--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: Hon. Mr. S. C. Sharma, J WRIT PETITION NO. 1689/09 (S) BUDDHI PRAKASH SHARMA Vs. State of MP & others * * * * * [ J U D G M E N T ] ( 09/11/2010) The petitioner before this Court has filed this present petition being aggrieved by the order dt. 28/2/09 by which the petitioner has been transferred from Mhow to Seoni. The contention of the petitioner is that he was appointed as Forest Ranger in 1983 and was posted on 5/7/84 at Bhopal. He has further stated that on 28/5/85 he was transferred from Bhopal to Khargone and thereafter he was transferred on 24/12/88 from Khargone to Khandwa. The petitioner has further stated that on 27/4/01 he was transferred from Indore to Ralamandal Sanctuary, Indore and by an order dt. 5/9/08 he was transferred to Forest Range office, Mhow. Petitioner has further stated that by an order dt. 28/2/09 he was transferred to Seoni at working plan circle. The petitioner has raised various grounds before this court while challenging the aforesaid order. His contention is that the State Government has framed a policy as contained in Annexure P/7 dt. 22/9/01 and as per the aforesaid policy those forest --- 2 --- rangers who have earlier worked in a Sanctuary are exempted from being posted in a working plan. The petitioner has further stated that the aforesaid policy also provides for exemption in respect of forest rangers to be posted in working plan in case they have crossed the age of 48 years. Petitioners contention is that he has completed 7 years in a Sanctuary and therefore the impugned order dt. 28/8/05 is bad in law. He has also argued before this court that the order of transfer amounts to a frequent transfer and therefore it deserves to be quashed. Learned counsel for the petitioner has enclosed a judgment delivered by this Court in the case of Ravindra Singh Kushwaha Vs. State of M.P. (WP No. 15649/2007(s) wherein in similar circumstances the transfer / posting order was held to be bad. Petitioner has also relied upon a judgment delivered by the apex court in the case of Verdarao Vs. State of Karnataka (AIR 1986 SC 1955) and his contention is that the transfer order is bad in law keeping in view the aforesaid judgment of the apex court. He has also relied upon a judgment delivered in the case of Director, School Education, Madras Vs. O. Karuppa Thivan & another (1994 Supplementary (2) SCC 666 and his contention is that the transfer order being a midsession transfer deserves to be quashed. The petitioner has also filed an order passed by this court in WP NO. 7121/10(s) Sudhir Vs. State of M.P. & ors., dt. 12/10/10 and his contention is that the learned Single Judge in the aforesaid case has --- 3 --- also quashed a transfer order passed in similar circumstances. He has also brought to the notice of this court an order in the case of Suresh Vs. State of MP & ors., dt. 27/9/10 in WP NO. 1720/10(s) wherein a transfer order transferring an employee in the working plan has been set aside in similar circumstances. A reply has been filed in the matter and the contention of the respondent State is that the petitioner was transferred on 5/9/08 to Ralamandal Sanctuary, Indore and thereafter he was transferred to Indore. The respondent State has not disputed that the petitioner was posted at Ralamandal Sanctuary for a period of about 7 years. It has been stated by the respondents in their return that the earlier policy of the State Government dt. 22/9/01 was modified by a subsequent policy issued by the State Government on 16/9/03 and exemption was granted only to those officers who were posted earlier under a working plan. Learned counsel for the respondent State has brought to the notice of this court a judgment delivered by Division Bench of this Court in W A NO. 289/09 B.P.Singh Vs. State of MP & ors., wherein the Division Bench of this court while dealing with a transfer of an employee to working plan in similar circumstances has held that the policies issued on the subject are not binding in nature and the appeal preferred by the employee therein has been dismissed. It has also been brought to the notice of this court a SLP was preferred before the apex court and the apex court has also dismissed the SLP. --- 4 --- Learned Government Advocate has vehemently argued before this court that the judgment enclosed along with the writ petition (Annexure P/14) passed in WP NO. 7121/10(s) has not considered the judgment of the Division Bench delivered in the case of B P Singh & ors. Vs. State of MP & ors., and therefore this court is left with no other choice except to follow the judgment delivered by the Division Bench of this court. She has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case the petitioner was earleir posted at Ralamandal Indore which is certainly a Sanctuary and the same has not been disputed by the State Government. The petitioner was posted by an order dt. 27/4/01 