Madhya Pradesh High Court
Shivraj Singh Tomar vs The State Of Madhya Pradesh on 17 March, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
THE HIGH COURT OF MADHYA PRADESH
RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others)
GWALIOR; dated 17/03/2020.
Shri D.P.Singh, Advocate, for the petitioner.
Shri H.D.Mishra, learned GA for the respondents/state.
Per Hon'ble Vishal Mishra.J. Present review petition has been filed seeking review of the order dated 19.2.2020 passed in R.P.No.1825 of 2019 (Shivraj Singh Tomar Vs. State of M.P. And others) whereby, review petition was disposed of clarifying the fact that earlier transfer order of petitioner dated 26.2.2019 has not been interfered with.
It is argued that initially, a writ petition was preferred by one Mukesh Tiwari being W.P.No.16258 of 2019 which was considered and disposed of by Hon. Writ court by its order dated 25.11.2019 and the transfer order dated 5.7.2019 was quashed and Mukesh Tiwari was directed to work at his present place of posting. It is submitted that earlier a writ petition was filed being W.P.No.4755 of 2019 challenging the order dated 26.2.2019 by which, petitioner has been transferred from Patwari Chhonda Morena to Majra Tahsil Joura district Morena. Aforesaid writ petition was finally heard and dismissed by this court vide order dated 8.3.2019 against which, a writ appeal was preferred being W.P.No.488 of 2019. Writ appeal was disposed of vide order dated 28.8.2019 observing that "we are therefore, not inclined to cause any indulgence". Thereafter, a review petition was preferred which was registered as R.P.No.1284 of 2019. 2
THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) The same was disposed of modifying the order dated 28.8.2019 and the observation with respect to the petitioner of having approached the politician seeking recommendation for transfer is recalled. The petitioner again filed a review petition on the ground that once the order passed in Writ appeal No.488 of 2019 was modified in review petition then transfer order of petition ought to have been quashed and writ appeal should have been allowed. It was submitted that even after recalling of the observations of the Division Bench, no specific order with respect to posting and working of the petitioner was passed. Therefore, review petition was filed seeking clarification of the aforesaid order which was registered as Review Petition No.1825 of 2019. Aforesaid review petition came up for hearing on 19.2.2020 and this court has passed following order :
"4. The prayer has been opposed learned Government Advocate who submitted that when initial order of transfer dated 26/2/2019 has not been interfered with, no clarification is required.
5. Heard, learned counsel for the parties.
6. From the above, it is clear that the transfer order dated 26/2/2019 is intact and it has been affirmed in W.P. No.4755/2019 and W.A. No.488/2019. As such, there is no need of any further clarification. Petitioner ought to have joined at the transferred place of posting as mentioned in order dated 26/2/2019".
Now again, review petition has been filed on the similar ground on which earlier review petition was filed, stating that still there is no order with respect to the posting and working of the petitioner. Counsel for the petitioner again argued that once observation made in writ appeal has been recalled in subsequent writ petition then writ appeal should have been allowed by the Division Bench. 3
THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) Heard learned counsel for the parties and perused the record. From perusal of record, it is seen that initially, a writ petition was filed by petitioner being W.P.No.4755 of 2019 wherein, challenge was made to the transfer order dated 26.2.2019 by which, petitioner has been transferred from Patwari Chhonda Morena to Majra Tahsil Joura district Morena on administrative exigencies wherein, the writ court was pleased to dismiss the writ petition vide order dated 8.3.2019 against which, a writ appeal was preferred being W.A.No.488 of 2019. Writ appellate court also dismissed the writ appeal vide order dated 28.8.2019 observing that "we are therefore, not inclined to cause any indulgence in the order passed by the writ court". There were certain other observations made by the coordinate Bench of this court. Thereafter, a review petition was preferred seeking review of the order dated 28.8.2019 passed in W.A.No.488 of 2019 being Review Petition No.1284 of 2019. The same was finally disposed of vide order dated 24.9.2019 observing as under :
"In view whereof, we deem it appropriate to modify the order dated 28.8.2019. the observation in respect of the petitioner of having approached the politician seeking recommendation for transfer is recalled".
Yet again, a review petition was preferred being R.P.No.1825 of 2019 seeking review of the order dated 24.9.2019 passed in R.P.No.1284 of 2019 on the ground that while entertaining the review petition, observations made in the order passed in the writ appeal were wiped out then the writ appeal should have been allowed by the 4 THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) coordinate Bench. The review petition was also disposed of by this court with the following observation that :
"6. From the above, it is clear that the transfer order dated 26/2/2019 is intact and it has been affirmed in W.P. No.4755/2019 and W.A. No.488/2019. As such, there is no need of any further clarification. Petitioner ought to have joined at the transferred place of posting as mentioned in order dated 26/2/2019".
Now, again, this review petition has been preferred on the similar ground which have already been considered by this court in the earlier round of litigation. It is not worthy to mention here that the petitioner had challenged transfer order in the original writ petition. The same was dismissed. The writ appeal preferred against the same, was also dismissed observing that no interference in the order passed by writ court is warranted. Despite of the same, the petitioner has not chosen to comply with the transfer order and by one way or the other on the hyper-technical grounds, he is trying to file one after another review petitions, which is not warranted. In transfer cases, the law is well settled by Hon. Apex Court in the case of R.S.Chaudhary Vs. State of M.P I.L.R (2007) M.P. 1329 holding as under :
"Transfer Policy formulated by State is not enforceable as employee does not have a right and courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines".
Further, relying upon the judgment rendered by Hon'ble Supreme Court in the case of Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, reported in (1989) 2 5 THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) SCC 602, Hon'ble Division Bench of this Court in Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R (2015) MP 2556, has held as under :
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other".
This court has already given clarification in the earlier review petitions holding that the transfer order of the petitioner was not interfered with. In such circumstances, the petitioner was bound to comply with the transfer order but same has not been done.
Scope of filing review is very limited as the same is just to correct the error which are apparent on the face of record. In S. Bagirathi Ammal Vs. Palani Roman Catholic Mission reported in (2009) 10 SCC 464, the Hon'ble Apex Court has held as under :
"An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials 6 THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. With this background, let us analyze the impugned judgment of the High Court and find out whether it satisfy any of the tests formulated above".
Further, in State of West Bengal and Others Vs. Kamal Sengupta and Another reported in (2008) 8 SCC 612, the Hon'ble Apex Court has held as under :
"The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC."
Furthermore, a five-Judge Bench of the Federal Court in Hari Sankar Pal Vs. Anath Nath Mitter reported in 1949 FCR 36 while considering the question whether the Calcutta High Court was justified in not granting relief to non-appearing party, whose position was similar to that of the successful appellant, has held as under :
"That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code."
Considering the aforesaid, this review petition is sans merit and deserves to be dismissed with cost. Hence, this review petition is dismissed with cost of Rs.5,000/- (Five thousand only) to be deposited 7 THE HIGH COURT OF MADHYA PRADESH RP.447.2020.
(Shivraj Singh Tomar Vs. State of M.P. and Others) with the Legal Aid Service, Gwalior within a period of fifteen days from the date of this order.
If the petitioner fails to comply with the transfer order then the authorities are free to take action in pursuance to the direction given by Division Bench of this court in the case of Mridul Kumar (Supra).
If the cost imposed by this court is not deposited within the aforesaid period then the case be listed under the heading of `directions' in the week commencing 14.4.2020.
(S.A.Dharmadhikari) (Vishal Mishra)
Judge Judge
Rks.