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Vaishwanar Mishra v/s State of M.P. & Others

    WP. No. 17387 of 2021

    Decided On, 14 September 2021

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE PRAKASH SHRIVASTAVA

    For the Appellant: V.D.S. Chauhan, Learned Counsel. For the Respondents: Sunil Rao, Learned Panel Lawyer.



Judgment Text

1. Heard through Video Conferencing.

2. Shri V.D.S. Chauhan, learned counsel for the petitioner.

3. Shri Sunil Rao, learned Panel Lawyer for the respondents/State.

4. Heard.

5. By this petition, the petitioner who is working as Panchayat Secretary has challenged the transfer order dated 06.08.2021 whereby he has been transferred from Gram Panchayat Chapna, Janpad Panchayat Maihar to Gram Panchayat Babupur, Janpad Panchayat Sohawal.

6. The submission of learned counsel for the petitioner is that the transfer of the petitioner has been made on complaint and in this regard he has referred to the complaint made by the general public to the local M.P. (Annexure P/4) and the recommendation of the local M.P. to the concerned Minister dated 31.12.2020. He has further submitted that in term of Sub-rule (7) of Rule 6 of the Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011 an enquiry is required when the transfer is made on complaint. He has further submitted that the transfer policy dated 06.08.2021 and 30.01.2021 (Annexure P/2) has not been complied with while passing the impugned order. In support of his submission, he has placed reliance upon the judgment of the Supreme Court in the matter of Somesh Tiwari Vs. Union of India and others, (2009) 2 SCC 592.

7. Learned counsel for the respondents has opposed the writ petition by submitting that the petitioner has already been relieved on 18.08.2021 and one Ramlal Prajapati has joined in the place of the petitioner.

8. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that though there were serious complaints against the petitioner in respect of the defalcation of money and poor quality work and withdrawing money of MANREGA work by fabricating the attendance and the local M.P. had also recommended the transfer of the petitioner but the impugned transfer order dated 06.08.2021 does not reflect that the transfer of the petitioner is on complaint. The impugned transfer order is a general order of transfer whereby several such Panchayat Secretaries have been transferred and the impugned transfer order also reflects that the transfer of the petitioner is on the administrative ground. The competency of the authority to pass the impugned order of transfer is not under challenge nor any statutory violation has been pointed out or malafidies have been shown or established in the matter. Even otherwise, the Supreme Court in the matter of Mohd. Masood Ahmad Vs. State of U.P. and others reported in (2007) 8 SCC 150 has held that a transfer made on the recommendation of the MLA is not vitiated by observing that:

“7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy vs. Union of India, National Hydroelectric Power Corpn. Ltd. vs. Shri Bhagwan, State Bank of India vs. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. and Onkarnath Tiwari vs. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of 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 Article 226 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.

8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.

9. That part, the co-ordinate Bench in the matter of Rakesh Kumar Urmaliya Vs. State of M.P. and others by order dated 18.08.2021 passed in W.P. No. 15306/2021 has already considered the Rule 6(7) of the Rules of 2011 and has held that the transfer order on the administrative exigency is permissible.

10. So far as the allegation of the counsel for the petitioner that the transfer policy has not been followed, the Division Bench of this Court in the matter of O.P. Sharma Vs. M.P. State Agriculture Marketing Board, Bhopal & Others passed in W.A. No. 958/2017 decided on 06.11.2017 has already held that the transfer policy is mere a guideline and it is not enforceable in the writ jurisdiction of this Court. In the said order, the Division Bench has held as under:-

''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 pass 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.”

11. Hence, the above ground also does not carry the petitioner's case any further.

12. So far as the reliance of learned counsel for the petitioner on

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the judgment of the Supreme Court in the matter of Somesh Tiwari (supra) is concerned, that was a case where it was found that the order was punitive and passed in mala fide exercise of power but no such material is available in the present case. Hence, the petitioner is not entitled to the benefit of the judgment of the Supreme Court in the case of Somesh Tiwari (supra). 13. That apart, it has already been pointed out by the learned counsel for the respondents/State that the petitioner has been relieved and new incumbent has joined in the place of the petitioner. 14. In these circumstances, I am of the opinion that no case for interference in the impugned order of transfer is made out. 15. The writ petition is accordingly dismissed.
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