to Ralamandal Abhaiaran and has continued in the Sanctuary upto 5/9/08. He was transferred from Ralamandal Indore to Mhow on 5/9/08 and thereafter he has been transferred to 28/8/09 to Seoni in a working plan. Learned counsel for the petitioner has relied upon the judgment delivered in the case of Ravindra Singh Kushwaha Vs. State of M.P. (Annexure P/9) as well as a judgment delivered in the case of Sudhir Singh (Annexure P/14). Both the aforesaid judgments have been delivered by learned Single Judge of this court whereas the judgment which has been relied upon by the learned Government Advocate in WA NO. 289/09 --- 5 --- is a judgment delivered by the Division Bench. The Division Bench of this Court has considered the judgment delivered by the apex court in the case of T N Bhardwaj Vs. State of MP (Civil Appeal No. 6682/2005). The Division Bench of this Court in the aforesaid case has held as under : 2. The facts leading to the present appeal are that the appellant challenged the legality and validity of the order of his transfer dated 25.2.2009 whereby he was transferred from the post of Range Officer to the post of Working Plan, Betul Circle, M.P. It was contended by him that he had been transferred on six occasions during the last 1½ year period and persons having the longer stay i.e. the respondents No.4 to 8 have not been transferred. 3. The learned single Judge arrived at a conclusion that since the petitioner was transferred from one office to another in the same forest division of Betul and the order of transfer is also not contrary to statutory provision or mala fide. On these grounds the learned single Judge refused to interfere in the order of transfer. 4. On behalf of the appellant it is contended that the order of transfer is contrary to the policy of the State Government made in relation to working plan and it is also contended that the policy of transfer is binding on the respondent. He relied upon the judgment passed by the Apex Court in Civil Appeal No.6682 /2005 (T.N. Bhardwaj vs. State of M.P. & others) decided on 8.11.2005. --- 6 --- 5. In the present appeal, a Division Bench of this Court vide its order dated 12.5.2009 had directed the respondents to decide the representation of the petitioner and till then status quo was directed to be maintained. The aforesaid direction was given by this court in view of the judgment passed in T.N. Bhardwaj (supra). 6. It is to be seen that the judgment passed in T.N. Bhardwaj (supra) was considered by a Division Bench of this Court in R.S. Chaudhary vs. State of M.P. and others, I.L.R. (2007) 1329 (MP) and in this reference the relevant paragraphs 26 to 36 from the said judgment are reproduced as under:- “26. Presently, we shall proceed to refer to the order passed by the Apex Court in T.N. Bhardwaj (supra). It reads as under:- “The appellant, challenging the order of transfer, has placed strong reliance on the two guidelines, one dated 12th March 2001 and the other dated 22nd September, 2001, both issued in the name of the Governor of Madhya Pradesh. Reference has also been made to guidelines dated 16th September, 2003. According to the appellant, he has worked in the Working Plan Unit or post equivalent thereto for a period of nine years, namely, from 1983 to 1988 and also from 1994 to 1997. The contention is that the appellant cannot again be posted in the Working Plan Unit having regard to the stipulation in any of the three guidelines. The High Court has not examined the issue whether the order of transfer contravene the guidelines or not and has proceeded only on the basis that the guidelines cannot be enforced the same being not statutory in nature. Learned Counsel for the respondent very fairly but rightly has conceded that the guidelines would be binding on the Government --- 7 --- since there is no statutory rule or statutory instructions contrary thereto. He has also drawn our attention to the averments made in the order of Chief Conservator of Forests dated 17th May, 2004 rejecting the representation of the appellant and stating that he was never posted in the Unit, as such he is not entitled to the concession as stipulated in clause 3(c) and (d) to the policy of the Government dated 16th September, 2003. If what the appellant says is correct about the posting the nine years as afore-noted, this observation in the order rejecting representation may not be correct. We have, however, not gone into this aspect since it seems to have not been highlighting before the High Court. The High Court has not examined this issue. Under these circumstances, we are of the view that the appropriate course to follow is to set-aside the impugned order and request the High Court to decide afresh Writ Petition No. 2998 of 2004 proceeding on the basis as above- noted that the guidelines are binding on the Government. 