Madhya Pradesh High Court
O.P.Sharma vs M.P. State Agriculture Marketing Board on 6 November, 2017
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(D. B.: Hon'ble Mr. P.K. Jaiswal & Hon'ble Mr. Virender Singh J.J.)
W.A. No.958/2017 & W.A. No.959/2017
O.P. Sharma
V/s
M.P. State Agriculture Marketing Board, Bhopal & Ors.
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Shri A.K. Sethi, learned Senior Counsel withn Shri Harish Joshi,
learned counsel for the appellant.
Shri Kamal Airen, learned counsel for the respondent Nos.1 and 2.
Shri Piyush Mathur, learned Senior Counsel with Shri G.S.
Patwardhan, learned counsel for the respondent No.3.
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ORDER
( Passed on this 6th day of November, 2017) Per P.K. Jaiswal, J.
This order shall govern the disposal of W.A. No.958/2017 and W.A. No.959/2017 respectively.
2. The respondent No.3 - Mansingh Muniya( Petitioner before the writ court) by filing W.P. No.4316/2017 has challenged the transfer order dated 11/07/2017 whereby the petitioner, who is working as Secretary(Super A Category) has been transferred from Krishi Upaj Mandi, Mandsaur to Krishi Upaj Mandi, Katni as also the even date transfer order by which the respondent No.3 - O.P. Sharma(appellant herein both the appeals) was transferred from Krishi Upaj mandi Samiti, Ujjain to Krishi Upaj Mandi Samiti, Mandsaur.
3. Writ Petition No.5958/2017 has bee filed by the appellant - O.P. Sharma against the order dated 20/07/2017 by which he has been transferred to Krishi Upaj Mandi, Shajapur.
4. In W.P. No.4316/2017 on 18/07/2017, an interim order was passed in favour of respondent No.1staying the transfer order from Kirshin Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni. While granting stay in favour of respondent No.3 - Mansingh Muniya, the learned writ court also granted liberty to respondent No.1 and No.2 that they shall be free for some alternative arrangement for present appellant - O.P. Sharma(respondent No. 3 in W.P. No.4316/2017). Appellant O.P. Sharma partly aggrieved by the Interim Order dated 18/07/2017, filed a writ appeal bearing W.A. No.403/2017. The Division Bench disposed of the writ petition with a direction to the appellant therein to file an application for vacating /modification of stay and directed the parties to maintain status quo, but prior to order dated 25/07/2017, an order of transfer of appellant O.P. Sharma from Krishi Upaj Mandi, Mandsaur to Krishi Upaj Mandi, Shajapur has been passed.
5. Appellant challenged the order of transfer dated 20/07/2017 by filing separate W.P. No.5958/2017.
6. Both the petitions were analogously heard. The learned writ court quashed the transfer order dated 11/07/2017 of respondent No.3 - Mansingh Muniya by allowing W.P. No.4316/2017 by which he was transferred from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni and dismissed the writ petition of appellant O.P. Sharma filed vide W.P. No.5958/2017 on the ground that no case for interference on transfer order is made out. The appellant O.P. Sharma aggrieved by the impugned order, whereby petition of respondent No.3 has been allowed and his writ petition was dismissed, filed both these writ appeal.
7. Learned Senior Counsel for the appellant has drawn our attention to both the transfer order dated 11/07/2017 by which the appellant has been transferred from Krishi Upaj Mandi Samiti, Ujjain to Krishi Upaj Mandi Samiti, Mandsaur and transfer order of respondent No.3 - Mansingh Muniya by which he has been transferred from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni and submitted that both the orders were passed by the respondent Nos.1 and 2 on administrative ground. The order of transfer can be interfered on the ground of mala-fides or if it is passed in violation of statutory provision .
