Madhya Pradesh High Court
Ramesh Kumar Raut vs The State Of Madhya Pradesh on 30 September, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-20910-2021
The High Court Of Madhya Pradesh
WP-20910-2021
(RAMESH KUMAR RAUT Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 30-09-2021
Heard through Video Conferencing.
Shri Rajesh Prasad Dubey, learned counsel for the petitioner.
Shri Ajay Pratap Singh, Deputy Advocate General with Shri Manoj
Kushwaha, learned Panel Lawyer for the respondents/State.
Challenge being made to transfer order dated 30.08.2021 (Annexure-P-
1) passed b y respondent No.3 whereby, the services of the petitioner has been transferred from Government Primary School, Khapa Mitthekhan to Government Primary School Bhutaindhana, District Chhindwara, on administrative grounds.
T he ground for challenging the transfer order is that the same is contrary to Sections 19 and 25 of the R.T.E. Act as the teacher-student ratio has not been maintained while transferring the petitioner. Another ground is that the petitioner is deputed in election duty and he is appointed as a Booth Level Officer (BLO) by the Returning Officer and he is officiating the function of preparing the identity cards of the Election Commission of India. It is submitted that there are only three teachers amongst 41 students and after transfer of the petitioner only two teachers will be remaining; therefore, it will be very difficult for functioning of the school as well as the same will affect the academic carried of the students at large. It is submitted that the petitioner is due to retire in 1 year and 10 months; therefore, transferring the petitioner will be causing great hardships to him. It is argued that the front page of the order of the petitioner downloaded from the portal reflects that the petitioner's transfer is on his own request; whereas, the petitioner has never made any request for his transfer. In such circumstances, he has preferred a detailed representation to the respondents/authorities, the same is kept pending and not being decided till date. An innocuous prayer is made to direct the Signature Not Verified SAN respondents/authorities to consider and decide the pending representation and Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST 2 WP-20910-2021 till the decision on the representation, the petitioner may be permitted to continue at the present place of posting.
Per contra, counsel appearing for the State has opposed the prayer and submitted that the petitioner is a Government servant and a Government servant is duty bound to comply with the transfer orders. The main ground of challenge to the transfer order is that the petitioner is officiating as a BLO and is engaged in election duty. At present no elections are going on; therefore, it cannot be said that the petitioner is functioning as a BLO. He has placed reliance upon the order passed by the Division Bench of this Court in Writ Appeal No.1804/2018 (N.K. Jain Vs. State of M.P. and Others), dated 21.01.2019; wherein, considering the fact that the BLO's function in election duty starts from the date when the election notification is there. Once the elections are over and there is no notification the Government employee appointed as a BLO seized to work under the Election Commission of India. Therefore, no relief can be granted to the petitioner on the ground that he is appointed as a Booth Level Officer. The other ground which is taken that the teacher-student ratio has not been maintained and the transfer is in violation of the R.T.E. Act. The transfer order of the petitioner is a solitary order and some other incumbent/teacher must have been transferred in place of the petitioner. In such circumstances, it cannot be said to be a violation of the terms and conditions of the R.T.E. The petitioner could not demonstrate that whether anyone else is transferred and posted in place of the petitioner. The third ground that the petitioner is due to retire in 1 year and 10 months; therefore, transferring the petitioner is again contrary to the Transfer Policy. It is contended that there is rider in the Transfer Policy that the person, who is due to retire within one year should normally not been transferred and if required should be transferred and posted at some nearby place; so that he should not have face any hardship at the fag end of his service. The aforesaid ground is not available to the petitioner because petitioner is still having 1 year Signature Not Verified SAN and 10 months to retire. He has placed reliance upon the judgments passed Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST 3 WP-20910-2021 by the judgment passed by the Division Bench of this Court in the case of R.S. Chaudhary and Others v. State of M.P. and Others, ILR (2007) MP 1329 and in the case of Mridul Kumar Sharma Vs. State of M.P. and others reported in ILR (2015) MP 2556 and has argued that the only relief which can be extended to the petitioner is to direct the authorities to consider and decide the pending representation of the petitioner. It is submitted that the representation preferred by the petitioner will be considered and decided expeditiously.