27. At this juncture, we think it condign and seemly to understand the effect and impact of the decision rendered in T.N. Bhardwaj (Supra). Mr. R.N. Singh, learned Advocate General for the State would submit that the decision has been rendered by the Apex Court on concession and, therefore, is not a binding precedent. He has invited out attention to the decision in Uptron India Ltd. Vs. Shammi Bhan and another, AIR 1989 SC 1681 wherein it has been held as under :- 23………………This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing --- 8 --- Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place. 28. The learned Advocate General for the State has also commended us to the decision in Kulwant Kaur Vs. Gurdial Singh Mann (dead) by L.Rs and others AIR 2001 SC 1273 wherein it has been held as under:- “2 The concession thus recorded in Banarsi Das’s case as noticed above obviously renders the submissions of Mr. Mehta of some substance. Concession, if made and in the event the Court proceeds on the basis of such a concession, the decision cannot by any stretch be termed to be a binding preceding and as such the previous decision (1998)2 SCC 81 does not and cannot have the sanctity and solemnity of a binding precedent. 29. Mr. A.P. Shroti, learned Counsel for the appellant would submit that this is not an order on concession a the Apex Court at one point of time has held that the counsel for the respondent has rightly conceded and further their Lordhships have held that the High Court should decide the matter on the basis that the guidelines are binding on the Government. In Director of Settlements, A.P. and others Vs. M.R. Apparao and another, (2002) 4 SCC 638 while dealing with the concept of concession and the opinion of the Court their Lordships have held as under:- “15. Bearing in mind the host of decisions cited by Mr. Rao and on examining the judgment of this Court dated 6-2-1986 in Civil Appeal No. 398 of 1972 we have no doubt in our mind that the conclusion of the Court that the amendments are constitutionally valid and the view expressed by the Andhra Pradesh High --- 9 --- Court is erroneous is a conscious decision of the Court itself on application of mind to the provisions of the Act. It is no doubt true that the counsel for the respondent Venkatagiri had indicated that the respondent will have no objection to the judgments and orders of the High Court under appeal, being set aside. But that by itself would not tantamount to hold that the judgment is a judgment on concession. Even after recording the stand of the counsel appearing for Venkatagiri when the Court observed "We are also of the view that the two amendments referred to above, are constitutionally valid", the same is unequivocal determination of the constitutional validity of the Amended Act, it cannot be dubbed as a conclusion on concession, nor can it be held to be a conclusion without application of mind, particularly when the very constitutionality of the Amendment Act was the core question before the Court. It is also apparent from the further direction when the Court holds: “we further make it clear that the period during which interim payments are payable under the above said Act ends with the date of the original determination by the Director under Section 39(1) thereof": This conclusion is possible only after application of mind to the provisions of Section 39 as well as other provisions and the Amendment that was brought into the statute book. In the aforesaid premises, our answer to the first question is that the decision of this Court dated 6-2-1986 must be held to be a 'law declared' within the ambit of Article 141 of the Constitution and the constitutional validity of the Amendment Act 1971 is not open to be re- agitated and that the judgment of Andhra Pradesh High Court holding the Amendment Act to be constitutionally invalid had been set aside by this Court.” 30. In view of the aforesaid, we are disposed to think that the decision rendered in T.N. --- 10 --- Bharadwaj (supra) is law declared by the Apex Court. 31. Be it placed on record that the decision rendered in Darshjit Singh Grewal and others (Supra) was delivered on 12/07/1993 and the decisions in S.L. Abbas (supra) was rendered on 27/04/1993. Thus, the decision in S.L. Abbas (supra) was delievered on earlier point of time. In the said case their Lordships had opined that the guidelines do not confer upon a government employee and enforceable right and unless an order of transfer is violative of statutory mandatory or malafide the Courts should not interfere with it. Their Lordships further observed that while ordering an order of transfer the authority must keep in mind the guidelines issued by the Government. 