8. The scope of judicial review in respect of transfer orders are very limited. The is well settled on this subject.
9. The facts of the case are that the present appellant - O.P. Sharma was earlier posted as Krishni Upaj Mandi Samiti, Manawar and by order dated 23/12/2016 he was transferred from Manawar to Ujjain. Within a short span of about seven months, the appellant by order dated (respondent No.3 therein) 11/07/2017 has been transferred back to Krishi Upaj Mandi Samiti, Mandsaur. By a separate order passed on the same day i.e, on 11/07/2017 the respondent No.3 has been transferred from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni. One of the ground in the writ petition that respondent No.3 (writ petitioner therein) - Mansingh Muniya has been transferred from Krishi Upaj Mandi Samiti, Katni just to accommodate the present appellant. He has not completed the normal period of three years at Mandsaur as he was transferred to Mandsaur by order dated 31/12/2015 and within a period of 19 months he is now again transferred to Katni. It was also stated that the performance of the present appellant at Krishi Upaj Mandi Samiti, Mandsaur was not good whereas the performance of respondent No.3 at Mandsaur was good.
10. The respondent No. 3 is Secretary Grade I (Super A category) in the Krishi Upaj Mandi whereas the appellant is an employee of the Oil Federation and is on deputation and the respondent No.3 is sought to be replaced by the appellant by impugned order whereas in terms of Ruled 82 of the Madhya Padesh Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ki Gathan Ki Riti Tatha Anya Vishaya) Niyam, 1980, Secretary Grade -I can be appointed from deputation only from the agricultural department or from amongst the Secretaries of Grade-II. The learned writ court considering the aforesaid ground which was raised by the respondent No.1 made an observation that the writ court is not appreciating the relative performance of respondent No.3, but was of the opinion that as the respondent No.3 was Secretary Grade - I (Super A Category) in the Krishi Upaj Mandi, whereas the appellant was an employee of Oil Federation and is on deputation and, therefore, the learned writ Court was of the view that the impugned order so far as it relates to order dated 11/07/2017, the respondent No.3 cannot be sustained and allowed the writ petition.
11. Shri A.K. Sethi, learned Senior Counsel for the appellant has drawn our attention to the Interim Order dated 18/07/2017 passed in W.P. No.4316/2017, order dated 25/07/2017 passed in W.A. No.403/2017, transfer order dated 20/07/2017 of appellant transferring him to Shajapur, order dated 3/08/2017 and both the transfer order dated 11/07/2017 and submitted that the transfer policy dated 19/05/2017 issued by the State Government is not applicable to the Marketing Committee, in view of provisions of Section 7(3) of M.P. Krishi Upaj Mandi Adhiniyam, 1972. He also submitted that on 2/08/2017 an order was passed by the respondent No.2 whereby one Rajesh Kumar Mishra, Secretary Krishi Upaj Mandi, Agar has been granted additional charge of Secretary, Krishi Upaj Mandi Samiti, Shajapur in the light of order dated 25/07/2017, passed in W.A. No.403/2017. He submitted that the learned writ court has committed an error in law in not considering that transfer order dated 20/07/2017 is not on the basis of administrative exigencies as the appellant was transferred by order dated 11/07/2017 which was done on the basis of administrative exigencies as transfer order dated 20/07/2017 is a very frequent one and amounts to unnecessary harassment of the appellant. He lastly submitted that the learned writ court without examining the matter in detail and observed that the performance of respondent No.3 was very good and he was Secretary Grade- 1 (Super A Category) in the Krishi Upaj Mandi whereas the the appellant is an employee of the Oil Federation and is on deputation and decided the matter on merit. With the aforesaid, he prayed that the impugned order be set aside and the both the writ petition filed by the respondent No.3 (petitioner before the writ court) be dismissed.
12. Per Contra, Shri Kamal Airen, learned counsel for the respondent Nos.1 and 2 has drawn our attention to the reply filed in W.P. NO.4316/2017 and submitted that the M.P. State Agriculture Marketing Board has been constituted under Section 40 of the M.P. Krishi Upaj Mandi Adhiniyam, 1972. The Krishi Upaj Mandi Adhiniyam, 1972 is a complete code on the subject. Even otherwise no representation has been filed by the respondent No.3 - Mansingh Muniya against his transfer order or the transfer of respondent No.3. It is submitted that the transfer is a normal incident of service and personal inconvenience has no role in effecting transfers. Employer is the best judge to see that where an employee should be deployed for effective working. It is also submitted that the transfer order of respondent No.3 was made keeping in view the administrative exigencies and also the various incidents that took place in Mandsaur during the past three months regarding the protest of various agriculturists and farmers. In respect of order dated 20/07/2017 by which appellant has been transferred and posted at Krishi Upaj Mandi Samiti, Shajapur he submitted that in pursuance to the interim order passed on 18/07/2017, an alternative arrangement has been made. In respect of minimum 3 years of service for posting, the stand of the respondent Nos.1 and 2 is that there is no hard and fast rule that the employee should complete 3 years of service at a particular place of posting. It is denied that the respondent Nos.1 and 2 are giving undue favour to the appellant and merely on humanitarian grounds or on the basis of personal inconvenience the transfer orders cannot be held bad in law and supported their action and, therefore, prayed for dismissal of both the writ appeals.