Heard the learned counsel for the parties and perused the record. From the perusal of the record, it is seen that the petitioner has been transferred within the same District. The ground with respect to petitioner's functioning as a BLO, the Division Bench of this Court in the case of N.K. Jain (supra) has held as under:-
"8. To appreciate the rival submissions raised at the bar it is apposite to refer to Clause 3 and 4 of Annexure P-2 dated 16.01.2017 issued by the Secretariat of the Election Commission of India and Section 28(A) of the Representation of the People Act, 1951 which reads as under -:
3. It is further informed that all matters relating to preparation/revision of electoral rolls and conduct of elections, including recruitment and deployment of staff needed for the above purposes (who all would be on deputation to the Commission u/s 13 CC of the Representation of the People Act, 1950 and u/s 28 A of the Representation of the People Act, 1951) would fall within the purview of the Chief Electoral Officer u/s 13 A of the Representation of the People Act, 1950 and u/s 20 of the Representation of the People Act, 1951. It may be noted that Section 13CC of the Representation of the People Act, 1950 provides that the officers or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and Signature Not Verified SAN Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST 4 WP-20910-2021 staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
4. As the Chief Electoral Officer is on deputation to the Commission under the aforesaid provisions of Section 13CC and Section 28A of the Representation of the People Act, 1950 and the Representation of the People Act, 1951 respectively, the Election Commission is the disciplinary authority for the Chief Electoral Officer, and if there is any allegation about any irregularity in the performance of functions by him, such matter should be brought to the notice of the Commission for such action as deemed appropriate by it. State Government will not initiate any action on their own.
9. Section 28A of the Representation of the People Act, 1951 reads as under -:
"€œSection 28A- Returning officer, presiding officer, etc., deemed to be on deputation of Election Commission- The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission."
12. In the case in hand, transfer order was passed when no election process was in vogue and the respondent no.5 was assigned the work of preparation of electoral rolls of the ensuing State Legislative Election, but no election date nor any schedule for holding General Election to the State Legislative Assembly of Madhya Pradesh was announced. The Model Code of Conduct have come into force with effect from 06.10.2018 and will be in force till the completion of the General Election. The ban on the transfer of all officers/officials connected with the conduct of the Signature Not Verified SAN election shall be effective w.e.f. 06.10.2018. Prior to 06.10.2018 Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST 5 WP-20910-2021 respondent no.5 was on duty relating to preparation of electoral rolls and conduct of elections but no prior permission of the Election Commission was required because transfer order dated 06.09.2018 was already implemented on 12.09.2018 i.e. much prior to coming into force of Model Code of Conduct."
At present there is no notification with respect to any election, no Model Code of Conduct is in force; thus, the petitioner cannot be said to be working as a BLO under the Election Commission of India. Once there is a notification with respect to any election then the rider transferring the petitioner without the permission of the Election Commission of India is not applicable. The aforesaid ground taken by the petitioner is of no help to him in view of the judgment passed by the Division Bench of this Court. The other grounds which have been taken by the petitioner are merely personal inconveniences as well as violation of Transfer Policy is concerned, the only remedy available to the petitioner is to get a representation decided by the petitioner by the authorities as has been held by the Division Bench of this Court in the case of R.S.Chaudhary Vs. State of M.P. and others reported in ILR (2007) MP 1329 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."
The 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, Signature Not Verified SAN modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST
6 WP-20910-2021 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".
The only relief which can be extended to the petitioner is to direct the authorities to consider and decide the representation of the petitioner.
In such circumstances, the petition is disposed of with a direction to the petitioner to submit a fresh representation to the respondent no.3 and in case such a representation is filed within a period of 7 days from today, the respondent no.3 is directed to dwell upon the same and pass a self contained speaking order and communicate the outcome to the petitioner within a period of 30 days from the date of receipt of certified copy of this order.
Needless to mention that this Court has not expressed any opinion on the merits of the case.
Accordingly, the petition is disposed of.
Certified copy as per rules.
(VISHAL MISHRA) JUDGE taj Signature Not Verified SAN Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.10.05 12:03:26 IST