WP/8996/2016 of SHIV NARAYAN MEWAFAROSH Vs THE STATE OF MADHYA PRADESH on 29 December 2016

29/12/2016

Shri D.K. Katare, counsel for the petitioner.

Shri C.R. Roman, Government Advocate forthe respondents/State.

By this petition, the petitioner has challengedthe order dated 19.12.2016 by which he has beentransferred from Community Health Centre, Porsa,District Morena to Community Health Centre,Vijaypur, District Sheopur.

It is contended by the counsel for thepetitioner that the petitioner is due for retirementon 30[th] April, 2019 and he is suffering from ailmentof Prostate, Blood Pressure, Diabetes and Arthritisand undergoing treatment at Gwalior. It is furthersubmitted that the petitioner is working on the postof Chief Block Medical Officer and is a Class I officerand concurrence of the Chief Minister has not beentaken and as the petitioner has been transferred toa different district and thus, the order of transfer isviolative of transfer policy of the year 2016-2017.

Having heard the learned counsel for thepetitioner it is observed that a Division Bench of thisCourt in the case of R.S.Chaudhary v. State ofM.P. and others [ILR (2007) MP 1329], hasalready held that in case transfer is alleged to becontrary to the policy, the appropriate remedy of thepetitioner is to approach the authority themselvesby filing a representation seeking cancellation/modification of the order of transfer. It is further observed that in the instant case the petitioner hasfiled a representation before the authorities which ispending.

In the circumstances, the petition filed by thepetitioner is disposed of with a direction to theeffect that in case the petitioner approaches therespondent authorities within fifteen days fromtoday along with a copy of the order passed todayand a copy of the petition, the concerned authorityshall consider and decide the representation filed bythe petitioner expeditiously in accordance with lawpreferably within a period of six weeks thereafter.

It is submitted by the counsel for thepetitioner that the effect and operation of the orderdated 19.12.2016 be kept in abeyance till hisrepresentation is decided by the respondents.

This prayer of the counsel for the petitionercannot be accepted in the light of the judgmentpassed by the Division Bench of this Court in thecase of Mridul Kumar Sharma v. State of M.P. &Ors.(W.A.No.552/2015) in which it is held as under:- “This is yet another writ appealquestioning the decision of the learnedSingle Judge who has rejected the writpetition challenging the transfer orderdated 18.5.2015, transferring theappellant from District – Umaria toDistrict – Sidhi. Learned Single Judgewhilst rejecting the writ petition has,however, observed that the appellant isfree to pursue representation before the appropriate Authority.

2. The argument before us is that the

learned Single Judge has committederror in not giving the same benefit asgiven by the coordinate Bench (anotherSingle Judge) on the same day. Relianceis placed on the order dated 4.8.2015passed in W.P. No.12705/2015, whereinthe coordinate Bench observed that tillthe representation of the writ petitionerin that case was decided by theappropriate Authority, the transfer ordershall remain stayed. Indeed, that orderwas passed inspite of rejecting the reliefclaimed in the said writ petitionquestioning the transfer order.

3. Notably, both the orders are passed bythe Single Bench of this Court and,therefore, cannot be cited as bindingprecedent in this intra Court appealbefore the Division Bench. More so, thelegal position is no more res integra. TheSupreme Court has consistently observedthat the representation filed by theemployee does not create any right in hisfavour to remain at the same place fromwhere he has been transferred, until therepresentation is decided. The fact thatrepresentation is pending will be of noavail to the employee concerned. Hemust first join at the transferred place,even if he has to pursue remedy ofrepresentation. Whether the concernedemployee should be permitted to remainat the same place until his representationis decided, is also the prerogative of theappropriate Authority. It is not for theCourt to sit over that subjectivesatisfaction or dictate to the concernedAuthority in that behalf, being purelyadministrative matter. Understood thus,the fact that coordinate Bench (SingleBench) had given relief to another writ petitioner on the same day cannot be thebasis to grant same relief to thisappellant.

4. Counsel for the appellant placedreliance on the decision of the DivisionBench of this Court dated 15.7.2015 inW.A. No.381/2015. Observations in thisdecision, however, will be of no avail tothe appellant in the face of the decisionof the Supreme Court in the case ofGujarat Electricity Board and another Vs.Atmaram Sungomal Poshani reported in(1989) 2 SCC 602, which is directly onthe point. In paragraph 4, the SupremeCourt observed thus:

“4. Transfer of a governmentservant appointed to a particularcadre of transferable posts fromone place to the other is anincidenceofservice.Nogovernment servant or employee ofPublic Undertaking has legal rightfor being posted at any particularplace. Transfer from one place toother is generally a condition ofservice and the employee has nochoice in the matter. Transfer fromone place to other is necessary inpublic interest and efficiency in thepublic administration. Whenever, apublic servant is transferred hemust comply with the order but ifthere be any genuine difficulty inproceeding on transfer it is open tohim to make representation to thecompetent authority for stay,modification or cancellation of thetransfer order. If the order oftransfer is not stayed, modified orcancelled the concerned publicservant must carry out the order oftransfer. In the absence of any stayof the transfer order a public servant has no justification to avoidor evade the transfer order merelyon the ground of having made arepresentation, or on the ground ofhis difficulty in moving from oneplace to the other. If he fails toproceed on transfer in compliancewith the transfer order, he wouldexpose himself to disciplinary actionunder the relevant rules, as hashappened in the instant case. Therespondent lost his service as herefused to comply with the order ofhis transfer from one place to theother.”

