HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 2205/ 2010(S)
Bhupendra Singh Alawa
- V/s -
State of Madhya Pradesh and another
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri V.K.Shukla, learned counsel for the petitioner.
Shri Puneet Shroti, learned Panel Lawyer for respondent no.1 State.
Shri V.S.Shroti, learned Senior Counsel with Shri Vivek Johri, for
respondent no.2.
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ORDER
( 06-04-2010)
The petitioner is working and is presently posted as Assistant
Conservator of Forests in Satpuda Tiger Reserve Hoshangabad. By the
impugned order dated 11-02-2010, he has been transferred from Hoshangabad
to Panna Tiger Reserve, Panna and in his place respondent no.2 Hemant
Kumar Raikwar is being posted. Inter alia contending that the transfer of the
petitioner by the impugned order is only to grant accommodation to respondent
no.2 and the same is illegal, the petitioner has filed this writ petition.
2. Shri V.K.Shukla, learned counsel for the petitioner argued that the
respondent no.2 was transferred to Panna Tiger Reserve Panna only on 20-08-
2009 vide order Annexure P-2. He reported at Panna but thereafter on one
pretext or the other he remained on leave, he was interested to come back to
Hoshangabad and on the intervention of Minister concerned and ignoring the
noting and the observations of the Senior Officers of the department with
regard to posting of respondent no.2 in Hoshangabad which is his home
district, it is argued that the transfer is affected only to accommodate
respondent no.2. Contending that the objections of the departmental authorities
are over ruled and at the instance of Minister and respondent no.2 is again
posted to Hoshangabad, where he had remained for most part of his career,
the petitioner seeks interference into the matter. It is further pointed out by Shri
V.K.Shukla, learned counsel for the petitioner that the petitioner is to retire in
the year 2012, he had made a request for his posting in Dhar or some near
place i.e. his home district but ignoring his request he is transferred to Panna
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only to accommodate respondent no.2. Placing reliance on the judgment of
Supreme Court in the case of Mrs. Shilpa Bose and others Vs. State of
Bihar and others, AIR 1991 SC 532 and the judgment of this court in the
case of Rajesh Kumar Shakya Vs. State of M.P. and another, 2010(1) MPLJ
656 Shri Shukla, seeks interference into the matter.
3. Shri Puneet Shroti, learned Panel Lawyer, for the State has produced
original file of the transfer and points out that after respondent no.2 was
posted at Panna, he submitted a representation to the Minister concerned for
his transfer to Hoshangabad on the ground of ailment of his brother, who was
suffering from Polio and certain other ailment and was required to undertake
treatment in Bhopal and Delhi. The said reasons were also considered by the
local MLA, who recommended for transfer of respondent no.2, the Minister
concerned accepted the representation and recommended for transfer, even
though the department concerned pointed out that respondent no.2 will be
posted in his home district and he has remained in Panna for a short period,
this objection of the department was over ruled and the respondent no.2 was
posted at Hoshangabad after accepting the representation. Shri Shroti submits
that if representation of the respondent no.2 is accepted by the Minister
concerned and on appreciating his difficulties if his posting is ordered, the
same is not illegal, in the absence of any statutory provisions being shown to
be violated or any malafides pleaded and established. Placing reliance on a
judgment of the Supreme Court in the case of Mrs. Shilpa Bose (supra) and
a Division Bench of this court in the case of R.S.Choudhary Vs. State of M.P.
and others, I.L.R. (2007) M.P. 1329, Shri Shroti, submits that there is no
illegality in the action of the respondents. Shri V.S.Shroti, learned Senior
Counsel for respondent no.2 taking me through the application filed by the said
respondent, medical certificates showing the ailment of his brother at Bhopal
and Delhi and the recommendation on the representation made by the
respondent no.2 argues that it is a case where respondent no.2 had expressed
his genuine difficulties in working in Panna and had requested for his posting at
a place near Hoshangabad or Bhopal to enable him to facilitate treatment of
his ailing brother and if the representation is accepted by the Minister, as
forwarded by the MLA it is argued by Shri Shroti, learned senior counsel that
there is no illegality in the same. Placing reliance on a judgment of the
Supreme Court in the case of Mohd. Masood Ahmad Vs. State of U.P. and
others 2007(8)SCC 150 Shri Shroti submits that there is nothing wrong if a
public representative recommends for posting of a person at a particular place.