13. Shri Piyush Mathur, learned Senor Counsel for the respondent No.3 - Mansingh Muniya has submitted that it is a case of frequent transfer. Against the appellant, penalty order was passed. He was charge-sheeted on 27/06/2012 and an order of repatriation was passed on 4/03/2013. His appeal was dismissed on 24/05/2016. The respondent No.1 just to accommodate the appellant - O.P. Sharma has passed the order of transfer of respondent No.3 from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni. He has also drawn our attention to Rules 80 and 82 of the M.P. Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ki Gathan Ki Riti Tatha Anya Vishaya) Niyam, 1980, and submitted that appellant kept accommodated at his place where post of Secretary Grade- II is available. The posting of appellant at the place of Secretary Grade- I is contrary to the aforesaid Rules 80 and 82 of M.P. Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ki Gathan Ki Riti Tatha Anya Vishaya) Niyam, 1980. Mandsaur and Ujjain is Grade - A Mandi and Shajapur is Grade - B Mandi and therefore the appellant cannot be posted at Mandsaur or Ujjain. He lastly drawn our attention to the reasoning assigned by the learned writ court and submitted that the order passed by the learned writ court is just and proper and prays for dismissal of both the appeal.
14. Shri Sethi, learned Senior Counsel for the appellant has also drawn our attention to grounds 6.1 and 6.3 of the writ petition filed by the respondent No.3 and page - 109 of W.A. No.959/2017 and submitted that order of punishment against the appellant has been set aside. The learned court exceeded its jurisdiction while taking the materials as if the Court was its employer and inspite of fact that there was no ground of mala-fide nor transfer order was passed in violation of statutory provisions and prays for setting aside of the impugned order.
15. 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 pas the order.
16. The Apex Court in the case of Union of India vs. S.L. Abbas (1993) 4 SCC 357, has observed that the Govt. instructions on transfer are mere guidelines without any statutory force and the Court cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee.
17. It is well settled that even if the transfer order is passed contrary to the transfer policy then also the same cannot be a ground to be set aside the transfer order. The writ petition of the appellant regarding his repatriation is pending before Principal Seat at Jabalpur and there is an interim order in favour of the appellant.
18. From the reply of respondent No.1 and 2 it is not in dispute that the transfer of the appellant - O.P. Sharma vide order dated 20/07/2017 is not on the basis of administrative exigencies but the same was passed as an interim measure during pendency of the writ petition. The M.P. State Agriculture Marketing Board has constituted under Section 40 of the M.P. Krishi Upaj Mandi Adhiniyam, 1972 and therefore the transfer policy of the Government of Madhya Pradesh is not applicable to the Marketing Committee by reasoning of provision of Section 7 of Krishi Upaj Mandi Adhiniyam, 1972 Act.
19. Considering the stand taken by the M.P. State Agriculture Marketing Board so also their reply and the fact that both the transfer orders dated 11/07/2017 is passed on administrative exigencies. The shifting of respondent No.3 from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi Samiti, Katni within a period of 18-20 months in a mid session is of no ground to interfere with the transfer matter.
20. As the order dated 20/07/2017 by which appellant has been transferred from Krishi Upaj Mandi Samiti, Mandsaur to Krishi Upaj Mandi, Samiti, Shajapur is in pursuant to interim order dated 18/07/2017 and, therefore, once the writ petition of the respondent No.3 is dismissed, this order shall also automatically come to an end. Both the writ appeals bearing W.A. No.958/2017 and W.A. No.959/2017 filed by the appellants are allowed. No costs.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
pn/
Preetha Nair
2017.11.08 13:26:35 +05'30'