(emphasis supplied)

5. Be that as it may, in the present case,it is not as if the two writ petitions werekept pending and inconsistent “interimrelief” granted therein. In fact, both thewrit petitions have been finally disposedof. However, in one case limitedprotection has been given to the writpetitioner therein by another Bench. Inour opinion, in the light of the principleexpounded by the Supreme Court,referred to above, the Court musteschew from issuing such direction - as itinevitably results in dictating theconcerned Authority in respect ofadministrative matter within his domain.Accordingly, the decision pressed intoservice, cannot be treated as a bindingprecedent on the matter in issue and willbe of no avail to the appellant.

6. Accordingly, this appeal is devoid ofmerit. We, however, make it clear that itis for the appropriate Authority toentertain the representation filed by theappellant and including to consider therequest of the appellant to allow him tocontinue at the same place or otherwise.

The appellant must, as per the settledlegal position, report to the transferredplace and pursue his remedy ofrepresentation, particularly when theappropriate Authority before whom therepresentation is pending has so far notfavoured the appellant by allowing him tocontinue at the same place. At best, wemay only observe that the appropriateAuthority must decide the representationexpeditiously, preferably within twoweeks.

In the case of Rambabu Devangan vs. State of M.P. & Ors. (W.P.No.12906/2015), the coordinate Bench of this Court has held as under:- “At this stage learned Counsel for thepetitioner again submits that since thepetitioner has not yet been relieved fromthe post, the operation of the impugnedorder may be stayed till the representationof the petitioner is considered by therespondent-employer.

Such a prayer made by the petitioner,though looks attractive at the first blushbut has to be rejected outrightly in termsof the decision of the Apex Court in thecase of Gujarat Electricity Board andanother vs. Atmaram Sungomal Poshani,(1989) 2 SCC 602, wherein in paragraph4, the Apex Court has observed thus :

“4. Transfer of a governmentservant appointed to a particularcadre of transferable posts fromone place to the other is anincidenceofservice.Nogovernment servant or employeeof Public Undertaking has legalright for being posted at anyparticular place. Transfer from oneplace to other is generally acondition of service and the

employee has no choice in thematter. Transfer from one place toother is necessary in publicinterest and efficiency in the publicadministration. Whenever a publicservant is transferred he mustcomply with the order but if therebe any genuine difficulty inproceeding on transfer it is open tohim to make representation to thecompetent authority for stay,modification or cancellation of thetransfer order. If the order oftransfer is not stayed, modified orcancelled the concerned publicservant must carry out the orderof transfer. In the absence of anystay of the transfer order a publicservant has no justification toavoid or evade the transfer ordermerely on the ground of havingmade a representation or on theground of his difficulty in movingfrom one place to the other. If hefails to proceed on transfer incompliance with the transfer order,he would expose himself todisciplinary action under therelevant rules, as has happened inthe instant case. The respondentlost his service as he refused tocomply with the order of histransfer from one place to theother”

(emphasis supplied)

These aspects have been considered bythe Division Bench of this Court in W.A.552/2015, Mridul Kumar Sharma vs. TheState of Madhya Pradesh & others,decided on 13.08.2015. The DivisionBench has held that the interim stay insuch circumstances cannot be granted by this Court as it is in the domain of theemployer to consider continuance of anyemployee on the place from where he istransferred, till the representation isdecided. The Division Bench has held inparagraph 5 of the said judgment, whichreads thus :

“5. Be that as it may, in thepresent case, it is not as if the twowrit petitions were kept pendingand inconsistent “interim relief”granted therein. In fact, both thewrit petitions have been finallydisposed of. However, in one caselimited protection has been givento the writ petitioner therein byanother Bench. In our opinion, inthe light of the principleexpounded by the Supreme Court,referred to above, the Court musteschew from issuing such direction– as it inevitably results indictating the concerned Authorityin respect of administrative matterwithin his domain. Accordingly, thedecision pressed into service,cannot be treated as a bindingprecedent on the matter in issueand will be of no avail to theappellant.”

In view of the aforesaid, prayer for interimrelief cannot be considered at this stage,which stands rejected.

It is made clear that this Court has notexpressed any opinion on the merits of the case andtherefore the authority would be at liberty toexamine the matter keeping all facts and facets intoconsideration and thereafter either accept or reject (ra)

the representation by passing a reasoned order.

With the aforesaid direction, the petition, filedby the petitioner, stands disposed of.

(G.S.Ahluwalia)Vacation Judge