Madhya Pradesh High Court
Abdul Rajjak vs Department Of Technical Education And ... on 15 November, 2017
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Abdul Rajjak vs. State of M.P. and anr.
Writ Appeal No.1050 of 2017
Indore, Dated:- 15/11/2017
Shri Manoj Manav, learned Counsel for the appellant.
Shri Rohit Kumar Mangal, learned Government
Advocate for the respondents/State, on advance notice.
Heard on the question of admission.
2. This intra Court appeal has been filed against the order dated 11.10.2017 passed in W.P. No.16072 of 2017 by which learned Writ Court upheld the order of transfer dated 10.7.2017 whereby the appellant has been transferred from Khilchipur to Hoshangabad and dismissed the writ petition.
3. The facts of the case are that appellant was earlier transferred by order dated 15.6.2015 from Khilchipur to Bhind and by order dated 7.9.2016 from Bhind to Khilchipur and thereafter, on 10.7.2017 he has been transferred from Khilchipur to Hoshangabad. The contention of appellant is that within a short period he has again been transferred. The appellant is office bearer of the Employees Association, therefore, transfer is in violation of clause 8.19 of the transfer policy.
4. Learned writ Court considering the arguments of learned Counsel for the petitioner dismissed the writ petition by holding that the order of transfer has neither been passed in violation of any statutory provision nor does it suffer from malice. In respect of office bearer of Employees Association the learned writ Court has held that as per Clause 8.19 of the transfer policy the benefit will be 2 Abdul Rajjak vs. State of M.P. and anr.
available for only two tenures in the entire service period and the recognized association was required to send the list of office bearers along with their tenure to the concerned Collector. Annexure P/6 filed by the appellant does not disclose the tenure nor in the writ appeal it has been disclosed that the appellant under the said clause 8.19 had not obtained the protection earlier for 2 tenures in his service period and, therefore, was of the opinion that on the basis of clause 8.19 of the transfer policy no interference in the impugned order of transfer is required.
5. It is well settled that an order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
6. This is second round of litigation. The review petition filed against the aforesaid order dated 11.10.2017 has been dismissed on the ground that there is no error apparent on the face of the record. Relevant part of the order dated 1.11.2017 passed in R. P. No.1118 of 2017 reads as under:
"Having heard the learned counsel for the parties and on perusal of the record, it is noticed that by the order dated 11.10.2017 passed in W.P. No.16072/2017 the petitioner's writ petition challenging the order of transfer dated 10.7.2017 as also the order dated 13.9.2017 rejecting the petitioner's representation, has been dismissed. The 3 Abdul Rajjak vs. State of M.P. and anr.
said order reveals that the petitioner had challenged the impugned orders therein on various grounds and each of the ground raised by the petitioner was examined by this Court and since no case for interference was made out, hence the writ petition was dismissed. In respect of the argument relating to the office bearer of the employees association, it was noted that the recognized association was required to send the list of office bearers along with their tenure to the concerned Collector, as required by the transfer policy. Along with the review petition also no such list has been filed.
Having regard to the entire circumstances of the case, I am of the opinion that there is no error apparent on the face of the record, hence no case for review is made out. The review petition is accordingly dismissed."
7. Learned Counsel for the appellant has drawn my attention to the order dated 17.12.2013 passed in Writ Appeal No.490 of 2013 and submitted that in the aforesaid matter the employee was transferred purely because of complaint against him. The Division Bench has held that the transfer order has been passed without giving any opportunity to explain or show-cause; that is impermissible in law and, therefore, the order was set aside.
8. He has also drawn my attention to the law laid down by the Apex Court in the case of Somesh Tiwari vs. Union of India and others reported in (2009) 1 SCC (L & S) 411 and submitted that the employer is entitled to pass an order of transfer in administrative exigencies. They cannot pass an order of transfer by way of or in lieu of punishment. In the case in hand no material is on record to prove that the order of transfer has been passed by way of punishment. Thus, the aforesaid decision is distinguishable 4 Abdul Rajjak vs. State of M.P. and anr.
on the facts of the present case.
9. In the present case after transfer order dated 10.7.2017 a detailed representation was made and the same was dismissed by passing a reasoned order on 13.9.2017. The learned writ Court also considered each and every point raised by the appellant and dismissed the writ petition on 11.10.2017. The appellant is not satisfied with the aforesaid order and filed a review petition, which was also dismissed on 1.11.2017.
10. On due consideration aforesaid, we are of the view that the transfer order is not passed in violation of any statute. No case to interfere with the aforesaid order passed in writ petition, as prayed is made out. Accordingly, W.A. No.1050 of 2017 is dismissed.
(P. K. Jaiswal) (Virender Singh)
Judge Judge
pp/
Pankaj Pandey
2017.11.16 08:43:38 -08'00'