--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 7869 / 2011 KRIPARAM B. C. AND 16 OTHERS Vs. THE STATE OF MP & 2 OTHERS A N D WRIT PETITION NO. 7873 / 2011 RADHESHYAM S/O KANHAIYALAL & 2 OTHERS Vs. THE STATE OF MP & 2 OTHERS * * * * * O R D E R ( 28/9/2011) Regard being had to the similitude in the controversy involved in the matter, the above cases were heard analogously together and a common order is being passed. The petitioners before this Court, who are working on the post of Patwaris, have filed this present writ petition being aggrieved by the transfer order dt. 21/9/11 passed by the Collector, Indore. The present petition has been filed --- 2 --- jointly by as many as 20 Patwaris serving within the District of Indore. The contention of the petitioners is that they are posted in home Tehsils and they are performing their duties with sincerity and devotion and by the impugned order dt. 21/9/11 they have been transferred out by the respondents within the same District from their present place of posting (from one Tehsil to another Tehsil). The contention of the petitioners is that the transfer policy issued by the State Government which is also on record dt. 20/4/11 does not permit the respondents to issue any such transfer as per clause 2 of the Policy. It has been further stated that after 7/6/11 there is a complete ban in respect of transfers and therefore the petitioners could not have been transferred in the manner and method it has been done. Petitioners have further stated in the writ petition that the current year is an agricultural assessment year and as per Clause 1.9 of the MP Agricultural Assessment Year Circular an employee cannot be transferred during the assessment year and therefore the transfer order is bad in law. It has also been stated in the writ petition that the impugned order is vague in nature and --- 3 --- no specific reason has been assigned in the impugned order by which Patwaris have been transferred enblock. It has also been stated that in similar circumstances the Gwalior Bench of this Court in WP NO. 4526 / 2011 has disposed of the writ petition permitting the petitioners therein to prefer a representation. It has also been stated in the writ petition that the petitioners have been transferred with a revengeful attitude to teach them a lesson as they have gone on strike against the alleged misbehaviour of the Minister Hon'ble Gaurishankar Bisen. Newspaper clippings have also been enclosed along with an application filed by the petitioners for taking document on record. Learned sr. counsel has argued vehemently before this court that such an order could not have been passed transferring the petitioners out of their home Tehsil specially in view of the ban period and the impugned order is bad in law. Lastly it has been stated that some of the petitioners are having less than a year's service to retire. However, no details have been provided in respect of their date of retirement. Learned Government Advocate for the respondent --- 4 --- State has vehemently argued before this Court that as per the policy of the State Government which is reflected in the impugned order itself and also as per the instructions received from the State of MP vide Memo No. 1642 / 1842 / 11, the petitioners have been transferred from one Tehsil to another meaning thereby, they have been transferred from their home Tehsil to other Tehsil. She has also argued before this Court that the petitioners have been transferred to a distance of few kilometres only within the Indore District and they have filed this present petitions njointly without pointing out any individual difficulty which is being faced by them. She has also argued before this court that the petitioners have been transferred out as per the policy decision of the State Government out of their home Tehsil and therefore no case for interference is made out in the matter. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of with the consent of the parties at admission stage itself. In the present case, the petitioners themselves have --- 5 --- admitted in the present writ petitions that they were posted in the home Tehsil and they have been transferred by the impugned order dt. 21/9/11. The impugned order also reflects that the petitioners have been transferred from one Tehsil to another Tehsil, meaning thereby, to a distance of few kilometres by the Collector, Indore as they were posted in their home Tehsil. It is true that the transfer policy provides for a ban after 7/6/11, however, the present case is not a case of routine transfer. Not only this, the Division Bench of this Court in the case of R.S. Choudhary Vs. State of M.P. and others [ILR (2007) MP 1329] in para 35 has held as under:- “Fulcrum of the matter is whether the decision in TN Bhardwaj ( supra ) govern the field and would be the binding precedent or that of the decision rendered in JK Bansal and others (supra) would be binding or both can simultaneously be valid. In the case of JK Bansal and others ( supra ) a three- Judge Bench of the Apex Court has referred to the decision in Mrs. Shilpi Bose (supra) and National Hydroelectric 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 decision have been approved by the three-Judge Bench. In T. --- 6 --- 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 to be understood in the context of Mrs. Shilpi Bose ( supra ), SL Abbas ( supra), Jagjit Singh Mehta (supra) and SS 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 view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred herein above, 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 stated. 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 --- 7 --- 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 in mind the policy guidelines with utmost objectivity.” Keeping in view the aforesaid, as the petitioners have not been able to point out violation of any statutory provision of law, the question of interference by this court in the matter of transfer does not arise. Not only this, the transfer policy also does not create a statutory right in favour of the petitioners. This Court is of the considered opinion that the petitioners have been rightly transferred keeping in view the fact that they were posted in the home Tehsil. It is also pertinent to note that not a single petitioner has pointed out any individual difficulty faced by any one of them warranting interference by this Court. This Court is of the considered opinion that in case if any of the petitioner was facing any other difficulty, he should have filed an appropriate writ petition furnishing all minute details in the matter. Petitioners have levelled allegations against a Minister but the fact is that the Minister has not been --- 8 --- impleaded as one of the respondents and only a bald allegation has been made that the transfer order has been passed at the behest of the Minister. This court is unable to accept the aforesaid allegation specially in view of the fact that the transfer order clearly reflects that the petitioners who are posted in their home Tehsil has been transferred as a matter of policy decision of the State Government out of their home Tehsil. This Court does not find any reason to interfere with the impugned order. Resultantly, the admission is declined. However, a liberty is granted to the petitioners to file individual representations in case they are facing any difficulty in the matter of transfer, like illness, education of their children etc., and in case such a representation is preferred before the competent authority, the same shall be decided positively within a period of 4 weeks from the date of receipt of certified copy of this order. The petitioners shall also be at liberty to file a fresh writ petition in case they are aggrieved by the order rejecting their representation. With the aforesaid, the petitions stand disposed of. No order as to --- 9 --- costs. The other writ petition ie., WP No. 7873 / 2011 is also disposed of with a liberty to the petitioners to prefer representations before the Competent Authority. (S. C. SHARMA) J U D G E KR