32. Submission of Mr. Shroti is that the aforesaid decision being a three-Judge Bench decision is binding precedent and the law laid down in the earlier cases are two Judge Bench decisions. Be it placed on record that the larned Counsel for the appellant had not referred to us to the decision rendered in the case of Major General J.K. Bansal (supra). The said decision has been rendered by three Judges on 23/08/2005 which is earlier point of time. In the said case the three Judge Bench has approved the ratio laid down in the cases of Mrs. Shilpi Bose (supra), S.L. Abbas (supra) and National Hydroelectric power Corporation Ltd. (supra) 33. A Full Bench of this Court in Jabalpur Bus Operators Association and others Vs. State of M.P. and another, 2003 (1) MPHT 226 (FB) has expressed the view as under:- “In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is --- 11 --- binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balveer Singh's case (AIR 2001 Madh Pra 268) (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over ruled on this point. 34. To arrive at the said conclusion the Full --- 12 --- Bench has placed reliance on the decisions rendered in the cases of Union of India and another Vs. Raghubir Singh (dead) by L.Rs Etc. AIR 1989 SC 1933, Chandra Prakash Vs. State of U.P. and another, 2002 AIR SCW 1573, N.S. Giri Vs. Corporation of City of Mangalore and others, (1999) 4 SCC 697, Union of India and others Vs. Hansoli Devi and others, 2002 AIR SCW 3755, and Indian Oil Corporation Ltd. Vs. Municipal Corporation and another, AIR 1995 SC 1480. 35. Fulcrum of the matter is whether the decision in T.N. Bhardwaj (supra) govern the field and would be the binding preceding or that of the decision rendered in J.K. Bansal and others (Supra) would be binding or both can simultaneously be valid. In the case of J.K. Bansal and others (supra) a three Judge Bench of the Apex Court has referred to the decisions in Mrs. Shilpi Bose (Supra) and National Hydroelectirc Power Corporation Ltd. Vs. Bhagwan (Supra). Their Lordships have not only noticed but have quoted exhaustively the ratio laid down in the said decisions. Thus, the said decisions have been approved by the three Judge Bench. In T.N. Bharadwaj (supra) what their Lordships have stated that the guidelines are binding on the Government. The binding nature of the guidelines, in our humble view, has tobe understood in the context of Mrs. Shilpi Bose (Supra), S.L. Abbas (supra) Jagjit Singh Mehta (supra) and S.S. Kaurav and others (Supra). To elaborate the instructions or the guidelines do not confer any enforceable right on an employee. He has no vested right to remain at one post or the other. However, while ordering a transfer the authority must keep in mind the guidelines issued by the Government whether an order of transfer is passed in violation of the guidelines or the executive instructions. The action of the State Government should not be malafide or malicious and should be tested on the anvil and touchstone of acceptable reasonableness. In --- 13 --- view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be started. We proceed to hold that in case an order of transfer is assailed on the ground that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping mind the policy guidelines with utmost objectivity. 36. Now to the present appeal. The learned Single Judge, as it perceivable, has admitted the writ petition. He has not adverted to the interim relief. The appellant has already been relieved. Passing of an interim order would have been mandatory in nature. We are disposed to think that should not have been passed. In the writ appeal, we have protected the appellant by directing that no coercive steps shall be taken for his not joining at the transferred place. Be it placed on record, such an order should not passed in a routine manner, but as the law was to be explained, an apprehension was expressed by Mr. Amalpushp Shroti, learned Counsel for the appellant that he would be harassed by the authority, the said protective order was passed. In the obtaining factual matrix we would allow the protective order to continue and request the learned Single Judge to dwell upon the merits of the writ petition on the basis of exposition and enunciation of law stated hereinabove by explaining the dictum in T.N. Bhardwaj (Supra) --- 14 --- within a period of one month.“ 7. It is apparent from the foregoing paragraphs that the Division Bench of this Court by taking into account the three Judge Bench decision passed in T.N. Bhardwaj (supra) has held that it does not have the binding precedent. 8. In view of the aforesaid, we are of the considered view that the policy/guideline relating to transfer is not binding. We do not find any substance in the appeal and accordingly the present appeal stands dismissed. Keeping in view the aforesaid judgment delivered by the Division Bench of this court, the policy guidelines issued by the State Government relating to transfer are certainly not at all binding in nature and in the present case the petitioner has been posted for the first time in his entire service carrier to a working plan and therefore no case for interference is made out in the matter. Not only this the petitioner