HIGH COURT OF MADHYA PRADESH 1 WP No.13773/19 WP No.13773/2019 ([PRECEDENT], Dated : 17.7.2019 Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], learned counsel for the respondent/State.
Heard on the question of admission and interim relief.
By this writ petition under [SECTION] of the [ACT] the petitioner who is working as [ENTITY] has challenged the transfer order dated 4.7.2019, whereby he has been transferred from Tehsil Bhanpura to Tehsil Suvasara.
Learned counsel appearing for the petitioner submits that the petitioner was given the additional charge on 30.1.2019 and in a shortwhile he has been transferred and that the petitioner is the President of Tehsil Union of M.P. [ENTITY] sangh, therefore, he cannot be transferred in view of Clause 11.17 of the transfer policy. He further submits that wife of the petitioner is working at Bhanpura.
As against this, learned counsel for the respondents has supported the impugned order of transfer.
Having heard the learned counsel for the parties and on perusal of the record, it is noticed that by the impugned order the petitioner has been transferred on administrative ground. It has not been disputed by counsel for the petitioner that the transferred place is only 70 k.m. away from the present place of posting. The impugned order is a general order of transfer, whereby several such employees have been transferred. So far s the order dated 30.1.2019 is concerned, that relates to giving of additional charge of the Halka Number/Gram HIGH COURT OF MADHYA PRADESH Panchayat and on that basis the impugned order of transfer cannot be faulted. The impugned order also cannot be interfered with on the ground that the petitioner is an office bearer. This Court in the matter of [PRECEDENT] vide order dated 20.3.2019 passed in [CASE NUMBER] taking note of the judgment of the Gwalior Bench, has rejected the similar plea by holding as under:-
"The issue if the order of transfer can be interfered with on the ground that the employee concerned is the office bearer of the association has been decided against the petitioner by the Gwalior Bench in the matter of [PRECEDENT] in [CASE NUMBER] vide order dated 1/10/2018 by holding as under:-
"4.2 As regards immunity from transfer because petitioner is an office bearer of employee's union, the same need not detain this court for long as this issue has been decided by the earlier decision of this court in the case Laxmi Narayan Gupta Vs. The State Of Madhya April, 2015 by holding that no justciable right to successfully assail the order of transfer is available to office bearer of the employees Union. Relevant paras of the said decision are reproduced below:-
"The submission of the petitioner of being office bearer and therefore, immune from transfer is of no avail. The said protection undoubtedly arises out of transfer policy which has been held to be not justiciable.
The decision of the Apex Court in the case of [PRECEDENT] is worthy of reference whose relevant paragraph is reproduced herein below :-
4. Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any prescribed norms of principles governing the transfer (see [PRECEDENT] HIGH COURT OF MADHYA PRADESH (Suppl) 4 SCC 169). Unless the order of transfer is visited by malafide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India vs. [ENTITY] (1993) 4 SCC 357. Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it. In [PRECEDENT] it was observed as follows:
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in [PRECEDENT]"
4.3 The ratio laid down by the Apex Court in the case of [ENTITY] (supra) has been subsequently followed in the cases of [PRECEDENT]; [PRECEDENT] & [PRECEDENT]
4.4 Subsequently in the case of Dr. Pramod Kumar HIGH COURT OF MADHYA PRADESH Sirothia Vs. State of M.P. in [CASE NUMBER] (s), decided on 8/7/2015 facing with the same fact situation has held as under:-
"As regards the ground of immunity for office bearer is concerned, this Court has already held that the same is not available to him in view of the fact that an office bearer being a leader should lead by example and not hide behind the members of the Association when he is faced with an order of transfer. Moreover, the immunity is based on the principles that the right to from and pursue an association is not breached,. In the present age of scientific development, where fast means of communication are available, the personal presence of an office bearer at the headquarter is not necessary. He can easily exercise the duties of office bearer even from a place away from the headquarter of the association. Thus, the said ground is of no avail to the petitioner."
4.5 It is settled principle of law in service jurisprudence that the policy of transfer is a mere guideline for the purpose of assisting employer to ensure proper and smooth administration and therefore does not give justiciable right even if a case of violation of any of the provision of the policy is made out.
5. In view of above, in the absence of any ground this court declines interference and grants liberty to the petitioner to pursue his representation before the competent authority.
No cost."
Similar ground has been rejected by the Principal seat while dismissing the [CASE NUMBER] by order dated 4/4/2018 by holding as under:-
"5. This is trite law that action of transfer is basically a managerial function. Transfer order can be interfered with if it runs contrary to any statutory provision (not policy guidelines), proved to be malafide, changes service condition of an employee to his detriment or passed by incompetent authority. The employer is the best judge to decide which employee should be transferred and whose services are suitable at a particular place. This court cannot sit and decide whether respondent No.3 should have been transferred prior to the petition er. Moreso when there exists no such rule which make it obligatory for the employer to transfer the HIGH COURT OF MADHYA PRADESH employees on the basis of station wise seniority. The question whether the petitioner has any enforceable right to remain posted at the same place of posting being an office bearer was finally decided by this Court in [PRECEDENT] decided on 17.8.2017. In the said case, this Court opined as under :-
"A plain reading of transfer policy shows that normally immunity is granted from transfer to the office bearer so that they can pursue their association activities while remain posted at a place for which they are elected as office bearer. The petitioner is admittedly an office bearer of district level and he is transferred within the district. Therefore, by no stretch of imagination, his transfer will adversely affect his association activities. It will not deprive the petitioner to act as treasurer. Thus, the first ground is rejected being devoid of substance. Even otherwise Clause 8.19 of the Policy dated 19.05.2017 shows that it is directory in nature. The immunity from transfer is given to the office bearers "ordinarily". No enforceable right is created by clause 8.19 to remain posted at the same place. The administrative exigency and job requirement of the department must be given preference over association activities. The government employee must realize that he is appointed to perform the duties of his post and not to act as office bearer of an association. For this reason also, the said clause of policy is of no assistance to the petitioner. "
(Emphasis supplied)
6. In the light of aforesaid, I find no substance in this petition. Petition fails and is hereby dismissed."
Having regard to the aforesaid orders, the petitioner is not entitled to the benefit of the order dated 24/6/2015 passed in [CASE NUMBER] and [CASE NUMBER] and the order dated 11/6/2015 passed in [CASE NUMBER] because the issue involved herein has not been decided in these orders."
HIGH COURT OF MADHYA PRADESH It has not been pointed out that the impugned order suffers from malafides or any statutory provision has been violated while passing the impugned order.
Having regard to the aforesaid, I am of the opinion that the impugned order does not suffer from any illegality and no case for interference is made out. The writ petition is accordingly dismissed.
C.C. as per rules.
([ENTITY]) Judge trilok/-