Accordingly apart from the arguments made by Shri Puneet Shroti, learned
counsel for the State, Shri V.S.Shroti, learned senior counsel for respondent
no.2 submits there is no breach of any statutory provision and the transfer in
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question is beyond the scope of judicial review by a court exercising a limited
jurisdiction in a petition under Article 226 of the Constitution of India and
therefore, there is no merit in the same, accordingly Shri Shroti prays for
dismissal of this writ petition.
4. Having heard the learned counsel for the parties and on going through
the record it is clear that the transfer in question is not challenged by pointing
out breach of any statutory provisions nor is any malafides pleaded or
established, transfer is mainly challenged on the ground that it is ordered for
granting some advantage to respondent no.2 and he is being facilitated by
posting him in Hoshagabad without any administrative exigency.
5. Transfer is an administrative function and a court exercising limited
jurisdiction in a petition under Article 226 of the Constitution of India is only
required to interfere if the decision is taken with regard to the transfer on
extraneous consideration or is based on malafides. In the present case the only
allegation is that the respondent no.2 is being granted adjustment and he is
posted near his home town for a long period of time .
6. In the case of Mrs. Shilpi Bose(supra) the procedure of accepting the
request of posting of a person is approved by the Supreme Court in the
following manner:
” If the competent authority issued transfer orders with a view to
accommodate a public servant to avoid hardship, the same cannot and
should not be interfered by the court merely because the transfer order
were passed on the request of the employees concerned. The
respondents have continued to be posted at their respective places for
the last several years, they have no vested right to remain posted at
one place. Since they hold transferable posts they are liable to be
transferred from one place to the other. The transfer orders had been
issued by the competent authority which did not violate any mandatory
rule, therefore the High Court had no jurisdiction to interfere with the
transfer orders.”
7. Similarly the scope of judicial review in a case of transfer is considered
by the Division Bench of this court in the case of R.S.Choudhary (supra) and
the principle is prescribed in the following manner:
” 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
mist 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 mala fide
or malicious and should be tested on the anvil and touchstone of
4acceptable reasonableness. In 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 cases 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 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.S”
8. However, in the case of B. Varadha Rao Vs. State of Karnataka and
others, AIR 1986 SC 1955, it is held by the Supreme Court that in the absence
of administrative exigency and if it is found that the transfer is on extraneous
consideration interference can be made. If the facts of the present case are
scrutinized in the back drop of the aforesaid principle, it would be seen that in
the present case the respondent no.2 submitted his representation to the
department so also to Minister concerned of the Department and a MLA of the
area forwarded his recommendation to the Minister. In the representation he
had sought his posting at Bhopal or Hoshangabad to facilitate treatment of his
brother who was undergoing constant treatment in Delhi and Bhopal. The said
facts are evident from the documents available on record of the original file. If
the aforesaid representation is accepted and if the administrative authorities
deem it appropriate to grant benefit to an employee by allowing his
representation, a writ court cannot sit over this decision of the administrative
authority as if it is exercising appellate jurisdiction.
9. In the absence of any statutory provisions being shown to be violated or
malafides established, a writ court is not supposed to interfere with such an
administrative decision. In the present case while taking the administrative
decision, no rule or regulation is found to be breached nor any malafide
established. The only ground is that respondent No.2 is being granted
adjustment at Hosangabad. That by itself is not a ground for interference.
10. As far as transfer made on recommendation of the Minister and public
representative are concerned in the case of Mohd. Masood Ahmad (supra)
the same has been proved and the matter is so dealt with:-
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“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 Onkar Nath 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. Alter 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 MP 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.”
11. In the present case also the Minister concerned appreciating the
difficulties of respondent no.2 having allowed his representation merely
because observation of the administrative authority are over ruled by the
Minister concerned that by itself cannot be a ground for holding malafides to
be established and interference made. This is a case where the representation
of respondent no.2 is considered by the administrative authorities and he is
granted benefit of posting by allowing his representation, this being
permissible in the light of the principles laid down in the cases referred to
hereinabove, this court does not find any ground to interfere in the matter.
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12. As far as posting and adjustment of petitioner in his home town is
concerned, it is for the administrative authorities to consider the representation
of the petitioner in this regard and decide it by a speaking order. Accordingly,
finding no error in the order of transfer passed and directing the respondents to
consider the representation of the petitioner for his posting in or near his home
town pending his retirement in the year 2012.
13. This petition is dismissed without any order so as to cost.
(RAJENDRA MENON)
JUDGE
hsp.