumar Awasthi Vs. U. P. Jal Nigam and Others reported in (2003) 11 SCC 740 and it has been alleged that transfer order deserves to be quashed being arbitrary. This Court keeping in view the material available against the petitioner, is of the opinion that the transfer order is not at all arbitrary order and the transfer order has been passed keeping in view the administrative exigency and therefore, the judgment is again of no help to the petitioner.
14- Reliance has also been placed upon a judgment delivered in the case of Somesh Tiwari Vs. Union of India & Ors. reported in 2009 AIR SCW 854 and the contention of the learned counsel is that transfer order which has been passed in lieu of punishment, deserves to be set aside.
15- In the present case transfer order has not been at all passed in lieu of punishment. It is true that there are certain complaints against the petitioner and the transfer order is certainly not at all punitive in nature. It has passed to ensure that the various schemes of the Government are implemented properly and public at large does not suffer and the petitioner has been accommodated only at a HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -6- distance of 50 KM, hence, the judgment again does not help to the petitioner.
16- Reliance has been placed upon a judgment delivered in the case of Rajesh Kumar Shakya Vs. State of M. P. and Another reported in 2010 (1) MPLJ 656. In the aforesaid case, the transfer order was passed to accommodate another person and it was not passed keeping in view the administrative exigency, whereas in the present case, it can never be held that the transfer order has been passed to accommodate respondent No.6. The transfer order has been passed to ensure that schemes of the Government are implemented properly. There were various lapses committed by the petitioner and show cause notices issued to the petitioner by the Department of Administration and Development are on record and therefore, in the present case, the transfer order has been passed keeping in view the administrative exigency, hence, does not warrant any interference.
17- Not only this, the apex Court in the case of Rajendra Roy Vs. Union of India reported in AIR 1993 SC 1236 has held that the transfer order should not be interfered with unless it is passed with malafide or in violation of the service rules. In the present case, there is no violation of any service rules and the transfer order has been passed keeping in view the administrative exigency. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.17904/2018 (Smt. Asha Bhandari Vs. State of M. P. and Others) -7- 18- This Court has asked a categoric question to the learned counsel for the petitioner to inform whether the husband of the petitioner is also in service at Barnagar or not. Learned counsel has informed this Court that the husband of the petitioner is not residing at Barnagar and is not in government service and therefore, it is not a case where the family has been put to great discomfort or inconvenience and the petitioner has been accommodated by the State Government at a distance of 50 KM only. The transfer order has been passed keeping in view the administrative exigencies and it is the State Government which is competent to assess the suitability of an officer in respect of his posting. 19- It is true that this does Court have the power to interfere with the transfer order of an employee, however, such interference can be done only on valid grounds. In the present case, keeping in view the distance between two places and keeping in view the other factors this Court does not find any reason to interfere with the impugned transfer order. The admission is declined and the interim order passed by this Court is vacated.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2018.08.27 13:44:48 +05'30'