1 THE HIGH COURT OF MADHYA PRADESH WP 15649/2019 Raghvendra Taksali vs. The State of MP and Ors. Gwalior, Dated :02/08/2019 Shri MPS Raghuvanshi, Counsel for the petitioner. Shri [ENTITY], Government Advocate for the respondents/ State.
This petition under [SECTION] of the [ACT] has been filed, challenging the order dated 05/07/2019 (Annexure P1) passed by respondent No.2, by which the petitioner, who is working on the post of [ENTITY], has been transferred from [ENTITY] Halka Bagwaj, Tehsil Sheopur to Tahsil Vijaypur.
It is submitted by the counsel for the petitioner that earlier, by order dated 16/07/2017 (Annexure P/3), the petitioner was transferred from Baroda to Sheopur. Now, within a period of two years, he has been transferred from [ENTITY] Halka Bagwaj, Tehsil Sheopur to Tahsil Vijaypur. It is further submitted that the petitioner had made a representation with a request that in case, if his transfer order cannot be cancelled, then it may be amended and the petitioner may be posted in Tahsil Baroda. However, the said representation has been rejected by order dated 23rd July, 2019, by holding that there is no vacant post of [ENTITY] in Tahsil Baroda, however, on the same day, three persons were posted in Tahsil Baroda. It is clear that posts of [ENTITY] were vacant in Tahsil Baroda. Therefore, it is clear that in spite of vacancy in Tahsil Baroda, the representation of the petitioner has been wrongly rejected. It is further submitted by the counsel for the petitioner that since the petitioner is the Block President of Madhya Pradesh Rajya Karmachari Sangh, Sheopur, therefore, he is exempted from transfer.
Heard the learned counsel for the petitioner. It is true that the petitioner has been transferred after completing his tenure of two years. Clause 11.4 of the transfer policy does not provide for complete ban on transfer prior to completing the tenure of three years, but merely it provides that generally, after completing the tenure of three years, a person can be transferred.
It is next contended by the counsel for the petitioner that since the petitioner has opted for his posting at Baroda but on the same day three persons were posted in Baroda, whereas the request of the petitioner for his transfer to Baroda has been rejected on the ground that there is no vacancy in Baroda.
By order dated 16/07/2017 (Annexure P3), the petitioner was transferred from Baroda to Sheopur. Thus, the respondents while considering the above fact had decided not to transfer the petitioner to Baroda, then the decision of the respondents cannot be said to be arbitrary. Even otherwise, it is for the respondents/employer to consider the place of posting of its employees. No one can claim that he should be posted at a particular place.
So far as the contention of the petitioner that he is Block President and being office-bearer of Madhya Pradesh Rajya Karmchari Sangh, he is exempted from his transfer is concerned, the certificate Annexure P6 annexed along with the petition indicates that the Secretary, Madhya Pradesh Rajya Karmchari Sangh, Sheopur had declared the petitioner as elected Block President. However, it is not clear from the certificate that whether any direct election had taken place or not. Thus, it cannot be said that the petitioner is an elected office-bearer. Even otherwise, in the writ petition, the petitioner has clearly mentioned himself to be an office-bearer of recognized Employees' Union, but he has not made any pleading that whether he was either elected or nominated. Thus, this Court is of the view that the petitioner is not entitled for the protection of Clause 11.7 of the transfer policy. Even otherwise, the transfer policy is not enforceable by law.
The scope of judicial review of transfer under [SECTION] of the [ACT] has been settled by the Supreme Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] and it has been held that the transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under [SECTION] 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 orders, were not competent to pass the orders.
The Supreme Court in the case of [PRECEDENT] has held as under:-
"6. An order of transfer is an incident of Government Service. Fundamental [SECTION] says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority."
Fundamental [SECTION] says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right. The Supreme Court in the case of [PRECEDENT] has held as under :
"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the 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. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules "
The Supreme Court in the case of [PRECEDENT], has held as under :-
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."
The Supreme Court in the case of [PRECEDENT], has held as under :
"10. In the writ petition, the transfer order has been assailed by the present Respondent 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not even find any contravention of transfer policy in transferring Respondent 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.
11. In the present case, the High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant."
The Supreme Court in the case of [PRECEDENT] has held as under :
"7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made.
Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
Thus, considering the contentions made by the Counsel for the petitioner in the light of the law, laid down by the Supreme Court, this Court is of the considered opinion, that no case is made out warranting any interference in the matter.
Accordingly, this petition fails and is hereby dismissed.
([ENTITY]) Judge MKB